Following the introduction of federal polity as provided in the Constitution of Nepal, 2015, alternative dispute resolution process and mechanism has received a new impetus with judicial committee functioning to resolve community-based disputes at local level. Training manuals, resource materials and handbooks have been produced to build capacity of the judicial committees to enable them to deliver resolution of disputes. The COVID-19 pandemic made it a need to pursue the virtual platforms for dispute resolution as a consequence of which online dispute resolution (ODR) became increasingly popular in the developed and developing world. Though we, in Nepal, have not been able to use virtual space in dispute resolution, studies and knowledge resources on dispute resolution are accessed from web sources and widely referred to in Nepal.
Mediate.com, a global online knowledge platform on mediation edited by Jim Melamed and Clare Fowler, offers enormously rich materials that have benefitted the Nepali ADR enthusiasts and practitioners. It contains a mine of knowledge resources, perspectives and studies, training modules on alternative dispute resolution dedicated especially to mediation. The articles and knowledge resources of various categories and dimensions, shared though this online portal, are very useful to help promote and strengthen the ADR system.
As a regular browser of the articles, blogs and materials uploaded in the platform, I happened to give a look into a series of peer reviewed articles and videos, among others, under the collective title seven keys to unlock mediation’s golden age uploaded in mediate.com during these days. The seven keys as mentioned include such categorical dimensions of mediation as leadership skills, data and documentation, education and training, profession and services, use of on line technology, government and enabling environment each with supportive articles and videos contributed by some 40 leading authors around the world.
The seven key articles recognise mediation’s extraordinary versatility in resolving disputes. These include deal making, managing interpersonal disputes in families and communities, settling issues in schools and workplace, peace-making between groups and public policy decision-making managing rival interests. As leadership skills of mediators have been emphasised as keys to promote and strengthen mediation, adoption of the values of Edinburgh declaration is considered to be very critical in this regard. This article takes a look into key elements of Edinburgh declaration contributed by John Sturrock in mediate.com. The declaration was adopted by the conference of mediators which was held in the city of Edinburgh, Scotland, under the auspices of the International Academy of Mediators (IAM). Around one hundred mediators from over 20 countries had attended and discussed intensively on different aspects of the mediation.
Edinburgh declaration was in line with the traditions of the great Scottish enlightenment of the eighteenth and nineteenth centuries which made Edinburgh famed as the Athens of the North. The Scottish city of Edinburgh had given an unrivalled leadership in the domains of economics, philosophy and physics led by Adam Smith, David Hume and James Clerk Maxwell. Literature and architecture thrived due to contributions of Robert Burns, Sir Walter Scott and James Playfair. Such Scottish scientific inventions as the telephone, the bicycle, television, penicillin, the refrigerator, among many others, played a part in the modernisation and development of the world.
The conference was addressed by world-renowned negotiation expert William Ury and Scotland’s Minister, Nicola Sturgeon where over hundred mediators and mediation experts signed a declaration setting out what they believe and resolve to contribute to make peace, harmony and understanding in their own respective jurisdictions and the world. In the declaration, they stated that finding common ground and shared interests requires meaningful, serious dialogue and significant commitment from all concerned. Moreover, giving decision-making autonomy wherever possible to the people who are most affected in difficult situations lies at the heart of good problem-solving.
In the declaration mediators expressed their commitment to offer their services to help those in difficult situations in their countries and communities. Mediators expressed their commitment to do all they can to maintain their independence and impartiality in those situations in which they were invited to act as mediators and to build trust in their work as impartial facilitators. Furthermore, they acknowledged and accepted the need to preserve independence and impartiality of mediators to ensure that outcome reached in a dispute is legitimate and acceptable. Applying the ideals of independence and impartiality is a long-term, subtle and complex process which mediators and dispute facilitators need to approach with humility demonstrating that a range of outcomes is possible in the many different contexts and places.
In the declaration mediators reaffirmed their commitment to maintaining and raising professional standards through training, continuing development and sharing of best practice. Moreover, they declared their determination to show respect and courtesy towards all those who are engaged in difficult conversations, whatever views they hold. Similarly, they expressed their determination to enable disputing parties to express their emotions as that may be necessary as part of resolving complex and difficult issues. On top of that, they vowed to listen carefully to all points of views and seek fully to understand what concerns and motivate those with differing views; use language carefully and avoid personal or other remarks which might cause unnecessary offense; and look for common ground whenever possible.
Edinburgh Declaration was thus a seminal and inspirational expression of belief values and principles of mediation. The declaration explains the value and norms underlying mediation. It provides ground norms of mediation like impartiality, self-determination, participation, persuasion, confidentiality which are broadly accepted in the Mediation Act of Nepal too. At a time when world is mired in complex categories of conflicts, values, principles and norms of mediation can offer an effective mechanism to mitigate them.
Written by: Mukti Rijal