This Article was published in Kuensel for Saturday Legal Column Series
Mediation and litigation generally are considered completely different in any legal system and do not co-exist as one. They operate independently and are never recognised as part of formal adjudication within the court system.
Mediation is often considered informal and its decisions are not binding, while litigation is formal and decisions are binding. However, under the dynamic leadership and wise wisdom of our monarchs, the opportunity for mediation was embedded within the judicial system as a part of formal adjudication process. The institutionalisation of court-annexed mediation in all courts is nothing short of re-enforcement of this age-old customary law to bring the justice nearer to people.
In fact, this tradition was incorporated in Thrimzhung Chhenmo and later in the Civil in the Civil and Criminal Procedure Code (CCPC), 2001. Section 150 of CCPC provides “At any stage of the proceedings, it shall be open to the parties to take the help of the members of the concerned Local Government or Barmi as mediators for mutual settlement of a civil case in accordance with the requirements of this Code.” This is completely a unique to Bhutanese legal system.
Therefore, the public must know the conditions in exercising the right to mediation even after filing a suit. Sections 150.1 – 150.8 of the CCPC provides details on this right. In Bhutan, there are number of stages in litigation, such as preliminary, opening, rebuttal, evidence, closing and judgment. Therefore, at any stage of the litigation, but before the judgement, parties to the litigation may “request the Court for an adjournment” to go for mediation. The general practice in Bhutan is, courts mandatorily order the parties to mediate before actual proceeding and give ten days to help the litigants to exercise this right because not many are aware of this right. Second, CCPC requires that, the outcome of the mediation must be in writing and must be “voluntary consent, legal stamped and signed by the parties” in the presence of mediators and decisions are lawful. CCPC also empowers the parties to “raise any objections to the validity of the” mediation outcome within 10 days of the settlement and if there are more than one settlement, the most recent one will prevail over others. The Court is empowered to declare any settlement null and void and ask the parties for full adjudication process when the settlement is not conformity with the laws. The CCPC also allows modifications to the settlement but must be signed by all parties, witnesses and attested within ten days of the agreement.
Although the Section 151 of CCPC does not state that summary judgment is provided when the case is mediated, it seems to be final recourse from the court. The more appropriate legal provision would be introduction of the concept of Consent Judgment as the settlement occurred as result of consent settlements of parties. The advantages of court-annexed mediation over formal proceedings are multifaceted. For example, it will protect the rights of individual parties, reduce the time and cost of litigation, provide avenue for a win-win outcome, ensure peace and harmony among the parties and communities, and reduce the burden on public expenditure. Therefore, every litigant must take advantage such legal rights.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own and do not reflect those of Kuensel.
No comments:
Post a Comment