Right to mediation exist in every civil case not special as media indicated

This article was published in Kuensel for Saturday Legal Column Series 

This week, both Kuensel and BBS indicated, the right to settle out of court in civil case as some kind of special consideration by Trongsa District Court.  Such news may create confusion among the general public who are ignorant of litigation. However, this remedy known as “negotiated settlement” under the Bhutanese legal system has been a part of our judicial process since decades. In fact, S. DA-3-1 of Thrimzhung Chhenmo provide this right any case including criminal offences except larceny, armed robbery, murder and treason.

Thrimzhung further outlines how the negotiated settlement must be done in detail. These provisions are incorporated into Civil and Criminal Procedure Code 2001 (CCPC). First, S.150 states “ at any stage of the proceedings, it shall be open to the parties to take the help of a Chimi, Gup, Chipon, Mang-mi or Barmi as mediators for mutual settlement of a civil case”. And S.150.1 encourages the parties for mediation all civil cases”. This means right mediation even after filing the suit in the court exist in every civil case.  S.150(2) to S.150 (8) details the process of negotiated settlement. It requires that, a party must first request the court for an adjournment to pursue mediation and  such mediation must be “voluntary consent and signed by the parties and the mediators in their presence”  and execute an negotiate settlement agreement. The agreement must be valid and legal stamped and any party has the right to object the negotiated settlement within ten days after execution. If the agreement is valid, the courts are mandated to dispose off the case negotiated outside the court by issuing summary judgment. This is unique to Bhutanese legal system as such remedies are not available once a case has been officially filed in the courts in other legal systems around the world. 

There are numerous merits in out of court settlement. First, it provides opportunity of win-win situation rather than litigation to help maintain peace and harmony in the community which is of paramount importance in small society like ours. Second, it helps a party to rethink of their case at any stage of the litigation and seek a mediation as instead of full court proceeding where one party will win and other lose creating disharmony. Third, such rights will help reduce burden on the court and thereby improving efficiency and productiveness of judiciary in rendering justice to the people in other disputes. This right will also help reduce cost of litigation and reach a decision at much faster rate. 

Since existence of this right is less known to parties in Bhutan as most litigants who come to court are lay people. Thus, it has become a general practice in all trial courts across the country to give ten days to settle the disputes outside the court upon completion of preliminary hearing in any civil case. Considering difficulty in finding mediators, court-annexed mediation has been established recently to encourage more litigants to mediate within the court premises where formal litigation remains open to the parties, if the negotiated settlement mechanism fails. Therefore, this is one of the visionary wisdoms of our monarchs and forefathers to maintain peace and harmony in the Bhutanese society rather than making the country litigious. Media must create public awareness of existence of such right rather than incorrect information.