Thursday, October 15, 2015
Nobel Profession
The following opinion piece was published on October 14, 2015 in Republica. The direct link is here.
Nobel Profession
by: Mukesh Khanal
Although the award recognizes the Tunisian Quartet, it is a source of pride for mediation practitioners and supporters all over the world. The Nobel Prize validates the countless hours/days/years of contribution that mediators throughout the world—including in Nepal—have made in search of peaceful resolution to conflicts.
Nepal has a rich history of traditional dispute resolution, and most Nepali communities have their own dispute resolution systems. Most such systems make use of mediation. For thousands of years now, we have been a culture that seeks third-party mediation to resolve our disputes. As a result, Tharus have their badghar system, Sherpas have khada yangza, Thakalis have mukhiya system, and the Muslim communities have anjuman system. But, as the examples suggest, these traditional systems cater to a homogeneous group of people. As Nepali society becomes more modern, heterogeneous, and urban, these traditional systems have started to break down.
However, there have been efforts to ensure that despite the loss of traditional systems, Nepalis continue to have access to mediation for dispute resolution. Many local and international organizations have been working tirelessly to preserve and promote the culture of mediation in Nepal. In 1999, the UNDP's Access to Justice program started providing mediation training to traditional dispute settlers in several districts. DFID continues to partner with HUCODAN, a local NGO, in ten districts to run a mediation program for village-level dispute settlement.
There is more. JICA supports the COMCAP mediation program in Sindhuli and Mahottari. DANIDA/HUGOU runs mediation programs in four districts. PACT/SAJHEDARI project runs a program in six districts. The Asia Foundation supports mediation programs in 12 districts. It is not just NGOs and INGOs that support and run mediation programs. Even the Nepali courts have the Court-referred Mediation program.
In addition to these local level programs, there are mediation programs at the regional level to resolve regional disputes. UNDP supports one such program. The Asia Foundation's Regional Dialogue program in Jhapa and Dang/Banke resolves regional conflicts—anything from local governance to natural resource sharing issues—through informal dialogues between stakeholders. At the national level, there are several mediator groups.
One such group was able to broker an agreement between various political parties to pave way for the Maoists to come out of hiding and be recognized as a legitimate political force to contest in the 2008 CA election. Several mediators worked tirelessly through the first and the second Constituent Assembly to broker understandings on several constitution-related issues between opposing groups.
So, why is mediation so popular in Nepal? Informal mediation is popular with national leaders because it allows them to forge agreements outside the public view. The thinking goes that in public view (in the parliament and the media), a politician of one stripe cannot be seen agreeing and supporting the opponent's views and suggestions. At the village-level, informal mediation is extremely popular because villagers in remote Nepal have to endure days of travel to reach district courts, significant monetary costs in filing and fighting a case, and days/months of wait for decisions from the judges.
It is a costly affair for somebody in a rural remote village in Nepal to access formal justice system. As a result, mediation programs that offer their services at almost no cost and within the village have become extremely popular in Nepal, even in many cities.
Despite the success, not everything is right with mediation programs in Nepal. First, mediation programs run by different organizations have different success rates. The Asia Foundation's mediation program boasts a dispute resolution rate of over 85 percent, other similar donor organizations' resolution rates are lower, and the Court-referred Mediation program has a resolution rate of only 20 percent. Second, many donor organizations compete in launching mediation programs in the same districts, often in the same villages. That is counterproductive, and a waste of resources—both capital and human.
Third, differing curriculum and training practices has meant that mediators in some organizations are better trained than others. That results in varying qualities of services that the program users receive. Fourth, various government agencies—such as the Ministry of Federal Affairs and Local Development (MoFALD) and the Ministry of Law and Justice (MoLJ)—are in a tussle to see who gets most mediation programs in Nepal under their umbrella. This struggle is partly for access to millions of dollars in mediation program funding and partly for grandstanding that comes with taking ownership of a successful program.
The point is: there are several issues in mediation programming that need fixing. However, Nepal's mediation programmers—local NGOs and donor agencies—have to be commended for their relentless effort in promoting mediation. For example, their efforts ensured that the Nepali state recognizes the resolutions achieved through informal mediation. That recognition came through the Mediation Act, which came into effect on April 14, 2014. The Act now provides legal validity to resolution agreements signed by disputing parties in informal mediation programs.
There have been significant efforts, both by government and non-government mediation supporters, to ensure mediation practices and programming in Nepal continue to improve and deliver. The Mediation Council, housed in the Supreme Court, is tasked with implementing a standard curricula and training for all mediation practitioners in Nepal. The new Act also gives the Council the responsibility to draft mediation-related rules and regulations. Some donors have recognized the need to pool their resources and knowledge together. For example, the UK, Swiss, and Danish governments have formed a "Governance Facility" to pool their resources and run mediation and other peace-building programs together in Nepal.
Mediation programming in Nepal has come a long way. Particularly in the last 15 years, a lot has been achieved. Yet a lot more still needs to be done. Let us hope the 2015 Nobel Prize to a group of mediators buoys the confidence and stamina of Nepali mediators for many years to come.
Labels: community mediation, conflict, mediation, Mediation Council, Tunisian National Dialogue Quartet
Friday, October 17, 2014
Research Paper on Community Mediation published by London School of Economics
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I coauthored a research paper with Preeti Thapa from The Asia Foundation's Nepal office. The subject was the Foundation's Community Mediation program and the usage of the phrase 'social harmony' in the program.
The research was conducted for a joint collaboration between The Asia Foundation and the Justice and Security Research Program at the London School of Economics. The LSE published the paper this week, and is available here.
Here is the brief description of the paper from LSE's website:
I coauthored a research paper with Preeti Thapa from The Asia Foundation's Nepal office. The subject was the Foundation's Community Mediation program and the usage of the phrase 'social harmony' in the program.
The research was conducted for a joint collaboration between The Asia Foundation and the Justice and Security Research Program at the London School of Economics. The LSE published the paper this week, and is available here.
Here is the brief description of the paper from LSE's website:
This is a companion paper to JSRP Paper 5 ‘Community Mediation and Social Harmony in Nepal’ examiningThe Asia Foundation's (TAF) Theory of Change realting to its community mediation programme and focusing particularly on the link between the programme and improved social harmony. Stein’s paper argued that there is evidence of improved social harmony at the individual level but that evidence is lacking for community level outcomes. Similarly, she claimed that there is evidence of the empowerment of individual mediators from marginalized groups but the broader impact of such empowerment on social harmony lacks robust evidence.
In this response the authors aim to clarify some of the issues and concerns raised in Stein’s paper. Starting with a brief historical background on traditional and alternate dispute resolution practices in Nepal, the paper introduces TAF’s approach to its community mediation programming in Nepal and examines TAF’s understanding and usage of the phrase ‘social harmony’.
Both authors work in the TAF Nepal office where Preeti Thapa is Senior Program Officer and Mukesh Khanal is Program Officer.
Labels: community mediation, harmony, JSRP, Justice and Security Research Program, London School of Economics, LSE, mediation, Mukesh Khanal, Preeti Thapa, social harmony, TAF, The Asia Foundation
Thursday, December 19, 2013
Nepali Mandela?
The following piece was published in Republica on December 19, 2013 under the title "Nepali Mandela?". The direct Republica link is here.
Nelson Mandela died on December 5, and newspapers worldwide—including in Nepal—have been plastered with what we can learn from his life and death. Many in Nepal feel that the country needs someone like him.
But why do we need an extraordinary individual like Mandela to let us know what is right, what is needed, and what is to be done? Why can’t we as a society, as a thinking group of people, come up with solutions? Why are we always waiting for a demigod-like figure to come along and rescue our conscience? It is this wistful desire for demigods that hurts Nepali progress. Our struggles for democracy gave us idealist heroes like BP and Ganeshman. However, those experiences spoiled us.
In every successive movement, we now wish and look for their replacements—other individuals we can worship and follow. Girija Prasad and Prachanda immediately come to mind. But the truth is, leaders who have achieved a demigod like reverence in Nepal seem to take us from one dire situation to another.
The country needs to be taken out of the current kerfuffle and towards the next Constituent Assembly. There are forces like Maoists and Madhesis that claim to be victims; NC, UML, and even the Election Commission have been accused of a conniving plot. Parties with different needs, interests and options are in conflict. If mediation literature and practices teach us anything, it is that these conflicting forces need three things for a meaningful resolution of disputes: understanding, right attitude and skills.
Lack of skills has not hindered the dialogue because various donors, well-wishers and facilitators have provided technical expertise and personnel to political parties for negotiation. However, the need to produce homegrown Nepali experts with mediation and negotiation skills is quite obvious. Dearth of such experts has forced us to rely on international experts who, despite their best efforts, do not have complete understanding of the nuances of Nepali conflicts.
Some common understandings have already been achieved through the CPA, and through negotiations and compromises in the last CA. However, attitudes have diverged recently. Maoists are not supportive of a Truth and Reconciliation Committee (TRC) because they fear being dragged into criminal tribunals. To make matters worse, from a human rights perspective, other political forces do not seem to be in a hurry to form the TRC, either. They may have political motives and ambitions to avoid the issue, but this avoidance deprives victims of justice. TRC is the only way to improve relationships between victims and victimizers of the decade-long conflict. NC and UML have to consider the formation of TRC as one of their mandates of the recent election. They should realize that justice delayed is justice denied.
Nepali political parties and actors are engaged in the peace process aiming at a “final” solution. This is a problem for two reasons. First, achieving a standard final solution when there are diverging and diverse agendas and actors is next to impossible. Second, a final solution should not even be the focus of dialogues in a peace process. The focus should be the “interests” of the parties at the negotiation table. Various interests do not necessarily have to align perfectly. However, if these interests are compatible, parties need to talk and find one or more common solutions. A new solution or multiple solutions should always be on the table as long as everyone’s interests are met.
Current objections to election results from losers, be it Maoist supremo Prachanda or numerous Madhesh movement leaders, pose a problem. The ruckus these parties have created is not genuine, and they know that. A big loss in election, like the one the Maoists faced recently, should have had Prachanda resigning from his post as party chairman. Instead, he is engaged in discrediting the Uprety-led Election Commission and Regmi-led government. Did Prachanda forget that he lobbied to place those individuals in those positions? Of course not. The ruckus is a distraction to stall and possibly avoid a resignation from his current position. The same applies to other political actors who head their respective parties and suffered defeats in the election.
And therein lies the fundamental reason our leaders cannot be Mandelas. Girija Prasad got trapped in human emotions and wanted to promote his daughter within party hierarchy. He succeeded in making her deputy prime minister. But Sujata could not manage a nomination on her own once her father passed away. Prachanda finds himself trapped too, and is busy “creating” artificial enemies. His followers are finding it difficult to trust him and rally against these artificial enemies. This is understandable because the artificial enemies are not as evident as apartheid was for Mandela’s followers.
The lesson is that we should consider ourselves fortunate that we aren’t confronting something of the scale and magnitude of apartheid. Because if we were, we would have no true Mandela to bail us out.
Nepali Mandela?
Nelson Mandela died on December 5, and newspapers worldwide—including in Nepal—have been plastered with what we can learn from his life and death. Many in Nepal feel that the country needs someone like him.
But why do we need an extraordinary individual like Mandela to let us know what is right, what is needed, and what is to be done? Why can’t we as a society, as a thinking group of people, come up with solutions? Why are we always waiting for a demigod-like figure to come along and rescue our conscience? It is this wistful desire for demigods that hurts Nepali progress. Our struggles for democracy gave us idealist heroes like BP and Ganeshman. However, those experiences spoiled us.
In every successive movement, we now wish and look for their replacements—other individuals we can worship and follow. Girija Prasad and Prachanda immediately come to mind. But the truth is, leaders who have achieved a demigod like reverence in Nepal seem to take us from one dire situation to another.
The country needs to be taken out of the current kerfuffle and towards the next Constituent Assembly. There are forces like Maoists and Madhesis that claim to be victims; NC, UML, and even the Election Commission have been accused of a conniving plot. Parties with different needs, interests and options are in conflict. If mediation literature and practices teach us anything, it is that these conflicting forces need three things for a meaningful resolution of disputes: understanding, right attitude and skills.
Lack of skills has not hindered the dialogue because various donors, well-wishers and facilitators have provided technical expertise and personnel to political parties for negotiation. However, the need to produce homegrown Nepali experts with mediation and negotiation skills is quite obvious. Dearth of such experts has forced us to rely on international experts who, despite their best efforts, do not have complete understanding of the nuances of Nepali conflicts.
Some common understandings have already been achieved through the CPA, and through negotiations and compromises in the last CA. However, attitudes have diverged recently. Maoists are not supportive of a Truth and Reconciliation Committee (TRC) because they fear being dragged into criminal tribunals. To make matters worse, from a human rights perspective, other political forces do not seem to be in a hurry to form the TRC, either. They may have political motives and ambitions to avoid the issue, but this avoidance deprives victims of justice. TRC is the only way to improve relationships between victims and victimizers of the decade-long conflict. NC and UML have to consider the formation of TRC as one of their mandates of the recent election. They should realize that justice delayed is justice denied.
Nepali political parties and actors are engaged in the peace process aiming at a “final” solution. This is a problem for two reasons. First, achieving a standard final solution when there are diverging and diverse agendas and actors is next to impossible. Second, a final solution should not even be the focus of dialogues in a peace process. The focus should be the “interests” of the parties at the negotiation table. Various interests do not necessarily have to align perfectly. However, if these interests are compatible, parties need to talk and find one or more common solutions. A new solution or multiple solutions should always be on the table as long as everyone’s interests are met.
Current objections to election results from losers, be it Maoist supremo Prachanda or numerous Madhesh movement leaders, pose a problem. The ruckus these parties have created is not genuine, and they know that. A big loss in election, like the one the Maoists faced recently, should have had Prachanda resigning from his post as party chairman. Instead, he is engaged in discrediting the Uprety-led Election Commission and Regmi-led government. Did Prachanda forget that he lobbied to place those individuals in those positions? Of course not. The ruckus is a distraction to stall and possibly avoid a resignation from his current position. The same applies to other political actors who head their respective parties and suffered defeats in the election.
And therein lies the fundamental reason our leaders cannot be Mandelas. Girija Prasad got trapped in human emotions and wanted to promote his daughter within party hierarchy. He succeeded in making her deputy prime minister. But Sujata could not manage a nomination on her own once her father passed away. Prachanda finds himself trapped too, and is busy “creating” artificial enemies. His followers are finding it difficult to trust him and rally against these artificial enemies. This is understandable because the artificial enemies are not as evident as apartheid was for Mandela’s followers.
The lesson is that we should consider ourselves fortunate that we aren’t confronting something of the scale and magnitude of apartheid. Because if we were, we would have no true Mandela to bail us out.
Labels: Mandela, maoists, mediation, NC, Prachanda, TRC, UML
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