Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR)

Background and Development of ADR in Bhutan

ADR is not a new concept in Bhutan. Mediation of disputes has a long history in Bhutan. Mediation has been in practise and it was the customary law before the advent of the formal justice system in 1960s.

The negotiation of a border dispute between Sindhu Raja, ruler of Bumthang region and Naoche, King of a neighboring Kingdom in India by Guru Padmasambhava in the 8th century may be considered as the earliest recorded mediation process in Bhutan. Guru Padmasambhava arranged a meeting between the two kings to resolve their dispute and was eventually successful in settling the dispute. The mediation was held at a place called Nabji-Korphu Lhakhang in Trongsa. The two kings erected a monolithic stone pillar at the venue as a symbol of the successful mediation.

Also the First King, Gongsar Ugyen Wangchuck earned international acclamation and respect for his exemplary mediation skills when he successfully mediated the territorial disputes between the Tibet and the British India in 1904.

But what exactly is Mediation? Known as Nangkha Nangdrig, mediation is generally understood as an intervention of a third party Mediator or Barmi where the Mediator, assuming the role of a
facilitator, tries to convince parties of the benefits of settling disputes internally, instead of seeking court intervention.  This mechanism of dispute resolution ensures a win-win situation, resolving a conflict amicably.

Objectives of Mediation

The main objectives of mediation are to:

  1. Enhance access to justice;
  2. Promote restorative justice;
  3. Preserve relationships between litigants which may become strained or destroyed by the
    adversarial nature of litigation;
  4. Facilitate an expeditious and cost-effective resolution of the dispute between the litigants; and
  5. Strengthen community vitality and enhance the Gross National Happiness.

Community Mediation Program

Under the visionary leadership of the Hon. President of Bhutan National Legal Institute, Her Royal Highness Princess Sonam Dechan Wangchuck, the Institute strives to institutionalize the age-old practice of community mediation in the Kingdom. Since 2012, the Institute has successfully trained all the local government leaders on the subject matters of mediation and has witnessed a significant decrease in the number of case pendency in Courts. As per the National Mediation Assessment Report, the local government leaders settle more than 4000 disputes in a year which if not would have come to the Courts for adjudication. The community mediation service is provided free of cost.

Court-Annexed Mediation Program

The Institute is now poised to bring mediation to Court in the form of Court-Annexed Mediation in Bhutan. The first Court-Annexed Mediation Unit in Punakha District Court was inaugurated by the Hon. President of Bhutan National Legal Institute, Her Royal Highness Princess Sonam Dechan Wangchuck on 29 October 2019.

The Bhutan National Legal Institute has conducted three phases of Court-Annexed Mediation training for the Bench Clerks. The First Phase included 30 bench clerks from six Dzongkhags and two
Drungkhags.  It was held in Paro from 18-23 June 2019. The Second Phase consisted of 28 Courts and a total of 50 participants. It was held in Thimphu from 19-24 August. The Third Phase which consisted of 19 bench clerks of western Dzongkhag Courts was held in Tsirang from March 15-20, 2021.

During a six-day training, the participants were articulately explained the processes of mediation, the techniques and skills and actively engaged in the negotiation and mediation role-play on customized case scenarios.

A great emphasis was maintained on the professional ethics and conduct of the mediators and in harnessing the qualities of negotiation and dispute resolution. The Institute successfully
trained at-least one senior bench clerk in every Courts in Bhutan. The Institute shall continue to roll out this training to all bench clerks in the future.

The inauguration of the first Court-Annexed Mediation Unit in Bhutan is a blessing for the Justice Sector. It represents the first step towards accomplishing the vision of the Hon. President of Bhutan National Legal Institute, Her Royal Highness Princess Sonam Dechan Wangchuck in revitalizing and institutionalizing mediation in the Court System. The practice of mediation authorized by the courts has been present since the first inception of the courts. The laws mandated courts to provide mediation opportunities to the parties even after the registration of the cases, at any stage of hearing, however with the establishment of the unit, the practice will be strengthened and legitimized.

Future Benefits

The benefits derived from Court-Annexed Mediation shall work in two dimensions; benefits to the Courts and benefits to the parties. The institution of Court-Annexed Mediation will allow the Courts to function efficiently through effective use of judicial resources in cases where
mediation has failed or cannot be mediated. It will garner public trust and confidence in the judicial system and reduce the number of pendency of cases and cases going on appeal. It will help save the time and resources of the court.

The parties shall also benefit by saving their time and money. The outcome of Court-Annexed Mediation will fulfill the desires and aspiration of the parties, leaving them contended and satisfied. The reputation of the parties will be safeguarded through the confidentiality process and the relationships between the adversaries will be perserved, ultimately leading to the harmonious and cohesive community.

 

(Inauguration of First Court-Annexed Mediation Unit in Punakha, Royal Court of Justice)