ADR Case Study: Nepal

This case study shows the importance of institutionalizing an existing decentralized practice of mediation or conciliation into its rules, rather than relying solely on a heavily centralized formal complaints mechanisms, which is seldom used. The Nepal example also features the challenge of poorly defined mandates of multiple EDR actors, which created confusion in the mandate and limited the efficiency of adjudication processes.

In Nepal, in fields other than elections, there is a strong practice of mediation at the community level and a growing practice in judicial proceedings. The Constitution provides that ADR should be encouraged, and the government is making ongoing efforts to establish mediation as an essential component of justice-seeking at the local level. Nepal enacted the Mediation Act and established a Mediation Council that is responsible for issuing certification of mediators.177 The Asia Foundation has led successful mediation programs and trained mediators in several provinces, leading to the resolution of thousands of land or family disputes by local community mediators. Building upon this successful experience, the Election Commission (ECN) could consider introducing mediation or other ADR mechanisms for election disputes.

During the 2017 elections, the ECN established ad hoc EDR committees composed of high-ranking public officials and election officials from the Secretariat of the ECN. The EDR committee at the central level is made up of high-level government officials, over-represented by those from the ruling party. The committees address allegations of violations of the Code of Conduct and issue a recommendation to the ECN. The board of commissioners of ECN then decides on the complaints. The EDR directive establishing the ad hoc EDR committees was published less than three weeks before the 2017 elections,178 and the effectiveness of the committees was very limited. In addition, the ECN established local-level Code of Conduct Monitoring Committees for the elections. Although the committees were not primarily tasked with resolving disputes, in practice, they appeared to resolve disputes in an informal way during the campaign and on Election Day through conciliation or mediation. The EU Election Observation Mission (EOM) 2017 reported that the ECN dealt with complaints about campaign violations “in a largely informal manner.” It appears that there was a practice of mediating disputes at the local level, but it is not codified (neither the election acts nor the EDR procedures refer to mediation). The ECN had little information on the number of disputes that were resolved informally; the local election officers who handled them did not report on the disputes to the central level.

This range of ADR mechanisms lacks guidelines, training, and a clear mandate, and practice is inconsistent. The results are blurred lines between monitoring, settlement, and adjudication. The ECN could consider clarifying the mandate and functions of the ad hoc EDR committees, local election officials, and monitoring committees to merge their roles or establish mediation committees with a clear mandate. Proactive mediation committees could defuse tensions among candidates, parties, and local authorities. This could deter fraudulent acts and mitigate election violence without requiring formal ECN or court proceedings that voters and stakeholders have been reluctant to initiate, notably due to the length of the proceedings in courts and the lack of information on ECN proceedings. The EU EOM reported fewer than 100 complaints formally submitted during the 2017 elections, and no sanctions were imposed.179 The ECN could consider institutionalizing the locally managed ADR system during the pre-election phase, building on existing skills and traditional practices to enhance understanding of the election process and respect for its integrity. This could help address political intimidation, hate speech, and widespread violations of campaign rules.