Traditional mediation practice eases litigation burden on courts

Rinzin Wangchuk 

The local government leaders in 205 and Thromde thuemis in 20 dzongkhags including four Thromdes settled 3,454 disputes out of the courts in 2022.

Nangkha Nangdrig or traditional mediation plays a considerable role in enhancing access to justice and removing the litigation burden of the courts, according to the national mediation report 2022 the Bhutan National Legal Institute (BNLI) released on February 8. “Without this dispute resolution system, the number of civil cases reaching the courts every year could be higher,” the report stated.

Of the 3,454 disputes settled from January to December 2022, 3,312 cases were mediated in 205 gewogs.  Paro dzongkhag settled the highest number of disputes with 393, followed by Trashigang and Samtse with 320 cases and 298 cases respectively.  Gasa dzongkhag mediated the lowest number of disputes with 16, followed by Trongsa with 32 disputes.

The community leaders settled 896 matrimonial disputes which topped the list, followed by 499 land disputes, 485 miscellaneous issues, and 472 monetary disputes.

There were 244 disputes related to irrigation and drinking water with a maximum of 39 disputes settled in Paro dzongkhag.

According to BNLI’s report, miscellaneous matters pertain to misunderstandings between family and neighbours, alcohol consumption and misunderstandings, census-related issues, timber, wages, rental issues, construction works, business, contracts, and pasture land among others.

The report stated that there were 157 cases of child maintenance-related issues, which was the lowest number of disputes mediated in the country followed by 197 inheritance cases and 209 disputes of crops damaged by cattle. Punakha dzongkhag saw the highest number of matrimonial disputes with 107 followed by Wangduephodrang and Mongar with 95 and 93 cases mediated by the community leaders respectively.

The report revealed that Paro dzongkhag has continuously mediated the maximum number of disputes in the country since the compilation of BNLI’s annual reports for the last six years.

The report stated that Thromde thuemis also play a crucial role in resolving disputes through mediation in their jurisdiction. Of the 142 disputes including 46 matrimonial cases, the tshogpas of Thimphu Thromde mediated the maximum number, 62 disputes followed by Thromde Ngotshab of Wangduephodrang with 45 disputes. “Despite having mediated several disputes, 11 dzongkhags did not maintain proper records and thus, no reports were submitted to the institute this time,” the report stated.

In 2021, the local leaders settled 3,824 disputes.  Since 2012, a total of 43,277 disputes were resolved. “Otherwise, this number of cases would have reached the courts,” BNLI stated in its report.

As per the 2022 annual judiciary report, courts across the country registered 5,973 civil cases last year, out of which 1,474 cases were mediated by the Court- Annexed Mediation Units (CAMU).

What is Nangkha Nangdrig?

Nangkha Nangdrig is an age-old customary practice of mediation or the amicable or informal resolution of disputes in the communities with the intervention or involvement of neutral and trusted community leaders.

Albeit there are minor differences in practices, procedures, and methods of mediation, the disputes are mediated throughout the country aiming at the same objective of inexpensive and effective resolution of simple disputes among people, according to BNLI director general Pema Needup.

Above all, according to DG Pema Needrup, without the divisive effect of the court litigations and segregation of the people into ‘winners and losers’ the parties could indulge in the comfort of ‘win-win’ outcomes honouring the solutions tailored to suit their needs and interests. He stated that despite several judicial reforms and access to the courts, it is still ‘better to lose in the village than win in a court of law’. “Mediation of disputes is the panacea for a small country like Bhutan where people share a small space and live interdependently.”

The report also highlighted how the mediation services at the community level act as an important legal and justice intermediary to provide opportunities for the communities to negotiate. “These aspects of negotiation, besides acting as legal remedies, help the communities resolve disputes in their communities – thus reducing the courts from unnecessary and trivial legal burdens,” the report stated.

By weaning some cases off the litigation system, according to DG Pema Needup, BNLI is hopeful that the judiciary is spared scarce judicial time and resources in adjudicating trivial, frivolous, and minor civil cases. “Ultimately, it is expected to help preserve the relationship and social harmony in the communities,” he stated in the report.

However, mediation can never be considered an alternative to the formal justice system in the Bhutanese context. It is the primary mechanism through which Bhutan carries the legal, social, and community history of dispute negotiation and settlement. “Although mediation or any alternative dispute resolution system will never replace the comprehensive adjudication of cases by professional judges, it will mitigate the flood of litigation, especially those which are trivial, frivolous, protracted, and cantankerous civil disputes,” Pema Needup said. “It is the primary mechanism of social cohesion and community mutuality in the Bhutanese legal landscape.”

BNLI, the training and research arm of the judiciary, had trained around 2,870 mediators including local leaders like Gups, Mangmis, Tshogpas, and Thromde Thuemis, female Gewog administrative officers, judicial personnel, PGDNL trainees, paralegals, private lawyers, officials from the Ministry of Labour and Human Resources, Construction Development Board, clerks from armed forces and officials from Gyalpoi Zimpon Office and the Office of Attorney General since 2012.