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Published online by Cambridge University Press: 16 April 2015
This article will consider the role that Alternative Dispute Resolution (‘Dham Kha Chen Ki Khendum’ or ‘Nangkha Nangdrik’) currently plays in resolving legal conflict in Bhutan. With a Constitution that has committed to the pursuit of Gross National Happiness, non-adversarial dispute resolution processes that promote continuing relationships and goodwill assume greater importance. One difficulty for Bhutan is that alternative dispute resolution procedures such as mediation (Dhum Drik) are being referred to in enactments of the Bhutanese National Council and National Assembly (bicameral parliament), without a shared understanding as to the characteristics and functionality of these procedures. This article will focus particularly on the current practice of mediation in Bhutan and investigate whether particular models of mediation are more suited to the Bhutanese context, given the particularities of Bhutanese culture, the search for gross national Buddhism.
1 The Constitition of the Kingdom of Bhutan, Art. 9.
2 Ura, Karma & Galay, Karma, eds., Gross National Happiness and Development (Thimphu: The Centre for Bhutan Studies, 2004) at vii Google Scholar.
3 The Constitution of the Kingdom of Bhutan, Art. 21(16).
4 Mancali, Mark, “Gross National Happiness and Development: An Essay” in Ura, Karma & Galay, Karma, eds., Gross National Happiness and Development (Thimphu: The Centre for Bhutan Studies, 2004) at 1, 5 Google Scholar.
5 Simoni, Alessandro, “A Language for Rules, Another for Symbols: Linguistic Pluralism and Interpretation of Statutes in the Kingdom of Bhutan” (2003) 8 Journal of Bhutan Studies 29 at 30 Google Scholar.
6 Holsti, Kalevi J., Why Nations Realign: Foreign Policy Restructuring in the Postwar World, (London and Boston: Allen & Unwin, 1982) at 21 Google Scholar.
7 Mathou, Thierry, “The Politics of Bhutan: Change in Continuity” (2000) 3 Journal of Bhutan Studies 228 at 236 Google Scholar.
8 Ibid. at 230.
9 According to the Bhutanese calendar, the Constitution came into force on the fifteenth day, of the fifth month, of the Male Earth Rat year.
10 The Constitution of the Kingdom of Bhutan, Art. 1(2).
11 Ibid., Art. 3(1).
12 Ibid., Art. 1(13).
13 Ibid., Art. 10(1).
14 Ibid., Art. 20(2).
15 Ibid., Art. 20(1).
16 The Constitution of Bhutan provides for these different levels of administration. Article 1(4) states that “The territory of Bhutan shall comprise twenty Dzongkhags with each Dzongkhag consisting of Gewogs and Thromdes. Alteration of areas and boundaries of any Dzongkhag or Gewog shall be done only with the consent of not less than three-fourths of the total number of members of Parliament.”
17 Simoni, Alessandro & Whitecross, Richard W., “Gross National Happiness and the Heavenly Stream of Justice: Modernization and Dispute Resolution in the Kingdom of Bhutan” (2007) 55 Am. J. Comp. L. 165 at 186 CrossRefGoogle Scholar.
18 Mathou, supra note 6 at 232.
19 Simoni & Whitecross, supra note 17 at 172.
20 Simoni, supra note 5 at 34.
21 Simoni & Whitecross, supra note 17 at 172. According to the National Assembly of Bhutan website, “Over the years, the total members [of the National Assembly] increased to 150 with 99 elected representatives of the people, 6 Royal Advisory Councillors, 35 nominated representatives of the government and 10 representatives of the Clergy.” The National Assembly was dissolved in 2007, so that elections could take place to determine its new composition, consistently with Art. 12 of the Constitution. See online: National Assembly of Bhutan <http://www.nab.gov.bt/aboutus.php>.
22 Simoni & Whitecross, supra note 17 at 186.
23 Ibid. at 187.
24 Civil and Criminal Procedure Code of Bhutan 2001, s 150.
25 The precise meaning of each of these titles is fluid: See for example Dubgyur, Lungten, “Legal Status of the Internet: Are there Lessons to be Learnt from Domain Names and Trade Mark Disputes?” (2002) 6 Journal of Bhutan Studies 88 at 108 Google Scholar; Simoni & Whitecross, supra note 17 at 187.
26 Section 150 of the Code is titled “Negotiated Settlement” and is located in Chapter 23 “Adjudication without Proceedings”.
27 Simoni & Whitecross, supra note 17 at 187.
28 Golbert, R., “An Anthropologist's Approach to Mediation” (2009) 11 Cardozo Journal of Conflict Resolution 91 Google Scholar as referred to in Law, Siew-Fang, “The construct of neutrality and impartiality in Chinese mediation” (2011) 22 Australasian Dispute Resolution Journal 118 at 121 Google Scholar.
29 Simoni & Whitecross note that “The physical topography of the country itself posed and continues to pose obstacles to modernisation. Even today, approximately 75 percent of the population live more than one hour from a traversable road, and around 50 percent more than one day's walk”, supra note 17 at 170.
30 Aris, Michael, “Conflict and Conciliation in Traditional Bhutan” in Hutt, Michael ed., Bhutan: Perspectives on Conflict and Dissent (Stirlingshire: Kiscadale Asia Research Series, 1994) 21 at 36–37 Google Scholar.
31 Geog Yargay Tshogchung Chhathrim 2002, Art. 11(15).
32 Civil and Criminal Procedure Code of Bhutan 2001, s. 150(3) and s. 150(4).
33 Simoni, supra note 5 at 33.
34 DA 3-10 of the Thrimzhung Chhenmo states: “After an agreement, contract or deed has been entered into with the help of a Jabmi and no objection has been raised in a court of law by any of the parties concerned within a period of ten days, such agreement, contract or deed shall be deemed as legally binding so long as the agreement, contract or deed was drawn up in keeping with the law and properly attested by witnesses.” The Civil and Criminal Procedure Code of Bhutan 2001, s. 150(6) states that a party shall raise objection to the validity of a settlement agreement within ten days of the agreement.
35 Thrimzhung Chhenmo DA 3-10 and Civil and Criminal Procedure Code of Bhutan 2001, s. 150(8).
36 Planning Commission Royal Government of Bhutan, “Bhutan 2020: A Vision for Peace, Prosperity and Happiness” Part I, 18.
37 Ibid. at 20.
38 Mathou, supra note 7 at 234.
39 UC Associates and Garuda Legal Services (on behalf of the Royal Court of Justice), “Study of Alternative Dispute Settlement, Good Governance Support Program” (2010) at 95 Google Scholar.
40 Ibid. at 71, 117.
41 The Kingdom of Bhutan has a national literacy level of 59.5%. Gross National Happiness Commission Royal Government of Bhutan, “Tenth Five Year Plan 2008-2013” (2009) at 10 Google Scholar.
42 UC Associates and Garuda Legal Services, supra note 39 at 71.
43 Ibid.
44 See for example, National Alternative Dispute Resolution Advisory Council, “Dispute Resolution Terms” (September 2003) at 1-2.
45 This is not to say that mediator engagement with the problem is necessarily a bad thing. The many different models of mediation (ranging from purely facilitative to strongly evaluative) comprehend a wide range of mediator roles. It is problematic however, when the mediator misreads the needs of the parties and overplays their hand with respect to resolving a dispute.
46 Currie, Cris, “Mediating off the Grid” (2004) 59(2) Disp. Resol. J. 8 at 11–14 Google Scholar.
47 Ibid. at 13.
48 Alexander, Nadja, “The Mediation Metamodel: Understanding Practice” (2008) 26(1) Conflict Resolution Quarterly 97 at 101 CrossRefGoogle Scholar.
49 Ibid. at 97.
50 Ibid.
51 Ibid. at 101-102.
52 In other mediation models, a mediator with a problem-based orientation can be said to be conducting an evaluative mediation. The terms “directive mediation” and “evaluative mediation” are used synonymously in this article. This style of mediation has much in common with the expert advisory model of mediation. In evaluative mediation, mediators can help the parties generate options, assess the strengths and weaknesses of each party's position and evaluate likely court outcomes. As a generalisation, evaluative mediation focuses on (legal) rights and entitlements – what a party wants (position), as opposed to why they want it (interest). Regardless of the type of mediation being conducted, it is always possible for a mediator to focus on the interests of a party. A mediator can focus on party interests regardless of whether they are being facilitative or directive/evaluative.
53 It is important to note that the problem (content)/process dichotomy used to describe mediator orientations is artificial to a certain extent. Alexander acknowledges that the process/problem distinction “is not always readily recognisable and is sometimes blurred in practice. In reality problem interveners manage the procedure at various levels, and process interveners may indirectly advise on the problem.” See Alexander, supra note 48 at 103.
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59 Ibid. at 112.
60 Ibid. at 113.
61 Ibid. at 114.
62 Ibid.
63 Dubgyur, supra note 25 at 107; UC Associates and Garuda Legal Services, supra note 39 at 40.
64 UC Associates and Garuda Legal Services, supra note 39 at 119.
65 Civil and Criminal Procedure Code of Bhutan 2001, s. 150(8).
66 Thrimzhung Chhenmo DA 3-5.
67 The Marriage Act of Bhutan 1980, KHA 8-16 states that “If any scribe executes a written agreement or makes an oral settlement in contravention of the provisions laid down in this Marriage Act for realization of the prescribed amounts, then whatever amounts have been so realized shall have to be returned to the said person from whom such realizations were made, and the said person who had realized such an amount shall have to pay a fine to the Government equal in amount to the sum so realized. In contravention of which, the said person shall be punished with a term of imprisonment of six months; and the scribe executing the written agreement or making the oral settlement and witnesses thereto shall all be punished with a fine equal to half the amount imposed on the said person who had realized the amount and in addition shall have to undergo half the term of imprisonment imposed on the said person. But if the scribe of the written agreement and the person making the oral settlement is one and the same person, then the said scribe shall not be liable to the punishments imposed on separate counts, but shall be liable to one punishment only.”
68 Boulle, Laurence, Mediation: Principles, Process, Practice, 2nd ed. (Australia: LexisNexis Butterworths, 2005) at 29 Google Scholar.
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74 Ibid. at 34-36.
75 Boulle, supra note 68 at 43.
76 Planning Commission Royal Government of Bhutan, “Bhutan 2020: A Vision for Peace, Prosperity and Happiness” Part 2, 11.
77 Ibid. at 10.
78 These objectives have been articulated by the Planning Commision, Royal Government of Bhutan and are described in further detail in “Bhutan 2020: A Vision for Peace, Prosperity and Happiness” Part 2, 12-13.
79 Whitehouse, Chris & Winderl, Thomas, “National Happiness: Universalism, Cultural Relativism, or Both? An Assessment” in Ura, Karma & Galay, Karma, eds., Gross National Happiness and Development (Thimphu: The Centre for Bhutan Studies, 2004) at 389, 396 Google Scholar.
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109 Ibid.
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111 Ibid.
112 Waldman, supra note 101 at 164.
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114 Love, Lela P., “The Top 10 Reasons why Mediators Should Not Evaluate” (1997) 24 Fla. St. U.L. Rev. 937 at 939 Google Scholar.
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119 Ibid. at 1757.
120 Mancall, supra note 4 at 40.
121 (1) Life is suffering; (2) The cause of suffering is craving; (3) Suffering can be overcome and that true happiness and contentment are possible; (4) The key to overcoming suffering is following the middle way or the Eightfold Path.
122 Cox, Harvey et al., “World Religions and Conflict Resolution” (Paper produced for the Centre for Strategic and International Studies Program on Religion and Conflict Resolution, 31 August 1992) at 4 Google Scholar. Individual enlightenment is difficult to achieve for an adherent to Buddhism. It is an end destination achieved as a learning by-product of many different lives and reincarnations. Realistically, this means that self-enlightenment is a journey and that along the way an individual will experience incompatibilities of interests, needs and values with another. A Bhutanese Buddhist is likely to feel embarrassed and torn if they are involved in conflict. On the one hand, it makes sense to stand up for what you believe are your rights and entitlements. Conversely, this drive to protect entitlements and maximise fulfilment of individual needs and wants (often at the expense of another) speaks to material attachment and a level of aggression (if not assertiveness).
123 Whilst religion has often been perceived as a divisive instrument, its obverse contribution to successful conflict management and resolution is less emphasised. Johnston suggests that “under the right circumstances religious or spiritual factors can effectively contribute to the prevention, amelioration, or resolution of conflict.” The successful integration of Buddhist principles into any mediation – mediating through a Buddhist lens – requires a linking of Buddhist peacemaking precepts, to mediation theory and practice. Several authors have begun to explore this link. See for example Johnston, Douglas, “Religion and Conflict Resolution” (1996) 20 Fetcher F. World Aff. 53 Google Scholar; Kuttner, Ran, “From Adversity to Relationality: A Buddhist-Oriented Relational View of Integrative Negotiation and Mediation” (2010) 25(4) Ohio St. J. Disp. Resol. 931 Google Scholar.
124 Johnston, Douglas, “Religion and Conflict Resolution” (1996) 20 Fetcher F. World Aff. 53 at 53 Google Scholar.
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126 Bagshaw, Dale, “Language, Power and Mediation” (2003) 14 Australasian Dispute Resolution Journal 130 Google Scholar.
127 Boulle, supra note 68 at 39.