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Arbitration and mediation as a legal means of dispute resolution was in practice in Nepal much before the country welcomed democracy and a codified judicial system. During the Panchayat era, for example, the Panchayat was an informal tribunal of five gentlemen chosen from among the electorate of a village to settle disputes between local people and deliver justice. However, it was subordinate to the court of law. In the Licchavi period, the Panchali, also called Pancha Sabha, had the power to issue judgments on local disputes. The concept of arbitration in its modern sense was first found in government contracts. Currently, we have a plethora of laws promoting amicable settlement of disputes. Cases of civil nature can be mediated at any stage even if they have entered the court of law. Mediation can happen before evidence collection, after evidence collection or even during the implementation of judgements. If the Bench has reasons to believe that the dispute can be resolved through mediation, the judge can pass an order, directing the parties to sit for mediation before the mediation center of the concerned District Court or the High Court. Court procedure The Mediation Act, 2068 BS (2011) and its rules framed in 2070 BS (2013) provide for the procedure of mediation to settle a dispute in a speedy and simple manner. Section 3 of this Act provisions that if parties intend to settle a case pending in the court through mediation, the adjudicating authority may pass an order to refer it to a mediation center for reaching a compromise. After passing the order, the court officials engaged in providing dates of appearances to the parties would request the parties to appear before the mediation center on a specified date. Then, the parties themselves, not their legal representatives, would (in person) have to appear before the center on a specified date to participate in a discussion for reaching a negotiated settlement. Before entering the mediation process, the parties must choose a mediator from a roster of mediators maintained at the District Court. After the selection of a mediator, the mediation process formally begins. Discussions can happen in phases—up to three phases. In case of failure on the part of the mediator to facilitate a unanimous decision despite rounds of talks between the parties, the center must furnish a report announcing the termination of the mediation process. Afterwards, the court itself should hear the case under normal proceedings. The District Court Regulations, 2075 empowers the District Court Registrar to maintain a roster of mediators. Any individual from the legal fraternity, teaching, social service or other sector may be enlisted as a mediator, provided that the person has received training on mediation and has not been convicted under offenses involving moral turpitude. Rule 52 of the regulations has given the judges the authority to initiate a case for mediation by passing an order to that effect. In order to resolve disputes through mediation, judges may give the parties concerned up to three months of cooling period for reaching an amicable settlement. Rule 53 of the regulations prescribes that the Registrar of the District Court should facilitate the selection of the mediator on the basis of consensus among the parties, whereas Rule 57 prescribes procedures for mediation. If a party or parties fail to appear before the mediation center on a stipulated date, and the mediation process cannot proceed as a result, officials of the center should furnish a report to the court, stating that the mediation could not proceed. However, if the parties reach an amicable settlement, the mediator should prepare a compromise document by duly stating the details of adjustment. Later, the compromise document is presented before the bench and the presiding judge approves the document through consent of the disputants in writing along with their signatures. This document is also a form of court verdict, which is duly archived in court case file. Both High Court and Supreme Court Regulations recognise mediation as an agreeable means for dispute resolution and the arrangements are at par with District Court Regulations. Mediation under major laws   The National Civil Code, 2017, a general substantive law in Nepal, has provisions for mediation in civil matters. Take divorce, for example. Section 97 of the Code, 2017 provides that if a husband or wife has filed a petition for divorce in district court, the court must pass an order, directing the parties to sit for mediation. If the court fails to make conciliation between husband and wife through counseling, it must issue a divorce order within a year of the petition. There can be a compromise deed for divorce, of course. Under Section 193, the Civil Procedure Code stipulates that if a case is sub-judice and the parties wish to reach a compromise at any stage, they may make a joint petition, mentioning the bases for the resolution of the case. Section 194 clarifies that disputes may be settled through mediation. However, there are cases that cannot be mediated. Per Section 195, there can be no mediation in cases that have the government of Nepal as a plaintiff. It states that cases related to public, government or community property shall not be settled through compromise or mediation. However, for protecting the property of the government, mediation can be undertaken. Cases like dishonor of cheque, forgery, criminal trespass and looting mentioned under Schedule 4 of National Criminal Procedure Code, 2017 can be mediated. In addition to this, cases of cheating (which is a matter of Schedule-1 of the National Criminal Procedure Code) instituted by an individual can be mediated. But cases related to looting or misappropriation of government property cannot be mediated. In cases concerning misappropriation of state properties, the government should initiate legal action. Cases of contempt of court and public interest litigations cannot be resolved through mediation. Mediation saves money     Most importantly, the laws in Nepal provide financial benefits to the litigants if they manage to settle disputes on their own. If the parties reach a compromise before a court of law passes orders for evidence collection, then the disputants can get away by bearing only 25 percent of court fees. But if compromise is reached after evidence collection, the parties have to foot 50 percent of the fees. So, dispute settlement through compromise is a better option financially as well. Gray areas Mediators from law, social service or teaching background can help settle disputes. Still, the law is silent on the expertise of mediators, allowing the latter to mediate in civil as well as criminal matters without taking their areas of expertise and interest into consideration. There is a practice of maintaining a single roster of mediators instead of keeping separate rosters of mediators for civil, matrimonial matters, or criminal cases. Mediation will be more effective if mediators choose specific areas of specialization and limit themselves to those areas. In the state’s interest Yet, Nepal’s law appears to be progressive for a number of reasons. Firstly, the laws intend to promote amicable settlements through compromise. Second, it gives a strong and clear message that dispute resolution through compromise is better than the disposal of cases through court proceedings. Moreover, the deed of compromise is cost-effective, speedy and agreement ad idem. Also, alternate dispute resolution mechanism is in the interest of the state as it helps to end litigations (Interest rei publicae ui sit finis litium). It's high time to promote mediation, instead of recourse to court cases. The governments—federal, provincial and local bodies—need to invest in promoting mediation mechanisms. Such type of intervention is more needed in Madhesh as courts there are flooded with litigations. The author is a Judicial Officer at Dhanusha District Court, [email protected]

In his seminal work “To Have or To Be”, Erich Fromm spoke of the ‘having mode’ and the ‘being mode’. James March too speaks of the distinction between being externally motivated, working for specific ‘accomplishments’ or ‘good consequences’ versus following the energy arising from within one’s ‘identity’. According to March, cultivating, recognizing and giving one the freedom to dance with self-belief provides freedom to make mistakes and to appear fearlessly foolish. This trade-off between consequential thinking and identity thinking enables us to practice the ‘spiritual’ audacity of a Don Quixote or a Forrest Gump. Clarissa Pinkola Estes articulates, “Dwelling free means to follow the divine impulse, to live in a way that is not restricted to what others say and insist on, but to follow one's broadest, deepest sense about how to be, to grow, and live.” Moving with one’s self-belief and identity is not a debilitating unproductive space. The energy comes from the union of both passion and disciplined application. Remember Gump with his uncommon destiny of the unpredictable feather floating around him? Everything that Forrest does is with a sense of purpose—albeit, a differently-enabled identity, which is disarmingly self-validating of his shortcomings; yet preciously embedded with a dogged-discipline. There is imagination, persistence, and joy as Forrest ventures out of his adolescent cocoon. An unusual imagination as he makes his choices when to run or pause. A persistence as he strives to fulfill his dharma toward himself, Bubba and Bubba’s family, lieutenant Dan, his mother, his love Jenny and his son Forrest Junior. There is visible confidence manifest in things he does like when he is running away from the bullies in school. It is through this experiencing of inner assurance that he is able to bring succor and joy in the lives of significant others. Clarissa Pinkola Estes further describes this as “a journey to find a truer selfhood; one that cannot be easily corrupted by the outer world, or by time. The impulse fulfills a longing to unearth and reveal one's greatest and deepest shadows and gifts. It provides the balances required for a person to feel one thing especially—contentment”. In the outcomes of many myths, this neglected self so often proves to be the trove of heroic treasures—just right for the conflicts and courageous efforts needed to meet aggressive challenges and to give birth to the kinder, more tender, elegant and more strengthened self. Many a time our mindfulness wanders off, and makes us participate in dramas and in characters that are not related to our values of who we intrinsically purport to be to live heroic lives. We carry pretensions of superficial, quasi-cultural art and glamor-brands instead of elegance. Through this decadent lens we value people, food, things and qualify beauty. We tag talent and pleasure based on how much it cost, and exchange of crass favors and a crafty drift instead of empathetic values. There is a stench in the sweetness of Wilber’s ‘corporate flatland' that ‘professionals and business' often need to mask with artificially concocted benchmarks of ‘quality and goodness’. The timeless archetypes from the old myths that we invoke and connect to in life to negotiate its ups and downs have been almost erased by science, technology, and commerce. In our process to see our world homogenized in terms of currency, lingo, and corporate success stories, and cultural correctness, we sit smugly in our places of work and pleasure while machines slowly bore holes in the ozone layer. We are like Humpty Dumpty, set up to be felled without being put back together again. By shifting our cognitive bandwidth from the internal to the external, from us to me, from elegance to glamor, from health to wealth, from true happiness to indulgence and from kindness to crass indifference and cruelty, we defy our humanness. With a twisted and warped sense of success, we encourage, benchmark, celebrate and idolize the Peaky Blinders and Alfie Solomons of the world spouting unmatched philosophical eloquence devoid of intrinsic moral values. Are we ignoring the uniqueness of our mythos from where we derive our true spiritual strength? Are we ignoring the Don Quixotes and the Forrest Gumps in us? How do we reclaim ourselves from ourselves in order to fulfill our quest from that lie buried within most of us? As Jung questioned us, how do we cultivate the essential attitudes needed to support a quality life of the soul? Our answer may well come from a certain resilience to societal pressures that helps a person to become and to grow and live in the deepest and the most sacred sense.

You are invited to a party. If you could have your way, you wouldn’t go. But your family insists that you tag along. Reluctantly, you join them. No sooner have you arrived, someone at the gate decides that the best way to greet you is by commenting on your body weight or how you’ve become ‘unapproachable’ because you don’t show up anywhere. How you choose to respond will change the course of your life. We don’t exist in a vacuum but in social contexts. There’s no escaping other people. And so, being around other people means being stimulated—either for better or for worse by their words and actions. A few examples of the latter: You genuinely ask a colleague how their holiday was and they remark rather sarcastically: “I wasn’t even gone for that long!” You tell your partner what’s been bothering you but they seem to be more interested in scrolling their phone. You tell your parents why you don’t like doing certain things but they equate that with how ungrateful you are for all the struggles they had whilst raising you. And the list goes on. Let’s go back to the earlier story. You’ve been greeted with scorn and disapproval. Or that’s what you think. However you interpret your relative’s words, you already sense a disconnection. What you say next can change your world because you can choose either to suffer in silence and hate yourself for agreeing to come to the party in the first place or contribute to the violence by retaliating with hurtful words in turn or choose the route of ‘emotional intelligence’. What does choosing the route of emotional intelligence mean? For starters, it means recognizing that in every interaction, you have a choice—whether to act maturely in a way that contributes to the needs of everyone involved or, take things personally and make things worse (either by suffering in silence or participating in violence). What will determine what we will do in that situation with our relatives is the mindset that we find ourselves in. Okay, something unpleasant was directed at us. What do we see now? Do we see an obstacle in front of us that needs to be eliminated or do we, despite not agreeing with their idea of an icebreaker, see a person who is probably trying to meet their need for connection (albeit in a terrible way of expressing the need)? This moment of choice—to either see an obstacle or a person with unmet needs—shapes what we will do next. But does emotional intelligence mean being nice even when we have been treated harshly? How will the other person learn if we let him/her ‘get away’ from their negative impact? These are valid questions. Emotional Intelligence doesn’t mean we ‘act nice’ or always conform to the sort of messages of toxic positivity we see around us. To be emotionally intelligent is to simply take a step back from the grip of the emotions we might feel after our relative says those things and to ask ourselves: How am I feeling? What are my options? What do I really want? Depending on our personal life experiences, we might have different answers to the first question. But what will be common for all of us, if we approach the situation with emotional intelligence, is to realize that a mature response involves aligning the first and the third. You see, without awareness, we end up acting out on our emotions in a way that takes us away from our real goal. For example, perhaps the relative genuinely wanted to connect with us. But as soon as they saw us, they were reminded of the times we skipped family gatherings in the last year. As a result, they felt frustrated and so, in the grip of that strong emotion, said things that were harmful for us to hear, so much so that now we just don’t want to see them anymore. Instances like these are abundant around us. We might feel incredibly discouraged, or take personal responsibility for the choice we have to approach situations characterized by strong emotions, opposing views, and high stakes with insight, intention, and purpose. Of course, this choice isn’t easy because there are a few vital skills we will need to navigate this tricky situation. What we need is the ability to recognize how we are feeling and label it accurately. We must also connect how we feel with an underlying need and be able to make an empathic guess about the other person’s feelings and needs. Then there’s the ability to communicate our needs clearly and calmly and listen to the feelings and needs of the other person without making it about us. And above all, it’s important to cultivate the ability to not take it personally if the other person doesn’t want to go through this process of difficult conversation just yet. Next time you find yourself in a tricky situation, remember that your approach—to see either a person in front of you or an obstacle that needs to be eliminated—will affect what you say next. And what you say next can change your world. The author is co-founder of My Emotions Matter, an education initiative that helps individuals and teams learn the mindset and skills of Emotional Intelligence. You can learn more at myemotionsmatter.com.  

Over the past 2.5 years since the start of the Covid-19 pandemic, Nepal’s software and services offshoring industry has mushroomed. The pandemic accelerated the demand for digital services across many countries, and global technology companies and start-ups rapidly expanded their talent base. Many sought to build teams internationally or supplement their home-country teams with international talent. As a result, hundreds of companies and thousands of freelancers from Nepal were able to join the global industry. However, in the short term, technology companies around the world that rely on software and services are facing a difficult winter that may last the next few months or years. Rising interest rates and the end of easy money, combined with the collapse of the cryptocurrency market, have dampened the optimism with which large and small technology companies were investing in growth. While the impact on different technology companies varies, it is likely that many will seek to maintain smaller, high-quality teams for targeted efforts. As wage differences with other outsourcing hubs in Emerging Asia and Africa disappear rapidly, it is uncertain how Nepal’s emerging software industry will continue to develop. To remain competitive during this anticipated tech winter, Nepal’s local offshoring units will need to improve their quality. By focusing on quality, companies can target larger, longer-term contracts and build expertise in specific industry verticals. While larger offshoring companies in Nepal may be able to address quality issues on their own, there is a need for industry-wide efforts. To improve quality, the local offshoring software and services industry must work on increasing its capacity. This involves establishing a baseline for the industry to measure its size and position relative to similar industries in other countries. The industry should also collaborate to enhance Nepal’s branding in international circles and ecosystems. Finally, it is important to develop mentorship and peer-learning networks within the industry. Baseline It is essential to have a baseline understanding of the outsourcing industry in order to identify and implement supply-side interventions. Currently, there is a lack of comprehensive and definitive data on the size of the industry, the number of offshoring companies, the number and type of talent they hire, or their total earnings. This information will be crucial for evidence-based advocacy efforts with the government and Nepal’s development partners, as well as for designing capacity-building programs. Having a coherent baseline would allow industry players to advocate favorable policies such as tax incentives on earnings, simplified periodic reporting to the government, and policies that encourage domestic and foreign investment. It would also enable more informed discussions about the types of non-vocational and vocational training programs needed. For example, should the industry prioritize building a strong supply of advanced skills in areas like data science, dev-ops, and animation, or focus on creating a stronger supply of labor for areas like customer support or digital micro-tasks? Branding Collective branding efforts can help the local software and services industry secure international contracts and, in turn, achieve further capacity building. In 2021, Coursera listed Nepal among the top 10 emerging countries in technology and data science skills. This was a welcome surprise for local and international ecosystems, as Nepal is not typically considered a top destination for software development and services. However, Nepal ranks poorly on international indices related to the ease of doing business or digital entrepreneurship. For example, the Asian Development Bank’s 2021 index on digital entrepreneurship placed Nepal among the worst in Asia due to informal institutions, low human capital, and underdeveloped market conditions. Nepal’s emerging outsourcing IT industry must be able to promote itself externally. In addition to its lower cost base compared to other Asian countries, Nepal can differentiate itself through its diverse talent pool, hospitable culture, and unique cultural offerings. Branding efforts can lead to a direct impact on sales for companies, and attract digital nomads and service providers to further enhance the ecosystem’s capacity. This collective branding effort can also give Nepal’s globally dispersed, technically skilled diaspora a sense of identity and belonging, many of whom are eager to engage with and contribute to the development of their home country. The benefits of capacity and branding can create a virtuous cycle. Networks The local IT industry can become stronger by interacting with and supporting each other. One way to do this is through the development of a peer-learning and mentorship network. In order to compete for higher value contracts, local companies may need to work together and combine complementary skill sets. A peer-learning network can facilitate such partnerships, particularly within specific industry verticals like healthcare, cybersecurity, media and entertainment, and financial services. It can also provide a space for mid-level managers to connect and discuss industry best practices related to human resource management, operational excellence, branding, and international sales. A network is also needed to mentor younger companies and software developers. Such networks can provide a beneficial way for younger companies to build their brand and learn how to work alongside or complement larger software service providers. These mentorship networks can also enable the ecosystem to handle higher capacity work, facilitating partnerships and collaborations based on transparency and healthy competition. As entrepreneurial developers and technical talent seek to build products and develop their own ideas, mentorship networks can provide them with advice, financial support, and commercial linkages Nepal’s software and services outsourcing industry is at a turning point and should be strategic in building its capacity going forward. The global technology industry provided a boost to many during the pandemic, but the winds may be volatile and weakened in the coming years. By working together, Nepali players must aim to improve the quality of their work and that of local human capital. The ecosystem should focus on collaborative efforts to secure larger contracts and build expertise in specific verticals that can be developed over time. By setting these goals, the local industry will signal its intentions and attract support from within and outside the country. The author is a senior fellow with the Nepal Economic Forum and is leading Digital Chautari, a platform to facilitate conversations on furthering the Digital Nepal Framework