Guest Blog: Utility of Mediation in Sri Lanka A brief analysis by Saranee Gunathilaka

Utility of Mediation in Sri Lanka

by  Saranee Gunathilaka*

Introduction

Today, in Sri Lanka, mediation has become a coerced choice upon parties to a dispute.  Even though it is, in its basic characteristics, supposed to be a voluntary choice; most Sri Lankans are coerced to mediate as a result of Court referral.[1]  It is highly unlikely that we would be able to witness parties to a dispute opting for mediation as a dispute resolution alternative. It is because many have failed to recognize the real power of mediation, which has resulted in the failure to achieve its maximum potential.

This paper analyses the existing level of utility of mediation as an ADR (Alternative Dispute Resolution) method in Sri Lanka, focusing on its deficiencies which hinders the achievement of its maximum potential as an effective and transformative dispute resolution mechanism. Due to many reasons highlighted in this paper, it is submitted that Sri Lanka should move towards private mediation as opposed to resorting to community mediation as a result of court referral.  This paper underscores the importance of improving mediation training in Sri Lanka and encouraging those in the legal profession to act as both mediators and mediation advocates. In this regard paper refers to established mediation practices that can be found in the United States of America, the United Kingdom, and also Greece, with its recent introduction of mediation. The essay seeks to propose steps that could be taken in order for Sri Lanka to achieve and benefit from the maximum utility that mediation has to offer.

  What is Mediation?

Mediation is an effective method of alternative dispute resolution. It can be defined as assisted or facilitated communications for amicable agreements.[2]  The disputed parties would be seated together and a third party facilitator known as the mediator will be assisting the communication between the two parties in arriving at their agreement. What is remarkable in this process is that the third party facilitator or the mediator does not possess any power to make decisions as to the agreement or to issue decrees. [3]  His/ Her role is only to assist the productive continuation of the communication between the two parties.[4] The final outcome expected via mediation is that both parties will be winners in the end as opposed to a Court case or Arbitration. It is a flexible process that can be used to settle disputes of a broad range including family disputes, criminal disputes and commercial disputes.

It’s a voluntary and confidential process. Provided that the parties are unable to arrive at an agreement, they can proceed with the normal Court process. The confidentiality of the mediation process ensures that any information disclosed in the discussions remain private and confidential, and will not be accepted as evidence in Court. However this privilege is not available to any threats made to inflict bodily harm or to commit a crime of violence.[5] In private mediation as opposed to community mediation both parties share the cost of mediation.

  Power of Mediation

In my opinion, mediation is the most effective justice mechanism, first and foremost because it creates no winners or losers. As it is the inherent human nature that no person ever wants to lose, mediation is the best option for people.[6] The agreement that is arrived upon in mediation is based on the consensus of both parties. It is not a forced upon agreement like it happens in a Court case or in Arbitration. Parties decide their own terms.[7] The importance is that mediation allows parties to understand the strengths and weaknesses of their cases and enables them to come up with creative solutions which would compensate their weaknesses and not make them lose based on those weaknesses and at the same time reward their strengths.

Mediation also has a transformative approach, which is known and practiced as transformative mediation.[8] The importance of this approach is that, it does not seek the resolution of the immediate problem, but rather, seeks the empowerment and mutual recognition of the parties. It promotes understanding and also results in preventing future disputes as parties develop friendly communication through mediation, as opposed to a Court process where parties end up becoming foes for generations, especially in the case of Land and property disputes. [9]

Also since the agreement is based on consensus, appeals or evasions are quite rare unless, of course, one party completely changes their mind.[10]  In such an instance the next option would be to initiate legal proceedings. However, it cannot be disputed that mediation is better than resorting to judicial process as a mode of first instance effective dispute resolution.

  Mediation in Sri Lanka

  Legal Framework

Even though Sri Lanka has a history of mediation, which runs back the times of ancient kingdoms where adults and monks acted as mediators and carried out community mediation at village councils, mediation was legally introduced to Sri Lanka in 1988 by the enactment of the Mediation Boards Act[11].[12] The Act defines mediation as any lawful means to endeavor to bring the disputants to an amicable settlement and to remove, with their consent and, wherever practicable, the real cause of grievance between them so as to prevent a recurrence of the dispute or offence.

According to the Act a matter can come in to mediation in one of three ways.

  • Subject to exceptions matters can be referred to mediation voluntarily. Voluntary referral is not allowed if one party is the state, if the dispute relates to recovery of property, money or other dues on behalf of the state or if the Attorney General has instituted proceedings for any offence.
  • Also there is mandatory referral of both criminal matters and civil matters.
  1. Criminal matters that can be resolved through mediation are specifically mentioned in the Act as property offences, assault, trespass and defamation.
  2. Civil matters are subject to the qualification of the dispute being related to property, debt, damage or demand not exceeding rupees 250,000.[13] Further it is subject to number of exceptions such as fundamental rights and matrimonial disputes.
  • Next is the Court referral under which any Court may refer disputes for mediation with the consent of the parties. However in this process parties are not allowed to let their legal representatives to take part in the mediation process.

Act also provides for the confidentiality of mediation and explains that nothing disclosed during the mediation process can be used against any party as evidence at any Court on a later date.

Due to the increasing number of commercial disputes, mediation has become an alternate dispute resolution mechanism exercised mainly through the Commercial Mediation Centre Sri Lanka. It was established in 2000 by the enactment of Commercial Mediation Centre of Sri Lanka Act No.44. As per section 3 of the Act, the functions of this centre includes; promoting the wider acceptance of mediation in the resolution of commercial disputes, encouraging parties to use mediation as a means of resolving commercial disputes and conducting mediation.

In 2003, the government enacted another law[14] on mediation enabling the Minister to appoint special mediation boards to resolve special categories of disputes (which are not defined but under the discretion of the Minister to decide what type of disputes fall under this category). This enactment is a positive gesture from the side of the government, as it shows that government has to a certain extent identified the need and usefulness of mediation as a dispute resolution mechanism going beyond the community mediation boards handling the defined types of disputes. Under this Act, government introduced Post Tsunami mediation boards in 2005 by Gazette Extraordinary No. 1397/12 dated June 15, 2005 with a view of utilizing mediation as a means of resolving Tsunami related disputes. Composition and success of these boards are discussed in detail below.[15] Recently government enacted special land mediation boards under the same Act by Gazette Extraordinary No. 1901/8 dated February 10, 2015 and Gazette Extraordinary No. 1904/41 dated March 4, 2015. These boards are established in the Districts of Jaffna, Kilinochchi, Trincomalee, Batticoloa and Anuradhapura in order to settle the disputes relating to ownership or possession of land. The specialty with regards to the districts is that them being the areas which were highly affected by the thirty year civil war that existed in Sri Lanka causing grave damage to both lives and property of people. This act can be acclaimed as an initiative of utilizing mediation in the process of transitional justice, which calls for amicable dispute resolution.

  Mediation practice in Sri Lanka

When discussing the mediation practice in Sri Lanka, more attention is given to community attention than for commercial mediation. According to the evaluation of community mediation boards in Sri Lanka carried out from 2009 till 2011 by the Ministry Of Justice with the support of the Asia Foundation and British High Commission, 300 mediation boards were functioning in Sri Lanka. [16] According to the recent research sponsored by the Asia Foundation (2014), there are 324 community mediation boards across Sri Lanka.[17] The former report being the only complete evaluation carried out on the practice and success of community mediation boards in Sri Lanka in 20 years, and the later one being the very recent research related to mediation in Sri Lanka, this section is based on the findings of these two reports.

  • Awareness

Most community members in areas with active boards are aware of the Mediation Boards. The general awareness percentage was 75% and most among them have got to know about mediation via neighbours/friends or relatives who have used mediation.  These findings evince that, there is no effective mechanism to enhance awareness on mediation among general public.

Moreover, given  the  relative  novelty  of  Mediation  Boards  and the low levels of interaction between the police and the Mediation Boards in  the  North,  there is a general  lack  of  awareness  regarding  the  work done by Mediation Boards. Thus they  have  a less optimistic  view  on  whether  or  not  the  Boards  could  significantly  improve  social  harmony.

  • User Satisfaction/Settlement and success rates

Considering the role of mediation in improving access to justice, survey results show that a substantial number of mediation users find the system to be faster and cheaper than the courts. Some users also view mediation as fairer than the courts.

Thus the 324 community mediation boards are handling an average of 112,000 cases every year with annual settlement rate of 54% to70%. Most users showed a high level of satisfaction (90%).[18]

According to CIOB Construction Conference 2012- Global Challenges in Construction Industry, Colombo Ceylon Institute of Builders- Sri Lanka, “Mediation” as a means of resolving construction disputes has earned a utility score of 87.91 coming second to “Negotiation”. [19]

Among those users of mediation services, an overwhelming 90% were satisfied with the mediation process and 83% indicated that they would take future conflicts before the Mediation Boards.[20]

This high rate of satisfaction reflects a solid record of settlement and compliance. Further community members and mediators also believe that mediation improves social harmony.[21] 82% of disputants and 63% of mediators surveyed opine that mediation has a larger impact on the community beyond resolving individual disputes, and 90% of mediation users, who were subjected to the survey carried out by the Ministry of Justice, find that mediation helps disputants to understand the other side’s point of view.[22] A high percentage of disputants find that their relationship to their adversaries improved through the process.

  • Nature of cases directed and settled through mediation

According to the results of the user surveys on mediation referred to in the two reports, assault was the most common type of dispute mediated, followed by land disputes and then disagreements relating to loans.[23] As reported assault and land issues are also the most challenging to generate settlements for according to mediators because of complex legal issues these cases raise.

 

  • Effect in dispute resolution

Extremely slow pace of Court proceedings which result in cases routinely lasting for years is one of the primary challenges with the Sri Lankan justice system. This is due to the shortage in resources and capacity for the formal justice system to process all of the cases in a timely manner. Consequently it has raised the need for justice to be done in a manner that it is effective. The introduction of mediation for minor disputes as an alternate dispute resolution mechanism was intended to be a solution to this case blockage. However, analyzing the effect of the Community Mediation Board programme in reducing the bulk of cases remains a challenge due to the lack of data. Thus reports[24] conclude stating that more than 2 million individual cases have been mediated, and 60% of them have been resolved since 1991, as evidence to prove the positive effect of community mediation in dispute settlement in Sri Lanka.

Moreover Sri Lankan litigants most often suffer from the unbearable costs involved in the long dragged Court cases. Most of the time litigants end up being debtors due to their inability to afford the legal costs for 10, 15 years. Mediation process gives a great relief to disputed parties by enabling them to share the cost of the mediator and by being able to find a solution to the dispute efficiently. Thereby mediation saves both money and time of disputed parties.

  • Selection process and composition of mediators

Mediator selection process has several phases.[25] Firstly the potential mediators are being nominated by the Grama Niladhari (Village Public Officer), Mediation Board itself, Divisional Secretary or by the Buddhist monks. The surveys have found out that the percentage of nominations made by such personals came up to 34%, 19%, 16% and 14% respectively.[26] Secondly, all nominees are invited for an interview with the Mediation Board Commission. Thereafter, the selected candidates go through a five-day training programme in which the trainers evaluate the candidates and make recommendations to the commission based on which the mediators are selected and appointed. As reported, there are over 7000 mediators assigned to mediation boards across Sri Lanka.

Regarding age limits, 56% of all mediators are known to be age 60 or older whereas mediators under the age of 45 are fewer than 10%. When it comes to gender, the number of female mediators all together did not exceed 100 and only constituted less than 12%. [27]

A careful assessment of the profiles of the current mediators suggests a bias towards the selection of mediators with links to public office, when we look at the profiles of the current mediators. Statistics show that 43% of the mediators are former government employees and 36% are currently working in the public sector.[28]  The remaining 21% originate from varying backgrounds.

However an analysis of their education levels show that 64% of mediators have passed Advanced Level examination[29] or higher examinations and all of the mediators to have finished the Ordinary level examination.[30]

Taken on an ethnicity basis, the ratio of Tamil mediators to the population levels is low at 5%, where Muslims make up 9% and Sinhalese 86% from the entire mediator population.[31] Sri Lanka being a multi-ethnic country, this composition is problematic.

The challenge here seems to be insufficient nominations and willing volunteers among these communities.

·      Use of mediation in post Tsunami context

Apart from the aspects in regular community mediation practice, it is important to note that Sri Lanka utilized mediation as a tool of dispute resolution in the post Tsunami context. [32] This effort is recognized as a highly commendable step taken by the Ministry of Justice and Judicial Reform, in order to address the problems of Tsunami victims of Sri Lanka in 2004.

The Gazette Extraordinary stated that “any dispute where the debt, damage or demand has arisen as a result of the tsunami which occurred on December 26, 2004 would be mediated by Special Mediation Boards” consisting of the following categories of persons:-

(a) A professional qualification obtained from a recognized Professional Body, established by or under any written law;

(b) Be a staff officer who is a member of the –

(i) Sri Lanka Educational Administrative Service;

(ii) Sri Lanka Principals’ Service;

(iii) Sri Lanka Teacher’s Service; or

(iv) Sri Lanka Teacher Educators’ Service; or

(c) Be a retired staff officer in the public service.

The Legal Aid Commission of Sri Lanka (LAC) in collaboration with Alternative Disputes Resolution Institute (ADRI) commenced a Mediator Trainer Training Program on July 8, 2005 where 32 Mediator Trainers selected from different professional backgrounds, including lawyers, engineers, accountants and retired public servants, participated. Mediation Trainers, after 06 days of specialized training participated in observing a community based mediation process. Thereupon participants were examined and interviewed before certifying them as Mediator Trainers to undertake Mediation Training of Grama Niladharies (State Village Officers) of some 1699 Grama Niladhari (State Village Officer) Divisions in tsunami-affected areas.The 1st batch of Trainers commenced their work in mid August 2005 while the 2nd batch of 35 Mediator Trainers were trained in September 2005 and released for practice. Grama  Niladharies (State Village Officers) were trained for a period of 03 days on the basic mediation skills; international principles on internal displaced persons and Special tsunami Law No. 16 of 2005. Fifty three-day workshops were organized with the assistance of the district and Divisional Secretaries in the 13 Districts affected by the tsunami.[33]

However, details as to the number of cases successfully completed, the cases unsolved and issues faced are not publicly available. This again highlights the non-availability of information which has lead to the minimum awareness among general public as to the utility of mediation in Sri Lanka. Despite that lope hole in the system, it cannot be denied that Sri Lankan officials have identified the fact that mediation is a very effective dispute resolution tool that can be used in post- disaster contexts.

  Does this practice reflect the optimum utility of mediation?

Despite the many benefits attached to mediation, and the legal provisions pertaining to its implementation, it is submitted that Sri Lanka does not utilize such powers to its best.

  What is missing?

At present, mediation is known among people as an inefficient mechanism forced on them by the Courts.. Some even have the common misconception that the Court’s referral of their case to the mediation board is a sign of the Court considering the case as being trivial in nature. They also consider mediation to be a means of solving very simple disputes, as they are not aware as to how mediation is preferred worldwide in dealing with serious disputes, often involving millions of dollars.

Moreover, since only community mediation is generally practiced in Sri Lanka, professional mediators are hard to be found. There is no particular institute which offers mediators training programmes for those interested in learning the art of mediation, and there is no law which enables private mediation. None of the Universities in Sri Lanka, not even the faculties of Law, offer the subject of Alternate Dispute Resolution. Thus awareness is very low among the general public, academics and legal practitioners as to the true values of mediation and other dispute resolution mechanisms. Nevertheless, it is conceded that Arbitration and Negotiation are in a better position compared to mediation, especially due to the fact that business entities and construction firms resort to them as a dispute resolution mechanism in most cases.

As discussed above, most young people are generally discouraged from entering the profession of a mediator. If you ask from law students in Sri Lanka as to their future career options,  at least a 99% would never have considered mediation as a viable career option. [34] This is owing to the fact that mediation as a career has not yet gained momentum, underscored by the fact that it is only practiced at community level. It cannot be denied that this reduced the possibility of having well trained mediators in the field of dispute resolution. Consequently, people are denied the option of going for real voluntary mediation, where they can select their own mediating venue, time and the mediator. One might point to the fact that the Act allows the selection of the mediator. However, in reality, the pool of mediators thus available is extremely limited in number and, due to a lack of proper training, there is hardly in distinguishing factor. This should be compared with a country that allows private mediation practice, thereby paving opportunity for a larger pool of mediators with more skills, knowledge and experience.  Non-involvement of lawyers is another lacuna in the system. Need for a mediation advocate arises due to many important aspects of mediation process.[35] Convincing clients or opponents to mediate, drafting an effective contract to mediate, dealing with obligations created by law or judicial order, selecting the mediator, shaping the field are some of those important aspects in mediation that is effectively covered by a mediation advocate.[36] Thus in the process of mediation, an advocate plays a very important part in initiating the process, shaping the process and positively influencing the process till the dispute is resolved.[37] More importantly it is the advocate who can productively guide the parties to understand their strengths and weaknesses in the dispute at hand. Mediation requires both parties to understand the strengths and weaknesses of their cases and to think of ways in which they can minimize the disadvantages or the weakness of their case both legally and factually by compromising their strengths with the other party’s weakness and vice versa.  For this purpose, an attorney can offer considerable support in assessing the strengths and weaknesses that a lay person might not notice. Furthermore, trained mediation advocates can support their clients in bringing forth creative solutions to resolve the dispute. In the absence of an advocate in the mediation process, sometimes the mediators have to play this role as well, whereby the parties might confuse such involvement as being bias in the process. Failure to understand such strengths and weaknesses can result in a delay or in impossibility in arriving at an amicable solution, which in return results in a decrease in effectiveness and efficiency of mediation. This has been another reason why people do not have a lot of faith in mediation as an option for dispute resolution, as they do not see the professionalism in the process.  It is noteworthy that the mediator will always make sure that the advocate does not get involved unnecessarily in the mediation process. In some cases mediators ask the advocates to leave the mediation room if they act in an inappropriate manner. But this will not occur if the advocates are trained for mediation advocacy.

Hence it appears that Sri Lankan practice of mediation does not reflect the optimum utility of mediation.

  How do they do?

Mediation has achieved phenomenal success in jurisdictions such as USA and UK while jurisdictions such as Greece[38] is trying to achieve its optimum utility by enacting new laws on mediation practice. Mediation as a practice was established in Australia by the establishment of LEADR in 1988 and in Canada by the establishment of ADR Institute of Canada. Singapore, Hong Kong, Continental Europe and Latin America also adopted mediation as a dispute resolution mechanism following UK. This part specifically refers to USA, UK and Greece in analyzing the practice of mediation in those Jurisdictions.

·      United States of America

Since the 18th century, mediation has been a core element of dispute resolution theory and practice in the US. In process terms, modern mediation crystallized when Professor Frank E.A. Sander of Harvard Law School presented the paper “Perspective Justice in the Future” at the Roscoe Pound Conference of 1976 in 1976 in St.Paul, Minnesota on the invitation of United States Chief Justice Warren Burger. There the legal scholars and jurists who gathered discussed ways to address dissatisfaction with the American legal system and to reform the administration and delivery of justice. Following this the US State legislature focused on mediation, and law and business schools began research on mediation. Establishment of the Pepperdine Straus Institute for Dispute Resolution in 1986 and the formation of Association for Conflict Resolution in late 1980s have supported the strengthening of mediation in USA.

As per the US equal employment opportunity commission, conducted 10,421 mediations were conducted in 2014 at a resolution rate of 76.7%.[39] State of California in the US has reported the settlement of 95% civil cases filed in Court without going to trial.  Mediation is widely utilized and very successful in the United States for divorce and child custody cases. It is also commonly used for other forms of interpersonal disputes such as disputes between neighbors, roommates, or co-workers, labor-management disputes, community disputes, environmental disputes, and international disputes. [40]

At present they have many Universities offering the subject Alternate Dispute Resolution and institutes offering training. There are professional mediators and mediation conferences and competitions which highly contribute towards the development of mediation. They are now taking steps to introduce Online Dispute Resolution as they believe that it will acquire significant success.[41]

·      United Kingdom

2014 Mediation Audit conducted by the Center for Effective Dispute Resolution states that the UK mediation market has grown by 9% in the last year, meaning that commercial mediations were performed during that year.[42]

The number of mediation service providers and the experienced mediators has increased together with the number of young mediators and female mediators. Both lawyers and non-lawyers are practicing mediation as a profession in the UK.

The audit report also indicated that over 75% of cases settlement on the day of mediation and another 11% shortly after. Lawyers have commented that 71% of lawyers and 62% of clients do well at mediation.

  • Greece

Law 3898/2010 on mediation transposes the Directive 2008/52/EC. [43] The Law applies to all mediators cross board and internal.[44]Laws governing mediation were brought as amendments to the Code of Civil Procedure with the idea that mediation, conciliation and out-of-court dispute resolution should co-exist within the Civil Jurisprudence.

It allows Court referral as well as private mediation practice upholding the confidentiality of the process. Further it supports the enforceability of mediation agreements.

Most importantly, it has set out the requirement of the accreditation and training for mediations. The Act sets out the need for quality control mechanisms for the assessment of mediators and the accreditation requirements for foreign mediators together with a “Code of Deontology”[45] which accredited mediators must respect.

It also sets out the pricing criteria that mediators should follow thereby encouraging mediation to be practiced as a profession. It is evident that Greece has been progressive with its laws even at the phase of introduction.

  Mediation in conflict and post-conflict contexts

Mediation is not only used in resolution of private, commercial and commercial disputes, but also to resolve internal and international armed conflicts. [46] Not only in conflicts but mediation is effective in post conflict contexts, as a means of achieving transitional justice.[47]

·      Remarks by the UN official for mediation in conflict resolution

Ambassador on Mediation and the Role of Member States, James W. Pardew made remarks at the U.N. General Assembly as to the value of mediation, in the year 2012. [48]

He shared his experience as a mediator/ negotiator in the two conflicts in the Balkans; Bosnia and Herzogovinia in 1995 and Former Yugoslav Republic of Macedonia in 2011. According to him, the most important factor in the mediation of a conflict is the underlying will of the parties to reach a solution in which compromises are required of all sides. Even though a will to achieve settlement may not be clear at the beginning of the process, mediator can have a positive influence on the will of the parties to negotiate.

According to him bringing any mediation to closure (reaching an agreement accepted by the parties) is the most difficult and the most critical step in the process. Often personal emotions are high, various pressure groups may be lobbying the parties hard to prevent an agreement, and the political consequences of an agreement may seem very risky for the parties. This final step can thus be daunting for the mediator.

Once concluded, the agreement belongs to the parties, not the mediator or the international organization or the nation the mediator represents. Ultimately, the parties to the conflict must be responsible for their agreement and its full implementation.

His remarks strongly articulate the great power of mediation in all contexts.

·      Sri Lanka: conflict and post-conflict context

Norway acted as a mediator in the Sri Lankan civil war.[49] Similarly mediation is one of the effective ways to bring the parties involved in a conflict to one table and facilitating them to amicably discuss about their side’s of the story, which has been highly productive in coming up with effective solutions that could end a conflict.[50]

Now the importance is in adopting mediation in the post-conflict context with a view of achieving transitional justice for all. This is an aspect that Sri Lanka should now focus on. After a 30 year war, we are looking forward reconciliation. In order to achieve it, Sri Lanka can adopt mediation in addressing the needs of victims of war. Especially in the processes of resettlement of detainees, obtaining justice for disappeared persons, in renovating war affected areas and rehabilitating detainees, mediation can be of immense value, as it makes the parties understand each others’ situation. Thus it will create the friendly environment that is needed between the government and the victims, which will expedite the reconciliation process while satisfying the needs of both parties.[51]

Even though efforts were made in 2014, to involve South Africa as a mediator in post-conflict context,[52] there is no report of those efforts being successfully carried forward. Thus there is still room for mediation to come to play and expedite the process of achieving transitional justice in post-conflict Sri Lanka. As highlighted above the enactment of land mediation boards in the war affected areas is appreciated in this regard.[53] However the success is yet to be achieved by offering proper training to mediators as to post conflict mediation skills and inter cultural mediation techniques. Raising awareness among people living in war affected areas as to the efficiency and utility of mediation as a dispute settlement mechanism is also highly important.

The above analysis highlights that we are not utilizing mediation in its maximum potential and that there are significant deficiencies in the steps undertaken to develop mediation in Sri Lanka.

  Need to step forward

When researching on the mediation practice in Sri Lanka with the support of the evaluation reports that are previously cited in this paper, one tends to wonder as to what prevents Sri Lanka from following in the same steps as Greece, introducing private mediation. If Sri Lanka has achieved a very high rate of success in community mediation, would it not be greater if we allow the well trained mediators to start private mediation practice in Sri Lanka? This will encourage quality mediation and extensive practice and specialization among the mediators, as is currently witnessed in the USA and the UK, due to competition.[54]

When it comes to the participation of mediation attorneys, Sri Lankan’s seem to have misunderstood their role in the mediation process. Their understanding is that participation of attorneys will convert the process in to one of adversarial judicial procedure and they will not be of any difference to lawyers appearing in the Court. These misconceptions as to the negativities that can occur in the involvement of advocates in the mediation process are natural due to the fact that awareness pertaining to the nature and value of mediation is lacking among Sri Lankans except for  a handful of academics or professionals who have studied further on dispute resolution.

Thus Sri Lanka should introduce modules on dispute resolution to University curriculums or should establish a national institute to carry out mediator training programmes. In support of this process Laws should be enacted enabling mediation to be practiced as a profession in the country. Increasing youth participation and interest in the field will strengthen the mediation practice in Sri Lanka as a dispute resolution mechanism. In addition to all these long term measures, Sri Lanka can take steps to use mediation in the process of reconciliation in addressing the disputes between the victims of war and the government.

These further steps will ensure that Sri Lanka achieves the optimum utility of mediation as an alternative dispute resolution method.

Conclusion

Mediation has proved its vibrant competency in achieving great success in dispute resolution out of Court, both domestically and internationally. Yet Sri Lanka is yet to experience the true benefits of mediation as a dispute resolution mechanism. The success achieved through Sri Lankan community mediation proves that future can be much better.  Thus further steps need to be taken to amend the law or to introduce new laws on practicing mediation as a profession. More importantly awareness raising programmes and education on alternate dispute resolution should be given more importance. As a result Sri Lanka will have an effective and efficient justice mechanism supported through mediation.

Thereby Justice will not only be done but also be seen to be done

References

 

[1] Theqsweekcom, ‘Methods of Construction Dispute Resolution Applicable in Sri Lanka’,6-Feb-2013 < http://theqsweek.com/news_det.php?id=59>accessed 1 November 2015

[2] Civil mediation org, ‘What is Mediation?’ <http://www.civilmediation.org/about-mediation/29/what-is-mediation-> accessed 1 November 2015

[3] Adrienne Krikorian, ‘Litigate or Mediate?: Mediation as an Alternative to Lawsuits’ , Mediatecom,  January-2002 <http://www.mediate.com/articles/krikorian.cfm&gt;  accessed 1 November 2015
[4] Edward. P Ahren, ‘What does a Mediator Do?’ Mediatecom, February 2002 <http://www.mediate.com/articles/ahrens1.cfm> accessed 1 November 2015
[5] KarinS Hobbs, ‘Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?’ , Mediatecom, January 2007  <http://www.mediate.com/articles/hobbsk1.cfm> accessed 23 November 2015

[6] Michael Roberts, ‘Why Mediation Works’, Mediatecom, August 2000,  <http://www.mediate.com/articles/roberts.cfm> accessed 1 November 201
[7] Jessica. A Stepp, ‘How does Mediation Process Work’, Mediatecom, February 2003, <http://www.mediate.com/articles/steppJ.cfm> accessed 1 November 2015
[8] Brad Spangler, ‘Transformative Mediation’, Beyondintractabilityorg, October 2003 <http://www.beyondintractability.org/essay/transformative-mediation> accessed 24 November 2015
[9]LawrenceA Huerta, ‘Why Mediation’, Mediatecom, January 2014  <http://www.mediate.com/articles/huertaL1.cfm> accessed 3 November 2015
[10] Ibid

[11] Mediation Boards Act No. 72 of 1988

[12] Nadja Alexander, ‘From Communities to Corporations: The Growth of Mediation in Sri Lanka’, Mediatecom,  August 2002, <http://mediate.com/articles/alexander.cfm > accessed 3 November 2015

[13] Mediation(Amendment) Act No. 4 of 2011

[14] Mediation (Special Categories of Disputes) Act No. 21 of 2003

[15] Please see page 10

[16] ‘ Evaluation of the Community Mediation Boards in Sri Lanka’, January 2011, <http://c.ymcdn.com /sites/ nafcm.site-ym.com/resource/resmgr/Research/Evaluation-_Community_Mediat.pdf> accessed 4 November 2015

[17] Jayasundara R, V. Craig, ‘ Women’s Experience of Local Justice: Community Mediation in Sri Lanka’, January 2014,<http://r4d.dfid.gov.uk/pdf/outputs/JSRP/JSRP10-JayasundereValtersR.pdf&gt; accessed 4 November 2015

[18] Supra  note 11

[19] Supra note 1

[20] Supra note 10

[21] Ibid

[22] Supra note 10 & 11

[23] Ibid

[24] Ibid

[25] Supra  note 11

[26] Ibid

[27] Ibid

[28] Supra note 10

[29] This exam is similar to the University Entrance exams in other countries. Students take this exam as the final exam of their secondary education and upon the successful passing of this exam they get admitted to Universities.

[30] Ibid

[31] Supra note 10

[32] Gazette Extraordinary No. 1397/12 dated June 15, 2005

[33] Archives.dailynews.lk, “Feature” (2015) <http://archives.dailynews.lk/2005/08/08/fea01.htm&gt; accessed 2 December 2015.

[34] (1% is a disclaimer for rare cases like myself, who got to learn further about mediation because of International Mock Mediation Competitions and training programmes and now trying so hard to find a way to be a mediator.)

[35] Dwight Golann, ‘Mediation Advocacy: Role of Lawyers in Advocacy’, JAMS International, 2011, 5

[36] Ibid 7-35

[37] Ibid

[38] Mediation-neteu, ‘Legal Frame of Mediation in Greece’, 09 May 2012, <http://mediation-net.eu/index.php?option=com_content> accessed 3 November 2015

[39] Eeocgov, <http://www.eeoc.gov/eeoc/mediation/mediation_stats.cfm> accessed 15November 2015
[40] Google user content com,  ‘Mediation’ <http://webcache. googleusercontent.com /search ?q= cache : http://www.colorado.edu/conflict/peace/treatment/mediatn.htm> accessed 21 November 2015
[41] Michael Leathes, ‘Where in the world will mediation be within ten years’, November 2010,  <https://imimediation.org/2020-vision-article> accessed 21 November 2015

[42] Cedrcom, ‘The Sixth Mediation Audit’, 22 May 2014, <http://www.cedr.com/docslib/TheMediator Audit2014.pdf> accessed 18 November 2015
[43] Supra note 14

[45]  It means a code of professional conduct. See IMI Code of Professional Conduct, International Mediation Institute, < https://imimediation.org/imi-code-of-professional-conduct&gt;,accessed 20 November 2015

[46] Nathalie, ‘Statistics about International Mediation’, 21 March 2014, <http://www.communitie sintransition.com/StatisticsaboutInternationalMediation> accessed 18 November 2015

[47] Lars Kirchhof, ‘Linking Mediation and Transitional Justice: The use of Interest Based Mediation in the Process of Transition”, linkspringercom, 2009, 237-260.

[48] JamesW Pardew, ‘US Official at UN on Role of Mediation in Conflict Resolution’, 26 May 2012 <http://london.usembassy.gov/forpol313.html> accessed 18 November 2015

[49] Shammika D.L.A.H, ‘Norwegian Mediation in Sri Lankan Conflict’, University of Kaleniya, Annual Research Symposium,2005.

[50] Supra note 45

[51] Supra note 44

[52] Jehan Perera , ‘A new phase of mediation to get from post-war to post-conflict Sri Lanka’ , Groundviews, 5 May 2014 <http://groundviews.org/2014/05/05/a-new-phase-of-mediation-to-get-from-post-war-to-post-conflict-sri-lanka/&gt;  accessed 24 November 2015

[53] Please see page 7

[54] UK, USA and many other jurisdictions, where mediation is widely practiced, have specialized mediators for different types of disputes such as family mediators, labour dispute mediators and commercial mediators.

Saranee

*Saranee Gunathilaka is a Law Graduate from Faculty of Law, University of Colombo, Sri Lanka. She is a founding member and the co-president of the Sri Lanka Mock Mediation Club and was a member of the first ever Sri Lankan Mock Mediation team to represent Sri Lanka in an international mock mediation tournament.  Currently, she works as a freelance legal researcher and as a project intern attached to the United Nations Development Programme, Ministry of Justice Sri Lanka.

2 comments

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s