Mediation training for resolving tsunami-linked disputes

As an expeditious and a non-adversarial method of resolution of tsunami related disputes, the Ministry of Justice and Judicial Reform has brought into operation the Mediation (Special Categories of Disputes) Act No. 21 of 2003 by Gazette Extraordinary No. 1397/12 dated June 15, 2005.

The Gazette Extraordinary states 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.

The Mediator Trainers would be trained by experts who have been trained both in Sri Lanka and abroad. Among them are ADRI and LAC Chairman, S. S. Wijeratne who has received Postgraduate Training in Disputes Resolution in Austria and Disaster Management at the Wisconsin University, USA. Mediator Training Experts from Community Mediation Training Program of the Ministry of Justice, such as S. Gunawardena, S. Dematagoda and Y. de Silva conduct interest based mediation skills development program on the Christopher Moore Model. The negotiation techniques and supernatural norms applicable to internally displaced persons would be facilitated by S. S. Wijeratne.

Mediation (Special Categories of Disputes) Act. of No. 21 of 2003 would be the subject matter that would be covered by Ms. Kamilini de Silva, Additional Secretary, Ministry of Justice and Judicial Reform. Former Secretary of the Prime Minister, V. K. Nanayakkara would deal with powers and duties of the Grama Niladharies and the subject of legal binding and non-binding agreements would be presented by K. Kanag-Isvaran, President's Counsel.

Tsunami Special Law No. 16 of 2005 would be explained by President's Counsel P. A. Ratnayake, Additional Solicitor-General and land disputes arising out of tsunami would be the subject that would be discussed by Parakrama Karunaratne, former Deputy Solicitor-General.

Accountability and transparency in tsunami assistance would be presented by C. Weliamuna, Attorney-at-Law who is also Director of Transparency International, Sri Lanka Chapter.

Mediation Trainers, after 06 days of specialized training would participate in observing a community based mediation process. Thereupon participants would be examined and interviewed before certifying them as Mediator Trainers to undertake Mediation Training of Grama Niladharies of some 1699 Grama Niladhari Divisions in tsunami-affected areas.

The 1st batch of Trainers would commence their work in mid August while the 2nd batch of 35 Mediator Trainers would be trained in September. Grama Seva Niladharies would be 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 will be organized with the assistance of the district and Divisional Secretaries in the 13 Districts affected by the tsunami. Grama Niladharies need special training in mediation in view of the provisions contained in Section 22 of the Mediation (Special Categories of Disputes) Act of No. 21 of 2003 in which it is provided Special Mediation Boards in carrying out its duties under paragraph (a) of Section 11 and Subsection (2) of Section 17 which require the assistance of any Grama Seva Niladhari appointed for a Grama Seva Niladhari Division within the Special Mediation Board Area, to communicate any notification to any party to a dispute or other person, and such Grama Seva Niladhari shall when so required, render all such assistance as may be necessary in the regard to such Board.

Special Mediation Boards

When Mediation (Special Categories) Act No. 21 of 2003 was presented in parliament, its constitutional validity was challenged before the Supreme Court. The petitioners contended that the Special Mediation Act which could be extended by the Minister to cover social and economic issues is interfering with the judicial process.

The Supreme Court rejected the contention on the basis 'that Minister can only prescribe by Gazette Notification, type of disputes to be referred and the qualification of the Mediators'. Panel of mediators was not appointed by the Minister but by the Mediation Board Commission appointed under Mediation Board Act of No. 12 of 1988 by the President. Three out, five Commissioners should have held judicial office either in the Supreme Court or in the Court of Appeal. Independence of the Special Mediation Boards was thus secured.

Why mediate?

Mediation as a civil and commercial dispute resolution strategy had not received the serious attention in Sri Lanka as in the developed countries.

The value of mediation as a civil and commercial dispute resolution strategy, which is fundamentally different from mediation of political disputes, need not be abandoned or treated with usual Sri Lankan cynicism. The fundamental right to have access to court to resolve any dispute had in a way ennobled the fractious adversarial litigation process as the only method for resolution of disputes. While preserving the fundamental right to have free access to courts, a serious effort needs to be made to develop institutions of mediation and train professional mediators.

Ironically, the unblemished reputation of the superior courts of Sri Lanka for integrity, independence and the commitment to uphold the principle of Rule of Law is a major reason for the proclivity of an adversarial litigation culture in Sri Lanka. Despite the perennial complaints of Law's Delays and unsalutary professional practices of some lawyers and recalcitrant attitude of some judges which underpin the Law's Delays, Sri Lankan Litigants, human or juristic, are submerged in a litigious culture. They wallop at winning cases, even pyrrhic victories at great cost, sometimes contributing to social discord.

Sri Lanka is considered to be the second most litigious society in the contemporary world, a record that we should not be proud of as litigated victories and defeats can increase violence and even result in gruesome murders like the reported Hokandara quintuple killing.

Despite the existence of socio-religious creeds of non-violence influencing the Sri Lankan psyche, social violence, whether they erupt due to bitter litigations, elections or ethnic or religious prejudices, appear to define modern Sri Lankan society. We are no longer peace-loving or peaceful. For even the demonstrations for peace ends up in violence.

Historically, the greatest protagonists of mediation as the basis of non-violent dispute resolution were the founders of great religions. Moses, the Buddha, Jesus Christ, Prophet Mohamed were all great mediators. In more recent times Mahathma Ghandi and Dr. Martin Luther King espoused the doctrine of non-violence as a political philosophy. Negotiation and mediation was their chosen strategy.

In the modern world, after the great catastrophe of the two World Wars the victorious nations set up the United Nations as the superior mediator of international disputes. The comparative decrease of international was during the past fifty-two years was largely due to the UN mediation efforts.

Mediation in Sri Lanka

Historically, Sri Lankan system of justice revolved a round village level informal mediation mechanisms, such as, the teachers and the village temple and churches playing a mediators role in Gam Sabha. The formal introduction of Conciliation Board in 1958 was controversial and eventually turned to be a failure.

The fundamental issue that was debated by the Supreme Court was not the desirability of mediation as a dispute resolution process but weather even the legislature could place any fretters on the path of a citizen's right to "invoke the aid of courts," to use Chief Justice Basnayake's words, by making it imperative to obtain a certificate from a Conciliation Board before instituting any legal action. The Supreme Court was divided on the issue with Justice Alles consistently insisting that right to seek judicial redress is an inalienable fundamental right of citizen. This debate took place at a time when there was no constitutional protection of fundamental rights. However, H. N. G. Fernando C. J. in the famous Nonahamy case affirmed the right of the legislature by holding that under the Conciliation Board Act at least in civil case, "there is no ousting or erosion of judicial powers."

The Mediation Boards Act enacted in 1988 and being in operation since then is regarded as a comparatively more successful legislative enactment but continues to evoke serious debate in view of its compulsory requirement of mediation before litigation.

Voluntary commercial and civil mediation where parties enlist the assistance of professional mediators in whom they have trust, to help to settle their disputes is fundamentally different from compulsory mediation.

Advantages

Mediation is defined as "a consensual facilitative process, in which disputing parties engage the assistance of a neutral third party, the mediator, who has no authoritative decision-making power but work with the disputants to overcome emotional barriers and explore if appropriate, the possibility of reaching a mutually acceptable and workable solution to some or all issues in dispute."

The mediator uses certain tested procedures, techniques and skills to help the parties themselves to negotiate a resolution to the dispute without having to resort to adjudication by a judge or an arbitrator. In civil disputes, the world mediation is often interchangeably used with the word conciliation causing some confusion, even though mediation is generally regarded as a more proactive facilitation process than conciliation.

The submission to mediation is generally a voluntary process even though in certain disputes, such as those covered by the Mediation Boards Act No. 72 of 1988, submission to mediation of certain categories of disputes is made a priori requirement before seeking redress through courts. In commercial mediation law, submission to mediation does not oust jurisdiction of courts.

The mediated agreements invariably incorporate a sustainable procedure for enforcement. However, in the rare case where a mediated agreement is not honoured in violation of its provisions the aggrieved party is not in a position to enforce it through courts like in the case of a judgement or an arbitral award. The aggrieved party would have to resort to courts seeking specific performance of the agreement on the basis of breach of contract.

While a court may be sympathetic to the mediated agreement it is not bound to adhere to it and may inquire into the dispute de novo. Mediation legislation in many countries has provided for the speedy enforcement of mediated agreements with the minimum of additional inquiry. The skill and the prestige of the mediator and just and fair and consensual manner in which the mediation process was conducted are ingredients that the court would examine before making judgement on the enforceability of the mediation agreement.

Legal Aid Commission of Sri Lanka