By: Donald L Swanson
Mediation has occurred for centuries—and millennia—in various forms, all across the world.
What follows is a summary of information on the effective use of mediation in today’s Sri Lanka.[Fn. 1]
Sri Lanka has a history of mediation, running back to the times of ancient kingdoms, where monks and others acted as mediators and carried out community mediation at village councils.
But today’s embodiment of mediation in Sri Lanka begins in 1988 with enactment of the Mediation Boards Act (“Act”), which defines mediation as any lawful means to:
- bring disputants to an amicable settlement;
- remove the real cause of grievance; and
- prevent a recurrence of the dispute or offence.
According to the Act, a matter can come to mediation in one of three ways.
- Voluntary referral, (i) when property, money or other dues are at stake, and (ii) when the Attorney General has instituted proceedings for any offence;
- Mandatory referral, (i) of criminal matters involving property offences, assault, trespass and defamation, and (ii) civil matters involving disputes over property, debt, damage or demand, not exceeding rupees 250,000; or
- Court referral, with consent of the parties but without legal representation in the mediation process.
Additionally, confidentiality is imposed upon the parties, so that nothing disclosed during mediation can be used as evidence against a party in Court.
Types of Disputes
For commercial disputes, mediation is exercised mainly through the Commercial Mediation Centre Sri Lanka, established by law in 2000 to:
- promote the wider acceptance of mediation in resolving commercial disputes;
- encourage parties to use mediation for such disputes; and
- conduct mediation.
For other disputes:
- a 2003 Sri Lanka law enables the Minister to appoint special mediation boards for a variety of disputes;
- in 2005, the Sri Lankan government introduces Post Tsunami mediation boards for Tsunami related disputes; and
- a 2015 Sri Lanka law allows for special land mediation boards to settle disputes over ownership or possession of land in the Districts of Jaffna, Kilinochchi, Trincomalee, Batticoloa and Anuradhapura, which Districts were highly affected by the thirty year Sri Lanka civil war.
Such laws demonstrate the Sri Lankan government’s (i) recognition of the need for and usefulness of mediation, and (ii) commitment to mediation as a dispute resolution mechanism for a broad range of disputes.
According to a 2009 through 2011 study and a 2014 study:
- 324 community mediation boards are functioning in Sri Lanka:
- handling an average of 112,000 cases every year;
- achieving annual settlement rates between 54% and 70%; and
- with 90% of users expressing high levels of satisfaction and 83% saying they would use mediation again.
- Community members and mediators believe mediation improves social harmony:
- 82% of disputants and 63% of mediators opine that mediation has a larger impact on the community than merely resolving individual disputes;
- 90% of mediation users say that mediation helps disputants understand the other side’s point of view; and
- A high percentage of disputants say that relationships with their adversaries improve through mediation.
- A substantial number of users find mediation to be faster, cheaper and fairer than litigation in the courts.
- 75% of community members, in areas with active mediation boards, are aware of those boards—most learn about mediation through neighbors, friends and relatives who have used mediation.
- In the North:
- mediation boards are a relative novelty;
- levels of interaction between the police and mediation boards is low; and
- people generally lack awareness of and have less optimism about the work and effect of those boards.
- As to the nature of mediated cases:
- assault is the most common mediated dispute;
- land disputes are the next most common, followed by disagreements over loans; and
- assault and land issues are the most challenging to generate settlements because of (according to mediators) the complexity of legal issues involved.
Slow Court System
One reason for the success of mediation in Sri Lanka is the extremely slow pace of Court proceedings:
- Court cases in Sri Lanka routinely last for years—sometimes for ten to fifteen years—because of shortages in resources and capacity within the formal justice system;
- A result is that many Sri Lankan litigants suffer unbearable litigation costs and often become debtors as a result; and
- Mediation offers great relief, with mediation costs being shared, when a resolution is found.
Here’s a huge “thank you” for the foregoing information on the successful use of mediation in Sri Lanka—it provides helpful lessons to us all!!
Footnote 1. Information in this article is from, “Utility of Mediation in Sri Lanka,” by Sara Gunathilaka, published here.
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