10/25/2020

MEDIATION AND
OCTOBER 27, 2020 MEDIATION PROCESS SLIDA - Colombo
IN SRI LANKA

A special reference to:

Mediation as an Alternative Dispute Resolution (ADR) Process

M. THIRUNAVUKARASU LL.B, MDS

Attorney at Law/Mediation Consultant

ADR (Alternative Dispute Resolution) is an INFORMAL AND

VOLUNTARY CONFLICT RESOLUTION PROCESSES in which an

INDIVIDUAL OR GROUP settle their disputes outside Courts using

ADR methods and NEGOTIATE TANGIBLE and MUTUALLY

ACCEPTABLE AGREEMENTS that resolve their differences.

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ADR (Alternative Dispute Resolution) is a useful method/s in which

an INDIVIDUAL OR GROUP could settle their disputes as benefits

to both competing parties which resolve their differences in an

amicable manner to their satisfaction.

UNNECESSARY
CONFLICT

RELATIONSHIP
PROBLEMS
- Strong emotions
- Misperceptions or stereotypes
- Poor or miscommunication
- Negative, repetitive behavior
-Historical relationship

VALUES
DATA
PROBLEMS
“Conflict is competitive
DIFFERENCES -
-
Lack of information
Misinformation
behavior between two
or more people and it
- Day to day values
- Different views on what is relevant
- Terminal values
- Different interpretations of data
- Self definition values

occurs when one or

- Different assessment procedures

more people compete

STRUCTURAL
PROBLEMS
over perceived or
actual incompatible
PS
L
RA

- How a situation is set up

YC
U

- Role definitions
H
ED

goals and limited

OL

- Time constraints
OC

OG

- Geographic/physical relationships INTERESTS

PR

IC

resources”
- Unequal power/authority
AL

- Unequal control of resources

SUBSTANTIVE

Dr Christopher W. Moore

GENUINE
CONFLICT

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Voluntary & Informal Compulsory & Formal

Negotiation Arbitration Adjudication

The decision making powers of parties decreases – The decision making powers of third party increases

Mediation Administrative
Justice

Towards a Win – Win situation Win – Lose situation

More concern on reconciliation Relationship is not a priority
of relationship

“Conflict is a frequent precursor to Negotiation. In fact, the

reasons people enter Mediation is because they have unmet
needs, or interests and believe that the third party has some
ability to fulfill those interests”
- Dr. Christopher W Moore - Mediation Process

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MEDIATION is a VOLUNTARY CONFLICT RESOLUTION PROCESS in which an

INDIVIDUAL OR GROUP helps people in conflict to NEGOTIATE TANGIBLE and

MUTUALLY ACCEPTABLE AGREEMENTS that resolve their differences.

It can also help disputants to RESTORE, REDEFINE OR TRANSFORM THEIR

ATTITUDES AND INTERACTIONS toward one another, and move toward more

PEACEFUL RELATIONSHIPS AND RECONCILIATION.

MEDIATION

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HISTORICAL PERPECTIVE

2011
LLRC
2003 Recommendation
Mediation
2000 (Special
Commercial Categories of
1988 Mediation Disputes) Act
Mediation Centre of Sri
1958 Boards Act Lanka Act
Conciliation
Early Sri Lanka Boards Act
Kings Period
Gam Sabha

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COMMUNITY MEDIATION PROGRAMME

 Legal Framework
– Mediation Boards Act – No. 72 of 1988 as amended (1997, 2011, 2016)
 The Programme
 Commenced in 1990
 Purpose – Amicable Settlement of Civil Disputes and Minor Offences towards ensuring peace in
community level and thereby, be a supplement to other judicial institutions
 Functions in as Divisional Secretariat Level
 329 Mediation Boards with 8970 Voluntary Mediators around the country
 The Jurisdiction
 DISPUTE in relating to the debt, damage or demand in relation to movable and immovable
properties and contracts. It is mandatory to go for mediation before filing an action in a court of
law, where value of the subject matter of the dispute is below RS. 500,000. 00
 OFFENCES – As per the Second Schedule of the Act
 Exemptions
 – Third Schedule of the Act
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Mediation Board Areas and Appointment of Mediators

[Sections 4 & 5]
Mediation Board Area

Appointment of Mediation Panel

 First Schedule

Eligibility of Mediators
[Section 5 (2)]

Tenure
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Mediation Board Areas and the Establishment of Mediation

Boards
Minister of Justice (MOJ) publish an Order in the Gazette to specify the Mediation Board Area

Mediation Boards Commission (MBC) publish a Gazette to notify for Nominations from Persons, Organizations and
Government Institutions

Selected candidates will be interviewed by the MBC and MBC will select the eligible candidates as Mediator
Trainees

Selected candidates follow a Comprehensive Five Day Training Program on Mediation and Mediation Techniques
conducted by the MOJ

Mediator Trainees are assessed on aptitude, knowledge and skills at the end of the Training Program and the
Recommendations are made to MBC by MOJ

Establishment of Mediation Boards & the Appointment of Mediators - MBC

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Jurisdiction of Mediation Boards

[Section 6]

Dispute
Movable and Immovable Properties
Contracts

Offence
Second Schedule

Exemptions:
State as party
A public Officer acting on behalf of in relation to recovery of any Property,
Money or other Dues
Proceedings which are instituted by the Attorney General in relation to an
offence.

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Jurisdiction of Mediation Boards

[Section 7]

Actions other than those involving the grant of any

interim relief not to be filed without certificates of Non -
Settlement

1. Dispute
- Rs. 500000/- (Mandatory Provision)

2. Offence
Second Schedule

3. Exemption
Third Schedule

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Referrals to Mediation Boards

Direct Applications

Referrals from Police

➢ Role and responsibilities of the Police

Referrals from Courts

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Introduction and opening statements

• Welcome the Parties
• Introduce Mediation Panel & the
Parties
• Explain the Mediators Role
• Briefly Preview the Process
• Explain, Develop and Record Ground Rules

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PHASE I: Defining the Problem

• Ask each party to tell him or her story to the mediators
• Use active listening to acknowledge and empathize with
each party’s story, perspective and feelings
• Ask questions to help each party “unpack” his or her story

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PHASE II: Helping Parties to Understand

Each Other
• Invite the Parties to ask clarifying questions of each other
• Help the Parties ask questions to clarify each other’s Intent and the
Impact of their conduct on each other
• Identify and record Interests, Needs and Concerns
• Frame and record the Problem(s) as 0pen ended questions

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PHASE III: Helping the Parties

• Acknowledge their new understanding
• Summarize and acknowledge the process so
far
• Find out whether the parties are ready to
seek solutions

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PHASE IV: Helping Parties Develop Solutions

START WITH RELATIONSHIP and/or PROCESS ISSUES
Regarding relationship issues
• Find out what is needed to clean up the past
• Develop and record possible norms for the future
• Reach Consensus on Norms
Regarding process and content issues
• Develop and record options
• Help them evaluate the options against their interests
• Bring them to closure

Put Agreements in Writing

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Mediation Procedures
Receive, Accept and Register the Complaints

Constitution of Mediation Boards & Duties of the Mediators

Invite the Parties for Mediation

Conduct the Mediation Process

Settled – Issue of Settlement Certificate

Not Settled – Issue of Non Settlement Certificate

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Success
Third largest Mediation System in the World
Highly accepted by the Community
Handles nearly 200,000 Disputes annually with approx. 55 % successful resolution rate
Voluntary service, easy access, expeditious, cost effective, confidential process and
amicable settlements

Challenges
Management of large number of Boards and Mediators
Infrastructure and Logistical Support
Regular in-service training and nurturing

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SPECIAL MEDIATION PROGRAMME

 Legal Framework
– Mediation (Special Categories of Disputes) Act – No. 21 of 2003

 The Programme
 Purpose – Amicable Settlement of Social and Economic Issues towards ensuring peace in
community level
 Commenced in 2005
 Functions in as defined by the Gazette Notification
 Tsunami – 09 Mediation Boards (Concluded in 2010)
 Land – 08 Mediation Boards (North and East - Ongoing)
 Migrant Workers (Kurunegala – Being established)

 The Jurisdiction
 As defined by the Minister of Justice by Gazette Notification

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SPECIAL MEDIATION PROGRAMME

Establishment of Special Mediation Boards
❖ Categories should be determined - s2(1)
❖ Need to consider Disputes relating to Social and Economic Issues - s2(2)
❖ Special Mediation Boards Area – s3
❖ Monetary value of the Dispute – s8(1)
❖ Expert Panel
 Selection/Nomination of Expert

 Appointment/Establishment Process

 Duties and Functions

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MEDIATION PROCEDURES
Receive, Accept and Register the Complaints

Constitution of Mediation Boards & Duties of the Mediators

Invite the Parties for Mediation

Conduct the Mediation Process

Settled – Issue of Settlement Certificate

Not Settled – Issue of Non-Settlement Certificate

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WHY MEDIATION COULD BE A OF A DISPUTE RESOLUTION

PROCESS AS AN ALTERNATIVE TO LITIGATION
➢ Easy Access
➢ Timely Resolution
➢ Confidential
➢ Voluntary Process
➢ Amicable Settlements
➢ Cost Effective
➢ Restoring Relationships and Reconciliation, Empowering
parties to the disputes and Win – Win Situation

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WHY MEDIATION COULD BE A OF A DISPUTE RESOLUTION PROCESS AS AN

ALTERNATIVE TO LITIGATION - The Progress – 01.01.2019 to 31.12.2019 (CMP)
Financial Other
Total Progress
Disputes Disputes
The balance disputes pending on 01.01.2019 28885 12487 41372
Total No. of Disputes received 210674 99887 310551
Grant Total for the year 2019 239559 112364 351923
No. of disputes discussed and settled 58805 50336 109141
No. Disputes that are not settled 24093 22741 46834
Total No. of Disputes discussed 82898 73077 155975
Settlement Rate 70.94 % 68.88 % 69.97 %
No. of disputes that are not settled due to non-participation
116333 26128 142461
of disputants
No. of rejected disputes 4508 1158 5666
No. of disputes withdrawn 10324 1274 11598
Total No. of disputes handled 214063 101637 315700
Total No. disputes pending by 31.12. 2019 25555 10668 36223

The approximate cost to settle a dispute is Rs. 2500/-

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WHY MEDIATION COULD BE A OF A DISPUTE RESOLUTION PROCESS AS AN

ALTERNATIVE TO LITIGATION - The Progress – 01.01.2019 to 31.12.2019 (CMP)

Courts 18275
67.84%
7.50%
Police 55220

Bank and Financial Institutions 210674

1.00%
Direct Complaints 23281 17.78%

Other 3101 5.88%

Total 310551

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WHY MEDIATION COULD BE A OF A DISPUTE RESOLUTION PROCESS AS AN

ALTERNATIVE TO LITIGATION - The Progress – 01.01.2019 to 31.12.2019 (CMP)

Settled and Not Settled Rate

Settled
69.97%

Not
Settled
30.03

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DISCUSSION

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