By Dhara Wijayatilake
The value of the adjudicatory process as a meaningful method of resolving disputes is under serious challenge. The disenchantment with the process is an almost global phenomenon which has inspired a universal search for improved and more meaningful methods. The challenge to improve the system then, is a serious one.

In attempting to improve the system to make it more meaningful, what is required is not a mere quantity control effort aimed at avoiding a case load explosion. What is required is also an attempt to improve the quality of justice. This would essentially mean an avoidance of the stress of litigation, a reduction of expense, the elimination of delays, greater accessibility, better awareness of what is happening and an appreciation of why it must happen, greater confidence in the system and the process and finally an acceptance of the end result as being just.

In recent times there has been some focus on improving the system by channelling disputes to non-adjudicative forums for resolution through alternative methods. The current widespread interest in looking at alternative methods of resolving disputes is because of its perceived potential to overcome some of the iniquities of the traditional (adjudicatory) system. In many advanced jurisdictions the Alternative Dispute Resolution (ADR) movement is fast gaining headway as the better way, or has already done so. However, even ADR’s greatest proponents will concede that the adjudicatory process still has its value in the resolution of certain categories of cases and issues.

In Sri Lanka several initiatives have been taken towards institutionalizing ADR processes through the introduction of conciliation, mediation and arbitration. Recent initiatives have focused on the use of mediation for the resolution of community disputes, employment disputes and commercial disputes.

This article seeks to focus on some of these initiatives and the key features of mediation. What is ADR? It is important to focus on what ADR means and what it is that provokes excitement as an efficient alternative. ADR is basically a reference to all the ‘other’ processes that are available for the resolution of disputes other than the adjudicatory/litigation process.

The basic feature of adjudication/litigation is that it is ‘adversarial’ in nature. Alternatives are necessarily more ‘settlement’ oriented. And it is this feature that makes it valuable as a more acceptable process and it is also this feature that forms the basis for its greatest critics. In the final analysis it is the level of ‘user satisfaction’ that will determine its acceptance as an effective process and not any of the academic analysis based on what should be sought and achieved by those who access the administration of justice processes.

Among the many ADR processes are arbitration, mediation, conciliation and negotiation to name but a few that are known in this country. Mediation as we know it today, is a non-litigative process which is managed by a neutral third party intervenient called a mediator. The process is structured systematically and is disciplined. While there are key principles and key elements which define the concept, there are no rigid rules except those which are adopted by the disputing parties. The mediator manages the structured process in such a way that the disputing parties are empowered through that process to identify the real issues and search for solutions. Finally the disputants take their own decisions regarding the outcome and enforcement is by the will of the parties. There are some distinguishing characteristics of mediation.

Firstly, it is a forward looking process which does not seek to determine guilt, innocence, right or wrong and thereby negates a focus on the past. Rather, it has a future focus and seeks to evolve solutions for future conduct. Secondly, it focuses on commonalities and mutuality as between disputing parties rather than emphasising differences. And finally, in the ‘Interest Based Mediation’ (IBM) approach, the process does not at any stage permit the assumption of positions by parties. What is encouraged is the identification of interests and needs.

While in a position based approach, parties determine the issues of the conflict, they assume a position, they become emotionally attached to their position and engage in finding evidence to support that stand, all of which adds up to being confrontational or adversarial, in mediation which adopts the interest based approach the focus is on identifying interests by taking the parties to the beginning of the conflict, evaluating information as opposed to perceptions, assumptions and conclusions based upon them, and in indulging in a creative search for solutions, together. The Employment Mediation Services Centre (EMSC) and the Commercial Mediation Centre of Sri Lanka (CMCSL) follow the IBM approach.

Benefits of Mediation

Mediation has the potential not only to resolve disputes but also to avoid them. This, in my view is the most important benefit that mediation offers.

Resolution of community, commercial and employment disputes through mediation enables disputing parties not only to find their own solutions to the problems but also to continue relationships that would have otherwise been scarred and ruined through an adversarial approach. Resorting to mediation does not have any adverse effects in terms of losing the right to pursue other dispute resolution processes because, if mediation does fail, parties would still have the right to pursue those other processes.

The relevant laws recognize that the prescriptive period does not run while parties are engaged in Mediation Section 17 of the Mediation Boards Act No. 72 of 1998; Section 16 of the Commercial Mediation Centre Act of Sri Lanka Act, No. 44 of 2000.

Accessibility to Mediation services is assured and the process is easily initiated. Mediation is inexpensive. Mediation research indicates that reasons for high satisfaction with mediation include the facts that the process enables parties to address and deal with issues that they themselves have identified as important; allows them to present their views fully and gives them a sense of being heard; and helps parties to better understand each other.

In summary, it seeks to eliminate all the weaknesses of the adversarial process which cause us to look for alternatives.

Sri Lanka’s initiatives Community Mediation

In 1998, the Mediation Boards Act No. 72 of 1998 was passed by Parliament. The Act provides for the legal framework for institutionalizing Mediation Boards, which are empowered to resolve by the process of mediation, all disputes referred to it by disputing parties as well as in certain instances, by courts. A large number of the disputes handled by the Boards relate to community disputes. However, Banks have increasingly been referring issues regarding debts as well.

Currently, there are 5,868 mediators functioning in 242 mediation boards in the island. The total number of disputes in respect of which mediation has been attempted from the inception (in April 1990) to September, 2001 is 895,532. Of these 545,727 are reported to have been successfully settled. The settlement rate as at September 2001 is 59.1% Source of all statistics relating to Mediation Boards? Mediation Boards Commission. While it cannot be stated with certainty that successful settlements have resulted in weaning these issues away from courts of law it can be said that these settlements have very definitely contributed to the creation of an environment of peace in the community.

Employment mediation

In 1999, concerns that there was a greater need for more stable relationships in the manager/worker environment inspired the initiatives which resulted in the formation of the EMSC. The EMSC which was formally established on January 26, 2001 has 84 members and functions as a private mediation centre comprising a membership of employers, workers and others.

The Centre has its own constitution and functions with its Board of Management which includes an equal number of employers and workers. The EMSC is located at Rajagiriya. The bi-partisan nature of the ‘boards’ composition and the membership of the ‘association’ gives an assurance that neither category has an undue advantage. The Centre has trained persons who are available to serve as mediators when disputes are referred to it. There is also a panel of trainers who are trained to impart training to prospective mediators and also conduct training in the interest based mediation/negotiation methods.

Many training courses have been conducted by these persons at Enterprise level, on request.

Any employment dispute may be referred to the centre which has its own rules in terms of which mediation sessions are conducted. Key features of the process are that it assures complete confidentiality and is purely voluntary in nature.

The Labour legislation of Sri Lanka also provides for the resolution of labour disputes by reference to Arbitration, Conciliation and out of court settlement mechanisms. Industrial Disputes Act, No. 43 of 1950 as amended.

There is however an acute need to enhance the efficacy of these mechanisms by focused training of arbitrators and conciliators and the simplification of settlement procedures. The Industrial Disputes Act and the regulations made thereunder specify the scope and ambit of the powers of an arbitral tribunal, and the applicable procedure. An important requirement of labour arbitration is that the award must be one which appears to the tribunal to be just and equitable.

Commercial mediation

The concept of Mediation has also been institutionalized through the Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000. The Commercial Mediation Centre of Sri Lanka (CMCSL) established thereunder was launched on September 12, 2000 and is statutorily mandated to promote the wider acceptance of mediation and conciliation for the resolution and settlement of commercial disputes; to encourage parties to resolve commercial disputes by mediation and conciliation and to conduct the settlement of commercial disputes by mediation and conciliation.

The Centre has formulated its own rules in terms of which mediation sessions are required to be conducted and in respect of the fees payable. There is also a code of conduct for the mediators. This ADR initiative was taken at the request of the private sector community which expressed a dire need for a more expeditious and efficient dispute resolution mechanism in relation to commercial matters.

The establishment of this Centre was a response to that need which calls for both efficacy, value and speed. Although the passage of the Law was initiated by government, the intention is that the effort should be ‘owned’ by the private sector. This thinking is reflected in the composition of the Board of Management which comprises representatives of the four Chambers of Commerce (Ceylon Chamber of Commerce, National Chamber of Commerce, Federation of Chambers of Commerce and Industry of Sri Lanka and the Ceylon National Chamber of Industries) and one nominee of the Justice Minister.

The CMCSL is located at the Ceylon Chamber of Commerce Building, Navam Mawatha, Colombo. There are 34 trained mediators accredited to the Centre who are available to function as mediators in respect of commercial disputes referred to the Centre.

How do the Commercial Mediation Centre and the Employment Mediation Services Centre function?

Rules of the Centre: Both the Commercial Mediation Centre of Sri Lanka (CMCS) and the Employment Mediation Services Centre (EMSC) have formulated rules in terms of which mediations are conducted by each Centre. These rules provide for the procedure to be observed in conducting mediations, the fees to be levied, and the code of conduct for mediators. The procedure is simple and easy accessibility is assured. Fees are payable according to specified rates and are extremely reasonable.

Accessing the Centre: An application for mediation can be initiated by any one party to the dispute or by all the disputing parties. The Application is in a simple format and requires only that the names and contact details of the parties be given along with a brief summary of the subject matter in dispute. If there is no agreement between the parties that mediation be resorted to, the Centre will talk to the reluctant party with a view to obtaining consent to pursue mediation. Where all the parties agree to pursue mediation, an agreement to mediate is entered into, by which the parties agree to abide by the rules of the Centre and such other rules as may be mutually agreed upon by them in the conduct of the Mediation.

Rules applicable to the conduct of Mediations : The Rules in terms of which mediations are conducted and to which the parties subscribe prior to the commencement of the mediation process, provide for some basic norms.

Confidentiality with regard to what goes on in the mediation sessions is of the essence. Thus, parties are mandated to maintain complete confidentiality with regard to all matters that are discussed during the mediation sessions and are prohibited from revealing such information in litigation, arbitration or other dispute resolution process. This is an important feature of the mediation process and is perhaps a feature which inspires confidence in the process.

Parties are required to attend the sessions in person and no legal representation is permitted. The sessions are private. Parties are required to disclose fully and honestly all matters which are relevant and which will aid the speedy resolution of the dispute. In this manner, the core issues and concerns which form the basis of the dispute can be surfaced and dealt with. Non-disclosure of material facts will only result in either an unsuccessful Mediation or a settlement which will not deal fully with relevant issues. There is then the potential of a further dispute arising at a subsequent time.

The mediator may at any time during the process, opt to have sessions with just one party at a time (a step known as "caucussing"). A majority of the sessions are those at which both parties will be required to be present together, because it is of the essence that the final solutions be worked out with all disputing parties working together.

Where expert advice on technical aspects of the issues are necessary, the mediator may, with the concurrence of the parties, call in expert assistance.

The Mediator: The Rules of the CMCSL provides for the appointment of one mediator for a dispute. The Rules of the EMSC provide for the appointment of one to three mediators. The mediator is essentially a non-partisan third party intervenient.

No person who has an interest in the subject matter of the dispute or of its end result can serve as a mediator. This is an important rule which is strictly complied with.

Mediators are required to maintain complete confidentiality in respect of all matters coming to their knowledge during the mediation process from any source whatsoever. Mediators cannot be compelled by any of the parties to divulge such matters to any authority whatsoever. This precludes parties from seeking to make use of mediators as witnesses to any fact at any other dispute resolution process.

The role of the mediator is to help parties resolve their concerns by taking them through the process which will focus on the key elements discussed above. The mediator does not decide for the parties or sit in judgment over the issues that surface. The Mediator is however the master of and controls, the process.

Conclusion

The corporate world, disgruntled as they are with the traditional methods, is demanding better and more efficient mechanisms. The challenge to contain the forces that contribute to delays and other factors which produce dissatisfaction needs to be met with creative reforms. There is no doubt that the dispute resolution landscape needs to change in this country. The use of ADR in appropriate situations may be one of them. (Ceylon Chamber of Commerce press release)