Litigation and mediation

Justice L K Wimalachandra - Former Judge of the Court of Appeal

Mediator must break the dispute into manageable parts and encourage the parties to settle each part rather than taking on the entire dispute. He must get the parties to agree on the simple issues first and postpone complicated issues to be taken up at a later stage. It is also desirable for the mediator to have private meetings with each party to diffuse tension. Once the parties have agreed on a solution an agreement can be entered

Litigation process causes long delays in resolving a dispute and it can be damaging to future business relations. The legal proceedings have advantages but some parties believe that the ultimate outcome will outweigh these advantages. As a result, alternative dispute resolution mechanisms, mediation in particular, may be a better alternative.

Alternative dispute resolution or ADR is not a new concept in Sri Lanka. In ancient Sri Lanka, highly influenced by the Buddhist philosophy and the concept of justice found in the Buddhist principles, a dispute resolution process was in existence in the villages.

This was mainly a form of mediation, where persons in dispute would bring the dispute before the Chief Buddhist priest of the village temple, who was expected to use his knowledge on Buddhist philosophy and the inflexible law of nature in assisting the parties to find a solution to their dispute. In some instances the dispute was brought before the elders of the village and discussed with them to bring about a settlement. In this respect, the Gamsabhawa or Village Council, which existed in the ancient Sinhalese Kingdom, engaged in the peaceful settlement of minor disputes among villagers.

The Gamsabhawa as existed in the Kandyan Kingdom in its last days is considered to have “...consisted of an assembly of the principal and experienced men of the village who met at an ambalama (a village resting-place for travellers) or a shady tree, or other central place upon the occurrence of any civil or criminal matter, such as dispute regarding limits, debts, petty thefts, quarrels etc and after inquiring into the case, settled it, if possible amicably, by declaring which party was in fault, by adjudging restitution and compensation, or by dismissing with reproof and admonition - their endeavours being directed generally to compromise and not to punishment.”

It can be seen thus, under the aforesaid mechanism, due to its voluntary nature, both parties undertook the responsibility for resolving their own disputes. This ancient system of ADR promoted peace and harmony and facilitated the growth of the economy at the village level bringing the people together, and thereby promoting social stability. As such, alternative mechanisms for dispute resolution are not a new phenomenon, which has been in existence and has flourished for many years in Sri Lanka.

Most developed countries now prefer ADR to court litigation. In recent years, there has been worldwide recognition of the fact that litigation is not necessarily the only, or even the best way of resolving disputes.

Mediation

Mediation is a process where a neutral intermediary, a mediator, initiates a process to assist the parties to arrive at a negotiated settlement. However the mediator has no power to impose a settlement on the parties. The mediator’s aim is to help the parties reach an amicable settlement. Mediation gives an opportunity for the parties to discuss the issues, resolve misunderstandings and find solutions to their disputes. The mediator does not act as a judge to decide rights and wrongs but as a catalyst for better communication and to assist the parties to arrive at an informed and well-considered solution.

It is the duty of the mediator to reassure the parties on their choice of the mediation as an alternative for dispute resolution. He must explain the process and help the parties to develop confidence in achieving success through mediation. The mediator must encourage both parties to acknowledge that they understand each other’s concerns to arrive at an amicable solution.

The impartiality and neutrality of the mediator are prerequisites to mediation. The mediator must show his impartiality by his behaviour at every stage of the mediation process.

An experienced mediator must break the dispute into manageable parts and encourage the parties to settle each part rather than taking on the entire dispute. He must get the parties to agree on the simple issues first and postpone complicated issues to be taken up at a later stage.

It is also desirable for the mediator to have private meetings with each party to diffuse tension. Once the parties have agreed on a solution an agreement can be entered into. The agreement is enforced not through external intervention or compulsion but through the will of the parties as it has been a voluntary process and the solution is theirs and not one imposed upon them by a third party.

Positive aspects of mediation

In litigation, the Judge decides the issues for the parties. In mediation, however the parties make decisions for themselves. People are more likely to comply with decisions reached by themselves as opposed to determinations made by a Judge after trial. A determination made by a Judge requires further legal proceedings such as execution of the decree.

Moreover there is always a possibility that the losing party may appeal against the determination of the Judge to a higher forum. Mediation in this regard has a greater sense of finality as the solution is consented and voluntary rather than being imposed upon the parties.

The mediation process lasts few days and the costs are relatively smaller.

The mediation process is appreciated by Judges mainly for the reason that cases are resolved more quickly and are less likely to require further judicial attention and thus reduces the workload.

Unlike litigation, which often strains the relationship, mediation can help to ensure the continuity of relationship, which is particularly important in the case of a divorced couple who will be co-parenting their children or in a situation where the parties to an important long term commercial transaction attempting to resolve a minor disagreement which arises during the transaction.

To be continued