Legal Aid Commission

ADR-future of Sri Lanka?

Observations

As we have already seen, Sri Lanka had an ADR based dispute resolution system since prehistoric times. Though the percentage of success is not known we can assume the system could have been quite successful, for it to not replace by an alternative dispute resolution system till the arrival of the Dutch. Should Sri Lanka take a leaf from these examples and go back to its roots of using ADR in a more predominate manner? Should more legislation like the present “Mediation Boards Act of 1988” be passed?

I personally think it would be a good idea for the Government to invest more on the development of arbitration and other ADR mechanisms within the country. I believe in the same manner “the Mediation Boards Act” has proven successful in cutting down the rate of litigation within the country, future laws which ensures compulsory use of arbitration and ADR mechanisms before resorting to litigation would ensure the litigation rates are kept low and litigation is only used when absolutely necessary. This would automatically result in the deliverance from the present dilemma facing our legal system.

I also think it would benefit Sri Lanka as a nation to invest on developing ADR centers and encourage arbitration laws to grow in an internationally friendly manner within the country. Arbitration is considered the “Future” of dispute settlement and its drastic growth in Europe and south East Asia at the last decade is a testimonial of its importance. Successful establishment and promotion of arbitration centres in Hong Kong, Singapore and Malaysia has resulted in direct increase in foreign investment within these countries. Would it not be wise for us to follow their example and develop our legal system and country in a progressive manner?

For as Judge Learned Hand stated in the 1921 “The Deficiencies of Trials to Reach the Heart of the Matter,” address to the Association of the Bar of the City of New York,

“The price we pay for (unrestrained advocacy), the atmosphere of contention over trifles, the unwillingness to concede what ought to be conceded, and to proceed to the things which matter. Courts have fallen out of repute; many of you avoid them whenever you can, and rightly. About trial hangs a suspicion of trickery and a sense of result depending upon cajolery or worse. I wish I could say that it was all unmerited.

After now some dozen years of experience, I must say that as a litigant I should dread a law suit beyond almost anything else short of sickness and death.”

Maybe it is time for us to move away from litigation.

Pavithra Ganesaratnam holds a LLM in “International dispute settlement” specializing in Arbitration and ADR methods from the University of Geneva law school and the Graduate Institute of Intenational and Development Studies, Switzerland. She completed her LLB at the University of Warwick and LPC (Solicitors) at the BPP Law School London, United Kingdom.

Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflicts or disputes in an informal and confidential manner. It presently includes arbitration, mediation, negotiation, adjudication and conciliation.

ADR provides alternatives to litigation and is generally voluntary. It enables the participating parties to develop mutually acceptable solutions that can meet their needs. Modern ADR uses neutral third party/parties to help the parties communicate, develop ideas and resolve the dispute.

Reasons why ADR is better than litigation includes the fact that, it is faster, less costly, easier, has less formality involved, is less adversarial, encourages creativity, gives practical solutions and avoids the unpredictability involved in litigation.

The ADR process usually results in improved communications between disputing parties and is better for ongoing relationships. Solutions tend to be durable or long lasting since they have the “buy in” of all parties involved. Further publicity is avoided and most importantly, the parties retain control of the outcome.

The most common form of ADR practiced around the world is arbitration and mediation. Arbitration is confidential dispute resolution process where the parties to a dispute refer it to one or more persons (the “arbitrators”) who then give a binding solution for the dispute. Arbitrators are chosen by the parties and the location, the law and the manner in which the arbitration is conducted are also decided by the parties. The arbitration decisions are binding and thanks to the New York convention arbitrarily awards can be enforced in any country in the world making it easier to enforce than litigation decisions.

Mediation in the other hand provides an opportunity to resolve disputes with an impartial middle man who helps identify and communicate the interests of the parties, identify mutual interests, and manage expectations.

The mediator does not impose a decision for the parties, but assists the parties in reaching their own mutually acceptable resolution. It is especially useful in situations where communication has broken down or emotions are intense.

Like arbitration, mediation process is confidential and confidentiality of the information discussed during the mediation is protected by statute. But in mediation the decision is not binding (unless parties sign a contract) which results in the enforcement of the decision impossible.

But that said the use of Arbitration and Mediation has seen phenomenal success in jurisdictions that have given them a try. For example in the United States state of California 95 percent of all civil cases filed in court are resolved without going to trial.

The parties are encouraged to try one the Alternative Dispute Resolution methods available and this results in 95 percent find solutions to their disputes. It is believed that party autonomy and the fact that ADR encourages a win-win situation is the reason for the high success and satisfaction ratings.

Hong Kong in the last decade has encouraged pre trial mediation and seen a success rate of around 80 percent tallying with internationally cited norm. Majority of the people who mediate in Hong Kong don’t appeal the decision and are said to feel more satisfied and happy with the decision reached. This could directly explain the reason why mediation decisions have a high compliance rate.

The World Intellectual Property Organization is another forum where alternative dispute resolution has seen great success. WIPO administers international IP registration systems and provides a repository of IP expertise to assist its members. Its arbitration and mediation centre has seen phenomenal success in solving IP related disputes using arbitration. Party autonomy, time, cost, decisions being binding on parties, possibility of enforcement in courts in case of non-compliance are all said to be contributed for the high success rate of WIPO dispute settlement.

In the United Kingdom many construction contracts use mediation to resolve disputes between them. It is unsurprising again that figures show there has been a high rate of success as parties are more likely to comply with the decision. Parties are also said to have more personal satisfaction and less stress levels than when they resort to litigation.

In China ADR is not considered “alternative”, but mainstream dispute resolution mechanism. Since ancient time the Chinese have been very ADR friendly as it is seen as a natural extension of Confucian ethics and thus has a long-standing position in Chinese tradition. Prof. Regina Abrami of Harvard Business School observed,

“The people of Chengdu, similar to Chinese elsewhere, are leery of courts as a mechanism of dispute resolution. Instead, they often turned to teahouses where individuals of status could informally hear the cases of conflicting parties and make a judgment. The two parties then enjoyed ‘settlement tea’ (ci jiangcha) to symbolize their agreement to the ‘ruling.’”

In the last decade China has put major emphasis on the development of arbitration seeing it as a door to door participate in world economy, promoting Chinese interests and long-term international relations.

This has resulted in the growth of arbitration centers in China such as the Chinese European Arbitration Centre, China International Economic and trade Arbitration Commission and the Hong Kong International Arbitration Centre to name a few.

The above-mentioned examples show that the use of ADR has seen a high success in various settings be it countries, organizations or federal jurisdictions. Sri Lanka also has seen success while using the compulsory and voluntary mediation provisions in the “Mediation Boards Act (No 72 of 1988)”. D.Wijayatilake has reported that between 1990 and 1999, 631,831 mediations took place under the “Mediation Boards Act of 1988”. Of those, 395,268 resulted in a settlement: a settlement rate of 62.6 per cent. Since 1988 the success rates are said to have arisen.

BASL programs

The Bar Association has embarked on a very challenging program of work to ensure that we achieve our objectives of serving the interests of the lawyers and that of the country. One of the primary goals of the Bar Association is to safeguard and secure Human Rights and to contribute our resources to the effective implementation of the Constitutional provisions relating to Fundamental Rights.

We have also to secure the independence of the Bar and that of the Judiciary and to make both bodies strong to stand up for Justice.

As I have stated earlier the need to act independently and with robustness, is deeply ingrained in our work ethic and our value systems, which we hold dear in the practice of our profession.

It is also my desire that we should as a professional body infuse our membership with a new vigour, a new vision, a fresh enthusiasm to re-tool and reorganize ourselves to serve our clients better.

We shall make every effort to enthrone the Rule of Law and due process, without which our role and that of the judiciary, is meaningless. The Bar Association will also as a priority seek to engage actively with the judiciary to make the delivery of justice faster whilst retaining its credibility.

The course of de-centralizing justice, which we have undertaken in the recent past should be further pursued and strengthened, with more training and better libraries made available to those involved in the dispensation of justice.

We believe that this country is now poised to achieve higher growth rates in the post conflict scenario. To this we are rapidly embarking on a structured fast track process to upgrade training mechanisms in corporate law and other connected areas so that our lawyers are better equipped to handle the new work consequent to this. We are also negotiating with Lawasia, the primary group of lawyers in the Asia-Pacific region to host their prestigious Business Law Conference in Sri Lanka in January 2011.

In other areas of law, particularly Human Rights and civil liberties, we will continue with added vigour the Legal training programs for the Bars in the entire country with some special programs for the lawyers practicing in the Northern and Eastern parts. Another important goal is to achieve greater computer literacy among our members and to expand the IT base serving lawyers so that benefits of the new technologies are made available to them. We have many other plans in the pipeline which we are working on and we seek the cooperation of our members and well wishers to achieve them.

Shibly Aziz PC Bar Association of Sri Lanka President

Diploma course in mediation

Target groups: Professionals, General public with an interest in Mediation, Those aspiring to be trained as Mediators or to have a career in alternative dispute resolution, Law students, governmental or administrative officials and executives of the private sector who can use Mediation techniques in the workplace.

Admission criteria:

(a) A degree or a professional qualification equivalent to a degree, or

(b) Any professional qualification such as Attorney at Law, CIMA, CIM etc, or

(c) An undergraduate of any local University in Sri Lanka, or

(d) Passed all subjects at GCE A-L’s and minimum three years work experience.

Medium: The Diploma will be conducted in both English and Sinhala languages.

Application forms are available in both languages. Prospective students are expected to complete the Application Form of the language they chose to follow the Diploma.

Duration: 5 months

Registration procedure: Application forms can be downloaded from www.adrisrilanka.org or collected from ADRI at the following address.

Duly completed Application Forms should be sent through registered post or hand delivered to; ADRI, No.61, 1st Floor, Carmel Road, Colombo 3

Along with:

(a) Copies of the academic or professional certificates

(b) A copy of the Birth Certificate, and

(c) A copy of the NIC.

For further details please contact 0776167115 / 0112438478 or visit our website at www.adrisrilanka.org for more details.

Questions and Answers

Consumer protection

Question: I found a strange object in a bottle of soft-drink. When I showed that bottle to the merchant he refused to give me a new bottle or refund me the cash. Being a consumer is there any legal solution. Please advise me.

Answer: You must have a receipt of the goods which you bought and a sample of the goods.

Basically you can visit the Consumer Protection Authority and make a complaint to the legal division. They will hold an inquiry against the trader. Most probably after the inquiry both parties may come to a settlement. If both parties are not agreeable for a settlement the Consumer Protection Authority can file a case in the relevant Magistrate’s Court.

Telephone No (Complaint Section) 0112321696.

Permits issued by the CCD

Question: I came to know through your Legal Aid Page last week that there are two types of permits issued by the Coast Conservation Department (CCD) before initiating any development activities in the coastal zone.

Could you kindly explain the activities that come under the respective permits? Your kind reply would be greatly appreciated.

Fernando, Malabe.

Answer: The two types of permits that are issued by the Coast Conservation Department (CCD)for development activities within the coastal zone are -

(a) Major Permit. This permit is issued by the Director Coast Conservation Department.

(b) Minor Permit. This is issued by the Divisional Secretary on behalf of the Director, Coast Conservation Department.

It is necessary to obtain a Major Permit issued by the Director of Coast Conservation for the following development activities in the coastal zone.

A Major Permit is required for the following activities:

* Dwelling houses and related structures of total floor area 1,000 sq ft (93 sqm) or more

* Tourism, commercial and industrial structures

* Recreational/sports structures

* Harbour structures and navigational channels

* Roads, bridges and railway lines

* Public and religious structures

* Shoreline protection works

* Sewage treatment facilities and ocean outfalls

* Aquaculture facilities

* Waste water discharge facilities

* Disposal of solid wastes

* Dredging, filling landscaping and grading

* Removal of sand, sea shells or vegetation

* Mining and reclamation

* Removal of corals for research

* Breaching of sand bars

* Reclamation

* Installation of oil, air, water pipes and electricity lines

* Any other development activity that will alter the physical nature of the coastal zone.

For Minor permits such as construction of small houses, removal of small quantity of sand you must consult Divisional Secretary of your area before commencement of such activities.

A Minor Permit is issued by the Divisional Secretary for the following activities:

* Dwelling houses and related structures of total floor area less than 1000 sq. feet (93 sq.m)

* Small scale commercial structures total floor area less than 350 sq. feet (32.5 sq.m)

* Removal of sand up to two cubes from locations specified by the CCD.

* Removal of sand bars to prevent floods

All public works within the coastal zone are subject to CCD permit procedure. Hence Public Institutions must consult CCD prior to commencing the development activities.

Encroachment of State land

Question: Please let me know if it is an offence to encroach a State land? I am aware that most people, who do not have any land, try to encroach the State lands. Is this possible? I await your kind answer.

Vipulasena, Hingurakgoda.

Answer: It is an offence to encroach State lands. If the said land is reserved for future needs, the ownership of the same will not be given to anyone. The lands reserved for rivers, channels, streams, roads, reservation of the water sources demarcated State forest, sanctuaries, parks and reservoirs should be considered as the lands reserved for the public purposes. In such event, the ownership of the same land cannot be given to people and they have to quit the land concerned.

In case any person or their family members does not own any land for residential purpose, they have to meet Divisional Secretary or Deputy Land Commissioner (inter province) in the Division that they reside could ask for a portion from the State lands. The Divisional Secretary will take prompt action to attend to their request and preference will be given to those people who are not in possession of any land, neither occupation nor cultivation. Otherwise encroaching of State land is an offence under the law.

Rights and obligations of condominium owners

Question: I own an apartment in Colombo and would like to know the rights and obligations of condominium owners.

Siriwardena, Marawila.

Answer: Condominium living requires adherence to By-laws and above all, recognition of the right of a fellow condominium dweller for peaceful and quiet enjoyment of his or her condominium property.

Since condominium dwellers share walls, floors, entrances, ceilings, corridors, parking areas and other common areas, noise and smoke especially can be a nuisance to fellow condominium dwellers. A condominium owner should respect the need of the others living in the same building for peace and quiet just as much as he or she needs a quiet and peaceful environment.

Inconsiderate neighbour will make condominium living an unpleasant experience unless the Management Corporation formulates rules and enforces them without fear and favour to ensure a harmonious and pleasant environment. A condominium dweller must however, appreciate that a certain degree of noise cannot be avoided, especially in an environment where there are children. A condominium owner is prohibited from -

a. using his/her unit for any purpose which may be injurious to the reputation of the building,

b. use as fuel any substances or material which may give rise to smoke or fumes or obnoxious smells.

c. make any alterations to his condominiums parcel contrary to the approved building plan of the Condominium Property or Semi Condominium Property.

d. throw or allow to fall any refuse or rubbish of any description on the common elements or any part thereof except in refuse bins maintained by the owner or in refuse chutes provided in the building, or

e. keep any animal on his/her unit or the common elements which may cause annoyance to any other owner.

A condominium owner should observe and comply with the above by-laws:

Gratuity for interrupted service?

Question: I was employed in the capacity of a Production Manager in a Garment Factory in the IPZ for four years from 2000 to 2004. I resigned in December 2004 to go abroad. I returned to the island in 2006 April and joined the same Company as Production Manager. I now intend to migrate to Australia.

Please advice me whether I could take the four years of employment from 2000 to 2004 for the purpose of computing the gratuity under the Payment of Gratuity Act No. 12 of 1983?

Balasuriya, Borella.

Answer: The answer to the question is ‘No’. The word “completed service” has been defined in the Act to mean - “uninterrupted service and includes service which is interrupted by approved leave on any grounds whatsoever, a strike or lockout or cessation of work not due to any fault of the workman concerned whether such uninterrupted on interrupted service was rendered before or after the coming into operation of the Act”.

Since there is an interruption in your employment, you will not be able to include the first four years of employment for the purpose of computing gratuity. If your employer in your new contract of employment has stated that your first four years of employment with the Company before resignation would be taken into consideration for purposes of computing your gratuity, you will have the right to claim gratuity for the 1st four years as well.

Relief for domestic servants

Question: Can domestic servants seek relief from Labour Tribunal for termination of employment? Your reply is solicited.

Somalatha, Kadawatha.

Answer: Yes. The Judgement of Supreme Court in Wijedeera vs Baby Hamy 74 NL 838 explains this.