ALTERNATIVE DISPUTE RESOLUTION

What is ADR ?

ADR or  ‘Alternative Dispute Resolution’ 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. Among the many ADR processes used in Sri Lanka, are Arbitration and Mediation.

Sri Lanka’s initiatives

Sri Lanka’s most recent initiatives have been in relation to  Arbitration and Mediation.

Arbitration

Arbitration has been statutorily recognised for some time in this country. The latest enactment on the subject is the Arbitration Act, No. 11 of 1995 which provides for a regime which recognizes party autonomy devoid of court intervention other than in a few and exceptional circumstances. The enactment of the Arbitration Act was a response to the need for expeditious resolution of commercial disputes.

Mediation

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. [MEDIATION BOARDS ACT, NO. 72 OF 1988].

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^th, 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 Center 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  (the Ceylon Chamber of Commerce, the 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 Minister of Justice. The CMCSL has 34 trained Mediators accredited to the Centre who are available to function as Mediators in respect of commercial disputes referred to the Centre.

            Information regarding the Centre and its activities and programmes may be obtained from its office at the Ceylon Chamber of Commerce building at No. 50 Navam Mawatha, Colombo 02 (telephone 94 –1- 421745  ;  e-mail -  chamber2@sri.lanka.net ; Fax. 94- 1- 449352)

 Employment Mediation

In 1999, concerns that there was a greater need for more stable relationships in the manager/worker environment inspired initiatives which resulted in the formation of the Employment Mediation Services Centre  (EMSC). The Employers Federation of Ceylon gave leadership to a project which was funded by The Asia Foundation. The project which at that time appeared somewhat ambitious given the inherent suspicions in the relationships between employers and workers in disagreement situations, has however had a smooth transition from a mere idea based on a concept to a full blown Association with a mission. The EMSC which was formally established on January 26^th, 2001 has 84 members and functions as a private Mediation Centre comprising a membership of Employers, Workers and others.  The Center has its own Constitution and functions with its Board of Management which includes an equal number of Employers and Workers.  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 Center has trained persons who are available to serve as Mediators when disputes are referred to it. There is also a panel of Trainers who have been trained to impart training to prospective Mediators and to 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 Center which has formulated 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 EMSC is located at 385/J3, Old Kotte Road, Rajagiriya (Tel. 867966; e-mail – thamalis@empfed.lk)