MEDIATION BOARDS ACT, NO. 72 OF 1988

The principal features of the Mediation Boards  Act, No. 72 of 1988 as amended by Act, No. 15 of 1997 are as follows:

Principal objective -

·          The Act provides for the legal framework necessary for institutionalising 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. 

The Mediation Boards Commission -

·          The Mediation Boards Commission (the Commission) consists of five members appointed by the President for a period of three years. Three of the members are required to be from among persons who have held judicial office in the Supreme Court or Court of Appeal (the highest courts in the land), one of whom is appointed as Chairman of the Commission.

·        The Commission is vested with the power of appointing Mediators. It is also vested with powers of dismissal and disciplinary control of Mediators and of supervising and controlling the performance and discharge of the functions and duties of Mediators.

·        The Commission functions as an independent body and the mandatory inclusion therein of persons of the caliber of retired Judges of the Appellate Courts is an attempt to ensure its independence and inspire confidence in its impartiality.

 

 

Mediation

Community Mediation – In 1988, the Mediation Boards Act No. 72 of 1988 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, buy courts. A large number of the disputes handled by the boards related to community disputes. However, Banks have increasingly been referring issues regarding debts as well. (MEDIATION BOARDS ACT NO. 72 OF 1988) Telephone Numbers – 011 2867244, 011 2867246. Address – 428/11, 2^nd floor, Weera Densil Kobbekaduwa Mawatha, Battaramulla.

 

Mediation Special Categories – In 2003, Mediation (Special Categories of Disputes) Act was passed by Parliament. Under this Act a gazette notification was published making provisions with regard to the settlement through Mediation of any dispute relating to debt, damage or demand which has arisen as a result of the Tsunami that occurred on December, 26^th 2004.

 

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 there under 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.

 

The 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, values 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 for from its office at the Ceylon Chamber of Commerce building at No. 50, Nawam Mawatha, Colombo 02. (Telephone 94-1-421745; E-mail – chamber2@Srilanka.net; Fax 94-1-449352)

Panels of Mediators -

• Mediators are appointed to constitute a Panel of Mediators for a defined territorial area.  Its members are persons of the community and it enjoys territorial jurisdiction within its defined administrative area. Each Panel appointed for a Mediation Board Area is required to consist of a minimum of twelve members which may include upto five public officers nominated by the District Secretary for the area.

• A Chairman appointed by the Commission heads every Panel of Mediators.

• Since the commencement of the implementation of the Act (in 1990), Panels of Mediators have been appointed, as at October 1999 to 238 Mediation Board Areas in the country. 

• Mediators function on a purely voluntary capacity and are not paid any remuneration other than a nominal allowance to cover travel expenses.

 

Procedure for appointment of Mediators -

·       The Commission upon nominations made by Organizations of the area, and consequent to a training course makes the appointment of Mediators to Panels.

·        In order to ensure that Mediators are impartial and are free of any political bias, the Act specifies that only Organisations of a non-political character can nominate persons for appointment to Mediation panels.

·        An important aspect of the appointment procedure is that nominated persons are required to undergo a training course in mediation skills and techniques (conducted by Mediator Trainers) at which the aptitude of the nominees is assessed. The Commission appoints as Mediators only such persons as are reported to possess the required aptitude, skills and techniques.

·         In implementing the Mediation Boards Act, much emphasis is placed on the training of Mediators and of Mediator Trainers.

·          There are 5,475 trained Mediators functioning in the Country as at October 1999.

 

Mediator Trainers -

·          There is a permanent cadre of Mediator Trainers in the Ministry of Justice.  These officers   are given periodical refresher courses and are required to conduct training courses for Mediators throughout the island on a regular basis.  It is firmly believed that training in the skills and techniques of mediation is of the essence if mediation efforts are to achieve results.  Mediator Trainers are only engaged in the task of training and do not mediate in any disputes, which are referred to Panels of Mediators.

 

Disputes which can be referred to mediation -

·          The Act seeks to distinguish between disputes which must mandatorily be referred for Mediation (prior to the filing of any action in respect of such dispute, in Court) and other disputes which may voluntarily be referred for Mediation by the choice of the parties.  There is also provision for disputes to be referred for mediation by  Court.

·          The significance of recognizing certain disputes and offences as being matters which must be mandatorily submitted for mediation is that no action can be filed in court in respect of any such dispute or offence unless an attempt has  first been made to settle such dispute or offence by mediation. It is only if settlement by Mediation is not possible that an action relating to such a dispute or offence can be entertained by a Court. Where settlement is not possible, the Mediation Board will issue a ‘certificate of non-settlement’ which must be produced to Court.

·          The mandatory category is limited to certain civil disputes and certain offences.

The civil disputes are those relating to movable or immovable property or a debt, damage or demand which does not exceed Rs. 25,000/= unless it gives rise to a cause of action which is exempted[1].  

The offences that are required to be mandatorily referred to Mediation are also set out in the Act[2].

            The intention is to divert such matters away from Courts, for settlement if possible in an atmosphere which is both free of the fetters and rigors of court procedure and which is conducive to the amicable settlement of disputes the nature of which does not justify the applicability of  technical legal concepts.

·          However, there is no bar to the seeking of any provisional remedy from Court in an action is respect of a dispute which belongs to the mandatory category referred to above.  In such an instance, the Court may entertain and determine the action in so far as it relates only to the grant of the provisional remedy and is required thereafter to refer the substantial dispute for mediation.

·          Any dispute which does not belong to the mandatory category may be submitted for mediation voluntarily subject to the bar against the submission of certain matters which cannot be referred for mediation even with the consent of the parties. These are matters where one of the disputants is the State; or where the dispute relates to the recovery of any property, money or other dues on behalf of the State; or where the Attorney General has instituted proceedings for any offence.

·          In addition, a Court is empowered to refer a dispute in respect of which an action has been filed in that Court, to a Mediation Board, with the written consent of the parties. 

 

Mediation proceedings -

·          Upon an application being made to a Panel of Mediators to settle a dispute arising within its area, the dispute is referred to a Board, which consists of three members of the Panel constituted according to the preferences of the disputants. The Board may either be a pre-constituted one selected by the disputants or its members may be individually selected according to the choice of the parties from amongst Panel members.

·          Upon the reference of a dispute to a Board, the Board is required  “by all lawful means to endeavor to bring the disputants to an amicable settlement and to remove, with their consent and wherever practicable, the real cause of grievance between them so as to prevent a recurrence of the dispute, or offence …”[3]. For this purpose the Board is empowered to notify the disputants and any others considered necessary to be present at a mediation conference either individually or together. Disputants attend such a conference of their own choice and there is no provision to compel attendance.

·        The Mediation Boards function in an atmosphere which is entirely informal.  There are no regulated procedures or technical requirements to be complied with at any of the mediation conferences and these may be convened on as many occasions as the Board may consider necessary subject to the statutory time limit for the completion of proceedings.

·       Appearance of an Attorney-at-Law, agent or other person is NOT permitted on behalf of a disputant at a mediation conference. However, representation of one spouse by another and of a minor or other disabled person by a parent, guardian or curator is permitted.

·       In order to ensure speedy completion of the Mediation procedures, the Act requires a Mediation Board to complete its proceedings, in the case of a civil dispute, within sixty (60) days and in the case of an offence, within thirty (30) days of the constitution of the Board.

·        Where after a successful Mediation, the disputants agree to a settlement, copies of the written terms of the settlement are issued to the disputing parties. Where the dispute is one, which is referred by Court, the settlement is forwarded to the Court.

·        The settlement arrived at by the disputants (unless it is one which is referred for Mediation by Court) is not enforceable in a court of law.  A breach of the settlement entitles the aggrieved party to seek recourse from the Mediation Board once again or to obtain a certificate of non-settlement, which would enable him to file action in court.

Where however, the settlement is in respect of a dispute referred for mediation by Court, on receipt by Court of the written settlement from the Mediation Board, a decree is required to be entered in accordance with the settlement. Such a decree would then be enforceable in Court as any other decree entered by a court of law.

·         Where a settlement is not possible, the Board is required to issue a ‘certificate of non-settlement’ stating that it has not been possible to settle such dispute or offence by Mediation and stating therein the reason for non-settlement. 

            Where settlement is not possible due to the failure of one of the disputants to be present at the mediation conference, the certificate of non-settlement is required to state that fact naming the non-participating disputant therein.

·          The Act assures to persons who make statements before a Mediation Board the same privileges, in respect of such statements, as are accorded to witnesses who give evidence before a court of  law.

·          There is a statutory safeguard against the admissibility in a court of law of statements made by persons before a Mediation Board. The Act states that such statements shall not be admissible in evidence in any civil or criminal proceedings.