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De-mystifying mediation for dispute resolution – II

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(Continued from yesterday)

Reference by courts to mediation is a universally accepted phenomenon. In the recent Churchill case (November 2024), the UK Court of Appeal determined that the courts of England and Wales can lawfully stay proceedings and or order the parties to engage in non-court-based dispute resolution processes which includes mediation, provided that order does not impair the essence of the claimants right to a fair trial, is made in pursuit of a legitimate claim, and is proportionate to achieving that legitimate claim.

The mediation process is informal, structured, non-adversarial and disciplined. The Bill sets out how a mediation can be initiated in different circumstances, ie. when there is a mediation agreement and also when parties agree to mediate after a dispute arises even without a prior mediation agreement. The concept of the ‘Mediation Service Provider’ (MSP) is recognised. An MSP is an important player in the process because it is the MSP that provides administrative support. An MSP can be a single individual or an entity. The obligations of an MSP are provided for in the Bill itself to ensure that important global standards are complied with. This provision is one of those that seeks to ensure that internationally accepted standards are complied with.

Disputants must engage directly and voluntarily in good faith

and must be present at the mediation sessions. The good faith principle is important to ensure that disputants are sincerely committed to a settlement and must provide full disclosure of matters that are relevant to a sustainable solution. The process ensures party autonomy which means that the parties take all decisions regarding the settlement or the refusal to settle. The process has no focus on adjudication of legal rightsand wrongs and has a focus on assisting parties to identify and satisfy their concerns.

Legal representation is not essential but Lawyers and other professionals (Engineers, Doctors, Architects, Family Counselors, Surveyors, Actuaries) can attend the sessions to assist the disputants and advise on settlements. Lawyers do have a role in mediation and must engage as strategic partners. Globally, Lawyers are trained in mediation advocacy to equip them with the skills necessary to perform a niche role in mediations, which role is very different to the one Lawyers assume in an adversarial process.

The Mediator must be independent, impartial and have no conflict of interest. Professional Mediators are trained in the core skills and techniques that are relevant to assist parties to better understand their concerns, to communicate effectively and to identify creative solutions that satisfy their concerns. The Mediator functions as a Communicator, a Negotiator, and a Manager. These roles require specific skills and hence specialized training is of the essence as in any other profession.

Confidentiality must be maintained by all parties and by the Mediator with regard to matters discussed and submissions made during the mediation. The without prejudice rule also applies and serves to assure to the disputants the space to discuss matters freely and creatively without fear that thoughts generated and solutions suggested at the mediation sessions will be used against them as a surrender of rights or an admission of a position, in the event that any other dispute resolution process is pursued thereafter.

Where a settlement is reached, the terms and conditions are incorporated in a Settlement Agreement and signed by the parties. Such an agreement has the same sanctity as any other agreement entered into by parties and is valid in law and enforceable in a court of law. If a settlement is not reached, a certificate of non-settlement is issued to the parties. Although a decree of court is not necessary to provide validity to the agreement, if a party desires to obtain a decree based on the terms of the settlement, an application may be made to the High Court. The Bill provides of the procedure to be followed to obtain a decree and includes provisions to ensure speedy disposal of such applications. Grounds for refusal to grant a decree are included and adopt some of the UN Convention grounds. These include incapacity of a signatory, Mediator malfeasance without which the party would not have entered into the agreement, that the grant of a decree would be contrary to public policy of Sri Lanka and that the subject matter is not capable of settlement by mediation.

Why ADR and why Mediation?

Laws Delays – Globally, ADR mechanisms including mediation, have been resorted to by Governments and by disputants, due to the serious issue of laws delays. In Sri Lanka the number of cases pending in all courts in the country at the end of 2024 amounted to just over one million. It is clear that laws delays have reached phenomenal levels and that costs of litigation are overwhelming for many litigants. The cost of maintaining the administration of justice system in a country is significant and is a burden on the State. For trade, business and investment, delays in resolving business disputes detract from their corporate objectives, retard the achievement of business targets, and consume the time of executives.

Contract enforcement must improve – Sri Lanka has a weak contract enforcement record and its performance was marked as being below the South Asian average. This impacts adversely on business and is a deterrent to investors. Henceforth the World Bank will use its B-READY index to measure the business climate of economies. The indicators will provide important data that investors will look at, to make investment decisions and which businesses will examine to make better business decisions. If Sri Lanka desires to offer itself as an attractive investment destination, the dispute resolution regime must be improved.

Benefits of Mediation – The widely accepted benefits of Mediation are that it is cost effective, time efficient, has the potential to reduce the instances when a dispute leads to the termination of a business relationship, and produces savings in the administration of justice for States. These benefits are articulated in the preamble of the UN Mediation Convention and are articulated by international bodies such as WIPO, ICC, ICSID, IBA, to name but a few. It is because the practice of mediation has generated these benefits over several years of use that its popularity has grown.

Mediation is popular globallyIn 2018 the United Nations adopted the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Mediation Convention) responding to a call for a uniform framework to enforce mediated agreements across borders. The need for such a framework was due to the increasing use of mediation for the resolution of cross border trade and business disputes. Sri Lanka signed the Convention in 2019 and enacted domestic legislation in 2024.International Organisations that previously offered only arbitration services such as WIPO, ICC, ICSID, IBA had adopted mediation Rules and have been providing mediation services for many years.

Mediation in domestic regimesMany countries have institutionalised mediation in their domestic laws including for mandatory use at the pre trial stage. Some jurisdictions provide for court annexed mediation which means that mediation is integrated into the judicial system. Other jurisdictions provide for court referred mediation.

The UK’s civil justice reforms of 1999 which were inspired by Lord Woolf’s review of the civil Justice system contained a recommendation that ADR be pursued prior to litigation. Many amendments were made to the Civil Procedure Rules including as recently as 2024 to provide for courts to exercise greater powers to mandate mediation.

India enacted the Mediation Act 2023 which provides a framework for the conduct of mediations and also encourages pre-trial mediation by stating that whether any mediation agreement exists or not, the parties before filing a civil or commercial action, may voluntarily and with mutual consent take steps to settle the disputes by pre-litigation mediation. This clearly articulates a pre-trial, pro mediation bias.

Some other countries in the Asian region that have institutionalised mediation include – Hong Kong (Mediation Ordinance 2013), Singapore (Mediation Acts of 2017 and 2020), Malaysia (Mediation Act, 2012 and AIAC (Malaysia) 2018), Pakistan (CPC as amended and the ADR Act, 2027), Japan (Civil Mediation Act, 1951). Singapore in particular is a leader in the provision of mediation services.

The EU adopted the EU Mediation Directive in 2008 and many European countries have institutionalised mediation.

USA, Canada, Australia and New Zealand are some countries that have a long history of the use of mediation.

The International Mediation Institute (IMI)

is a body with a global reach, dedicated to driving transparency and standards in mediation worldwide. Its vision is “Professional Mediation worldwide: promoting consensus and access to justice.

Is Sri Lanka ready to provide mediation services?

Yes. A number of persons including Lawyers and other professionals have been trained at international Training Institutes, received accreditation and are available to provide services. Trained Mediators have already conducted mediations and the number of disputes being referred to mediation is increasing. Opportunities to obtain training and accreditation from international accreditation Institutes are offered, aided also by Institutions such as UDecide that facilitate training opportunities. The International ADR Center which is a purely private sector non-profit Company has its own Institutional Rules for Mediation and provide services and infrastructure facilities of international standards, including for virtual mediations which have already taken place. The International Chamber of Commerce (Sri Lanka) and the Sri Lanka National Arbitration Centre also have the capability to provide mediation services.

A majority of the trained group includes Lawyers. Trained Mediators continue to develop their learnings and skills and an Association of Trained Mediators is being established. Following global trends, a group of Lawyers have been trained in mediation advocacy to learn the skills to perform their niche role in the mediation process and the trainings will continue.

Is Regulation necessary?

While accreditation for Mediators and MSPs is vital to ensure that standards are maintained, the need for regulation should be addressed with care. Given that Arbitrators have no regulatory regime, the argument is often advanced as to, Why then for mediators and MSPs? Given that the Mediation Bill itself sets down standards for Mediators, MSPs, disputants and sets out the procedure, a regulation framework, if found necessary, must be designed to ensure efficiency and value addition, rather than to provide for regulation for the sake of regulation.

Conclusion

The challenge today is to provide disputants with access to meaningful dispute resolution processes that may be pursued with confidence and which, in their judgment will offer them a result that will satisfy their requirements. This issue assumes a greater degree of importance given the state of the litigation overload in the country and the resulting delays, expense and unpredictability that deny disputants the justice that they seek. It is this context that the initiative to institutionalise Mediation as a mechanism that has proved successful globally and to sustain it in its purest form, assumes relevance.

The Bill before Parliament is timely and will contribute to establishing a comprehensive eco system for the use of mediation in its purest form in Sri Lanka. In time, given the geopolitical imperatives, Sri Lanka can develop into an ADR hub that can be accessed by international partners with confidence.

by Dhara Wijayatilake,

Attorney at Law, Director and Secretary General of the International ADR Center, Sri Lanka; former Secretary to the Ministry of Justice.



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Opinion

War with Iran and unravelling of the global order – II

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A US airstrike on Iran

Broader Strategic Consequences

One of the most significant strategic consequences of the war is the accelerated erosion of U.S. political and moral hegemony. This is not a sudden phenomenon precipitated solely by the present conflict; rather, the war has served to illuminate an already evolving global reality—that the era of uncontested U.S. dominance is in decline. The resurgence of Donald Trump and the reassertion of his “America First” doctrine reflect deep-seated domestic economic and political challenges within the United States. These internal pressures have, in turn, shaped a more unilateral and inward-looking foreign policy posture, further constraining Washington’s capacity to exercise global leadership.

Moreover, the conduct of the war has significantly undermined the political and moral authority of the United States. Perceived violations of international humanitarian law, coupled with the selective application of international norms, have weakened the credibility of U.S. advocacy for a “rules-based international order.” Such inconsistencies have reinforced perceptions of double standards, particularly among states in the Global South. Skepticism toward Western normative leadership is expected to deepen, contributing to the gradual fragmentation of the international system. In this broader context, the ongoing crisis can be seen as symptomatic of a more fundamental transformation: the progressive waning of a global order historically anchored in U.S. hegemony and the emergence of a more contested and pluralistic international landscape.

The regional implications of the crisis are likely to be profound, particularly given the centrality of the Persian Gulf to the global political economy. As a critical hub of energy production and maritime trade, instability in this region carries systemic consequences that extend far beyond its immediate geography. Whatever may be the outcome, whether through the decisive weakening of Iran or the inability of external powers to dismantle its leadership and strategic capabilities, the post-conflict regional order will differ markedly from its pre-war configuration. In this evolving context, traditional power hierarchies, alliance structures, and deterrence dynamics are likely to undergo significant recalibration.

A key lesson underscored by the war is the deep interconnectivity of the contemporary global economic order. In an era of highly integrated production networks and supply chains, disruptions in a single strategic node can generate cascading effects across the global system. As such, regional conflicts increasingly assume global significance. The structural realities of globalisation make it difficult to contain economic and strategic shocks within regional boundaries, as impacts rapidly transmit through trade, energy, and financial networks. In this context, peace and stability are no longer purely regional concerns but global public goods, essential to the functioning and resilience of the international system

The conflict highlights the emergence of a new paradigm of warfare shaped by the integration of artificial intelligence, cyber capabilities, and unmanned systems. The extensive use of unmanned combat aerial vehicles (UCAVs)—a trend previously demonstrated in the Russia–Ukraine War—has been further validated in this theatre. However, unlike the Ukraine conflict, where Western powers have provided sustained military, technological, and financial backing, the present confrontation reflects a more direct asymmetry between a dominant global hegemon and a Global South state. Iran’s deployment of drone swarms and AI-enabled targeting systems illustrates that key elements of Fourth Industrial Revolution (4IR) warfare are no longer confined to technologically advanced Western states. These capabilities are increasingly accessible to Global South actors, lowering barriers to entry and significantly enhancing their capacity to wage effective asymmetric warfare. In this evolving context, technological diffusion is reshaping the strategic landscape, challenging traditional military hierarchies and altering the balance between conventional superiority and innovative, cost-effective combat strategies.

The war further exposed and deepened the weakening of global governance institutions, particularly the United Nations. Many of these institutions were established in 1945, reflecting the balance of power and geopolitical realities of the immediate post-Second World War era. However, the profound transformations in the international system since then have rendered aspects of this institutional architecture increasingly outdated and less effective.

The war has underscored the urgent need for comprehensive international governance reforms to ensure that international institutions remain credible, representative, and capable of addressing contemporary security challenges. The perceived ineffectiveness of UN human rights mechanisms in responding to violations of international humanitarian law—particularly in contexts such as the West Bank and the Gaza Strip, and more recently in Iran—has amplified calls for institutional renewal or the development of alternative frameworks for maintaining international peace and security. Moreover, the selective enforcement of international law and the persistent paralysis in conflict resolution mechanisms risk accelerating the fragmentation of global norms. If sustained, this trajectory would signal not merely the weakening but the possible demise of the so-called liberal international order, accelerating the erosion of both the legitimacy and the effective authority of existing multilateral institutions, and deepening the crisis of global governance.

Historically, major wars have often served as harbingers of new eras in international politics, marking painful yet decisive transitions from one order to another. Periods of systemic decline are typically accompanied by instability, uncertainty, and profound disruption; yet, it is through such crises that the contours of an emerging order begin to take shape. The present conflict appears to reflect such a moment of transition, where the strains within the existing global system are becoming increasingly visible.

Notably, key European powers are exhibiting a gradual shift away from exclusive reliance on the U.S. security umbrella, seeking instead a more autonomous and assertive role in global affairs. At the same time, the war is likely to create strategic space for China to expand its influence. As the United States becomes more deeply entangled militarily and politically, China may consolidate its position as a stabilising economic actor and an alternative strategic partner. This could be reflected in intensified energy diplomacy, expanded infrastructure investments, and a more proactive role in regional conflict management, advancing Beijing’s long-term objective of reshaping global governance structures.

However, this transition does not imply a simple replacement of Pax Americana with Pax Sinica. Rather, the emerging global order is likely to be more diffuse, pluralistic, and multilateral in character. In this sense, the ongoing transformation aligns with broader narratives of an “Asian Century,” in which power is redistributed across multiple centers rather than concentrated in a single hegemon. The war, therefore, may ultimately be understood not merely as a geopolitical crisis, but as a defining inflection point in the reconfiguration of the global order.

Conclusion: A New Era on the Horizon

History shows that major wars often signal the birth of new eras—painful, disruptive, yet transformative. The present conflict is no exception. It has exposed the vulnerabilities of the existing world order, challenged U.S. dominance, and revealed the limits of established global governance.

European powers are beginning to chart a more independent course, reducing reliance on the U.S. security umbrella, while China is poised to expand its influence as an economic stabiliser and strategic partner. Through energy diplomacy, infrastructure investments, and active engagement in regional conflicts, Beijing is quietly shaping the contours of a more multipolar world. Yet this is not the rise of Pax Sinica replacing Pax Americana. The emerging order is likely to be multilateral, fluid, and competitive—a world in which multiple powers, old and new, share the stage. The war, in all its turbulence, may therefore mark the dawn of a genuinely new global era, one where uncertainty coexists with opportunity, and where the next chapter of international politics is being written before our eyes.

by Gamini Keerawella
(First part of this article appeared yesterday (08 April)

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Opinion

University admission crisis: Academics must lead the way

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130,000 students are left out each year—academics hold the key

Each year, Sri Lanka’s G.C.E. Advanced Level examination produces a wave of hope—this year, nearly 175,000 students qualified for university entrance. Yet only 45,000 will be admitted to state universities. That leaves more than 130,000 young people stranded—qualified, ambitious, but excluded. This is not just a statistic; it is a national crisis. And while policymakers debate infrastructure and funding, the country’s academics must step forward as catalysts of change.

Beyond the Numbers: A National Responsibility

Education is the backbone of Sri Lanka’s development. Denying access to tens of thousands of qualified students risks wasting talent, fueling inequality, and undermining national progress. The gap is not simply about seats in lecture halls—it is about the future of a generation. Academics, as custodians of knowledge, cannot remain passive observers. They must reimagine the delivery of higher education to ensure opportunity is not a privilege for the few.

Expanding Pathways, Not Just Campuses

The traditional model of four-year degrees in brick-and-mortar universities cannot absorb the demand. Academics can design short-term diplomas and certificate programmes that provide immediate access to learning. These programmes, focused on employable skills, would allow thousands to continue their education while easing pressure on degree programmes. Equally important is the digital transformation of education. Online and blended learning modules can extend access to rural students, breaking the monopoly of physical campuses. With academic leadership, Sri Lanka can build a reliable system of credit transfers, enabling students to begin their studies at affiliated institutions and later transfer to state universities.

Partnerships That Protect Quality

Private universities and vocational institutes already absorb many students who miss out on state admissions. But concerns about quality and recognition persist. Academics can bridge this divide by providing quality assurance and standardised curricula, supervising joint degree programmes, and expanding the Open University system. These partnerships would ensure that students outside the state system receive affordable, credible, and internationally recognised education.

Research and Advocacy: Shaping Policy

Academics are not only teachers—they are researchers and thought leaders. By conducting labour market studies, they can align higher education expansion with employability. Evidence-based recommendations to the University Grants Commission (UGC) can guide strategic intake increases, regional university expansion, and government investment in digital infrastructure. In this way, academics can ensure reforms are not reactive, but visionary.

Industry Engagement: Learning Beyond the Classroom

Sri Lanka’s universities must become entrepreneurship hubs and innovation labs. Academics can design programmes that connect students directly with industries, offering internship-based learning and applied research opportunities. This approach reduces reliance on classroom capacity while equipping students with practical skills. It also reframes education as a partnership between universities and the economy, rather than a closed system.

Making the Most of What We Have

Even within existing constraints, academics can expand capacity. Training junior lecturers and adjunct faculty, sharing facilities across universities, and building international collaborations for joint programmes and scholarships are practical steps. These measures maximise resources while opening new avenues for students.

A Call to Action

Sri Lanka’s university admission crisis is not just about numbers—it is about fairness, opportunity, and national development. Academics must lead the way in transforming exclusion into empowerment. By expanding pathways, strengthening partnerships, advocating for policy reform, engaging with industry, and optimizing resources, they can ensure that qualified students are not left behind.

“Education for all, not just the fortunate few.”

Dr. Arosh Bandula (Ph.D. Nottingham), Senior Lecturer, Department of Agricultural Economics & Agribusiness, Faculty of Agriculture, University of Ruhuna

by Dr. Arosh Bandula

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Opinion

Post-Easter Sri Lanka: Between memory, narrative, and National security

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As Sri Lanka approaches the seventh commemoration of the Easter Sunday attacks, the national mood is once again marked by grief, reflection, and an enduring sense of incompleteness. Nearly seven years later, the tragedy continues to cast a long shadow not only over the victims and their families, but over the institutions and narratives that have since emerged.

Commemoration, however, must go beyond ritual. It must be anchored in clarity, accountability, and restraint. What is increasingly evident in the post-Easter landscape is not merely a search for truth, but a contest over how that truth is framed, interpreted, and presented to the public.

In recent times, public discourse has been shaped by book launches, panel discussions, and media interventions that claim to offer new insights into the attacks. While such contributions are not inherently problematic, the manner in which certain narratives are advanced raises legitimate concerns. The selective disclosure of information particularly when it touches on intelligence operations demands careful scrutiny.

Sri Lanka’s legal and institutional framework is clear on the sensitivity of such matters. The Official Secrets Act (No. 32 of 1955) places strict obligations on the handling of information related to national security. Similarly, the Police Ordinance and internal administrative regulations governing intelligence units emphasize confidentiality, chain of command, and the responsible use of information. These are not mere formalities; they exist to safeguard both operational integrity and national interest.

When individual particularly those with prior access to intelligence structures enter the public domain with claims that are not subject to verification, it raises critical questions. Are these disclosures contributing to justice and accountability, or are they inadvertently compromising institutional credibility and future operational capacity?

The challenge lies in distinguishing between constructive transparency and selective exposure.

The Presidential Commission of Inquiry into the Easter Sunday Attacks provided one of the most comprehensive official examinations of the attacks. Its findings highlighted a complex web of failures: lapses in intelligence sharing, breakdowns in inter-agency coordination, and serious deficiencies in political oversight. Importantly, it underscored that the attacks were not the result of a single point of failure, but a systemic collapse across multiple levels of governance.

Yet, despite the existence of such detailed institutional findings, public discourse often gravitates toward simplified narratives. There is a tendency to identify singular “masterminds” or to attribute responsibility in ways that align with prevailing political or ideological positions. While such narratives may be compelling, they risk obscuring the deeper structural issues that enabled the attacks to occur.

Equally significant is the broader socio-political context in which these narratives are unfolding. Sri Lanka today remains a society marked by fragile intercommunal relations. The aftermath of the Easter attacks saw heightened suspicion, polarisation, and, in some instances, collective blame directed at entire communities. Although there have been efforts toward reconciliation, these fault lines have not entirely disappeared.

In this environment, the language and tone of public discourse carry immense weight. The framing of terrorism whether as a localized phenomenon or as part of a broader ideological construct must be handled with precision and responsibility. Overgeneralization or the uncritical use of labels can have far-reaching consequences, including the marginalization of communities and the erosion of social cohesion.

At the same time, it is essential to acknowledge that the global discourse on terrorism is itself contested. Competing narratives, geopolitical interests, and selective historiography often shape how events are interpreted. For Sri Lanka, the challenge is to avoid becoming a passive recipient of external frameworks that may not fully reflect its own realities.

A professional and unbiased approach requires a commitment to evidence-based analysis. This includes:

· Engaging with primary sources, including official reports and judicial findings
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· Cross-referencing claims with verifiable data
·

· Recognizing the limits of publicly available information, particularly in intelligence matters

It also requires intellectual discipline the willingness to question assumptions, to resist convenient conclusions, and to remain open to complexity.

The role of former officials and subject-matter experts in this discourse is particularly important. Their experience can provide valuable insights, but it also carries a responsibility. Public interventions must be guided by professional ethics, respect for institutional boundaries, and an awareness of the potential impact on national security.

There is a fine balance to be maintained. On one hand, democratic societies require transparency and accountability. On the other, the premature or uncontextualized release of sensitive information can undermine the very systems that are meant to protect the public.

As Sri Lanka reflects on the events of April 2019, it must resist the temptation to reduce a national tragedy into competing narratives or political instruments. The pursuit of truth must be methodical, inclusive, and grounded in law.

Easter is not only a moment of remembrance. It is a test of institutional maturity and societal resilience.

The real question is not whether new narratives will emerge they inevitably will. The question is whether Sri Lanka has the capacity to engage with them critically, responsibly, and in a manner that strengthens, rather than weakens, the foundations of its national security and social harmony.

In the end, justice is not served by noise or conjecture. It is served by patience, rigor, and an unwavering commitment to truth.

Mahil Dole is a former senior law enforcement officer and national security analyst, with over four decades of experience in policing and intelligence, including serving as Head of Counter-Intelligence at the State Intelligence Service of Sri Lanka and a graduate of the Asia Pacific Center for Security Studies in Hawai, USA.

by Mahil Dole
Former Senior Law Enforcement Officer National Security Analyst; Former Head of Counter-Intelligence, State Intelligence Service)

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