Taking ADR Forward in Sri Lanka

By Uditha Devapriya

If recent Justice Ministry reports are anything to go by, over a million cases are pending in Sri Lanka. The country’s judge to population ratio, 18 to one million, is low by international standards, while prison overcrowding and backlogs at Labour Tribunals and specialist courts have heightened public distrust with the courts.

These have opened a can of worms, and they have been felt particularly in trade and commercial agreements, for which Sri Lanka has gained an unsavoury reputation. Out of step with the times, our courts system is hence in dire need of repair.

What can be done, though, and should be done? In a rare show of consensus, lawyers, academics, civil society, and government officials including Ministers have advocated for the restructuring of the court system. This does not include just increasing the cadre of judges in the country or establishing new courts, though both have been recommended and enforced. It also includes alternative dispute resolution (ADR), including mediation.

Last year’s Commercial Mediation Centre of Sri Lanka Act, which provides the basis for a Commercial Mediation Centre, and this year’s Recognition and Enforcement of International Settlement Agreements Resulting from Mediation Bill, which will enforce international commercial agreements reached through mediation, underlies the government’s efforts at promoting ADR and reducing the pileup of cases in our courts.

Why the sudden interest? Because on every front, ADR makes sense. It helps the courts focus on important cases and clear backlogs. It expedites the resolution of cases. It is less expensive, less time consuming. Therefore, it is more effective.

Lacking the adversarial character of conventional trials, ADR prioritises the interests and the motivations, rather than the preferred outcomes, of both parties. Moreover, ADR as it is practised the world over has been influenced by some of the most influential studies on dispute resolution. These include the Harvard Negotiation Method, popularised by law professor and conflict resolution guru Roger Fisher. First tried and tested in the US, these negotiation frameworks have been used in various settings, including the 1979 Egypt–Israel Peace Treaty, and they have been remarkably successful.

Sri Lanka is not a newcomer to ADR, but the country has been slow to respond. That has mostly been due to institutional apathy: law firms do have ADR specialists, yet they occupy a small niche. At undergraduate and school level, moreover, trials are seen as little more than debates, where the goal is to win over the other party no matter what.

For better or worse, that is what motivates students to study and practice law. Yet at the same time, there are undergraduates who want to go beyond arguing and winning cases, who want to specialise in resolving disputes, who want to become “the guy they come to when the diplomats and the lawmakers start screwing things up.”

Kaif Sally likes to do things differently. So do Dinara Abeywickrema and Binithi Perera. From February 5 to 10 they will be in Paris, representing Sri Lanka at the International Chamber of Commerce (ICC) International Commercial Mediation Competition, where, as the official website puts it, 40 student teams and over a hundred experts will “collectively undergo 100 mock mediation and negotiation simulations.”

It seems a tough task, but it underlies the seriousness of what Kaif, Dinara, and Binithi are doing. The three of them first met at KDU years ago. They wanted to do something new. They had passed through school, having taken part in as many clubs and societies as they could. At first, university life seemed no different. “In school you wade through one power relationship after another, you have to bargain, to constantly assert yourself,” Kaif recalled. “For us, law school, and law in general, meant the same thing.”

That all changed last year. In March, Kaif and a first year KDU student, Rajindh Gooneratne, became champions in the Negotiating Category at the National Mediation Competition. The previous month they had completed a National Commercial Mediation Training Programme, conducted by international experts, including the formidable Pascal Comvalius.

At the time Kaif was interning under President’s Counsel Harsha Fernando, who specialises in negotiations and is attached to Sea-Change Partners Singapore, providing a number of specialist services to businesses, governments, and international organisations, inclusive of the development sector. Working with Fernando, Kaif immersed and absorbed himself in the niceties of trade agreements, attending a number of negotiations.

One day, during a casual conversation, Fernando threw something at Kaif.

“Why aren’t you guys looking at mediation? We are going to pass a Mediation Act this year. This will be the next big thing for Sri Lanka.”

These developments spurred Kaif and Rajindh to introduce mediation to KDU. Following the Mediation Competition, the two of them organised a workshop for students preparing for the International Investor-State Mediation Competition (IIMH), which focused on finalising trade and investment deals between State entities and private companies.

Dinara Abeywickrema and Binithi Perera, two of the students who competed at the IIMH, did very well there, being nominated for the Distinction in Relationship Building Award. At the same time they emerged as semi-finalists at another reputed tournament, the ALSINC International Negotiation Competition. These two victories won them, as well as Kaif and Rajindh, recognition from international experts, including Dinara’s and Binithi’s coach Rishika Pandey. They also opened them up to other possibilities.

By this point, the four of them felt confident enough to represent Sri Lanka abroad. For that, though, they felt they needed institutional recognition. Yet after discussing the matter with the Moot Court Bench, they realised they had to start from scratch. As often happens in Sri Lanka, they discovered too many critics, too many cynics. If they wanted to compete abroad and establish themselves, they would have to rely on themselves.

“We put in a lot of effort and put up with 20-hour weeks on top of our course work. It was practice, practice, practice, running from one workshop session to another, and emerging triumphant. After all that, when you find out you have been dropped and rejected, you would come close to giving it up. I almost did.”

Yet Dinara and Binithi threw their weight behind him and Rajindh, and made it clear that though they lacked support, they were good enough to go ahead. This encouraged Kaif to apply the team independently, as KDU students. By a miracle, they got in.

Almost immediately, and in preparation for the tournament, Kaif’s team was assigned a formidable coaching and mentoring team. Among them was Pascal Comvalius, who was by then interacting with Kaif, Rajindh, Dinara, and Binithi.

On January 18, 19, and 20, 2024, Kaif, Dinara, and Binithi participated at the ninth Lex Infinitum Championship in Goa, India. Organised by the V. M. Salgaocar College of Law, Lex Infinitum is seen as Asia’s instalment of the ICC, with teams that have applied for and been selected for the latter using it as a training ground.

Kaif and his team did more than that, of course. Putting in their best efforts, they not only emerged runners-up, coming second to the National University of Singapore. They also defeated the representatives of last year’s ICC Tournament World Champion, the National Academy of Legal and Social Academic Research (NALSAR), Hyderabad.

This was, not to put too fine a point, a big deal. Returning to Sri Lanka a week ago, they were feted, applauded, celebrated. Yet soon after they threw themselves into preparing for the big event. From February 5 to 10, they will be in Paris, shuttling from one engagement to another at the ICC Tournament. “It has been a revelation for us,” the three of them told me. “But there is a lot more we need to pick up on, finetune, perfect.”

Kaif emphasised the broader implications of what they are doing.

“Sri Lanka has racked up an unfortunately bad reputation for trade deals and agreements. This is because we always go with the aim of striking a bargain. That is how countries like China and Thailand always outstep us. Mediation teaches you to focus on the interests of the other party. It is only when you focus on what they want, that you can achieve a consensus and compromise. That has helped us with our personal relationships as well.”

Dinara and Binithi interjected.

“At mediation tournaments, you get two briefs. The first is titled general information, and it outlines your situation in a particular case. The second is titled confidential information, and it contains information about what the other party really wants. The trick is to manoeuvre the negotiations in such a way that the other party doesn’t know that you know about its interests, yet is encouraged to see your point of view. This is something traditional mooting often misses, because they are based on power play.”

Sri Lanka is still at a crossroads. Recovery is imminent, but we are hardly done with the crisis we entered three or four years ago. Against such a backdrop, it makes sense to explore alternative ways of negotiating agreements, including trade deals, to signal at investors and bilateral partners that we are ready for business.

“I want to be a climate and trade negotiator,” Kaif told me as we wrapped up our interview. “Ideally, the guy who everyone goes to and consults when all other political and diplomatic options have been exhausted.” Both Dinara and Binithi share his enthusiasm.

Ultimately, it is this enthusiasm which will take Sri Lanka beyond the attitudes that have dominated it, and sapped it of its potential, for so long. In that sense, Paris 2024 will be crucial, not just for Kaif’s team, but also, pertinently, for Sri Lanka.

Uditha Devapriya is a writer, researcher, and analyst based in Sri Lanka who contributes to a number of publications on topics such as history, art and culture, politics, and foreign policy. He can be reached at .