Features
A new mediation law for smarter dispute resolution of civil and commercial disputes – II
(Part I of this article appeared in The Island yesterday.)
An examination of how some of the other countries have institutionalised mediation to address the problem of laws delays shows that an array of institutional devices have been adopted to provide for mediation not only as a voluntary option but also in some jurisdictions, as a mandatory requirement prior to litigation, to respond to serious issues of delays due to congestion in courts.
In the UK , in March 1994, the Lord Chancellor commissioned Lord Woolf to review the Rules of civil procedure with a view to improving access to Justice, reducing the cost of litigation and removing unnecessary complexity. The resulting Access to Justice Report (1996) triggered a series of reforms to improve the civil justice system primarily through the civil procedure rules (1999) which articulated that its overriding objective is to enable the court to deal with cases justly and at proportionate cost. In 2023, the Court of Appeal judgment in Churchill v. Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, decided that English courts do have the power to stay civil proceedings for, or order, parties to engage in mediation or another non-court- based dispute resolution process. The Rules were thereafter amended in 2024 to provide for the use of alternative dispute resolution (ADR) more proactively. These included rules that recognied that –
* promoting or using ADR is a means of achieving the overriding objective;
* the court has a duty to actively manage cases to further the overriding objective, including by ‘ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution’ and ‘helping the parties to settle the whole or part of the case’
* in deciding a costs order, a court will have regard to all the circumstances of the case, including the conduct of the parties, including whether a party failed to comply with an order for ADR or unreasonably failed to engage in ADR.
An ADR pledge made by the UK Government in 2001 was renewed in 2011, by the Dispute Resolution Commitment (DRC) requiring departments to use mediation, arbitration and conciliation. At that time, the then Justice Minister Jonathan Djanogly said: ‘I believe that government should be leading by example by resolving issues away from court using alternatives which are usually quicker, cheaper and provide better outcomes. We want people to see court as a last resort rather than a first option, and cut down on the amount of unnecessary, expensive, painful and confrontational litigation in our society. In many cases methods like mediation are simply a common sense solution which benefits everyone involved. Although they will not be suitable in every case, they are already saving taxpayers millions every year and can save much more.’
The judicial dicta on the power of the courts to order mediation and the imposition of costs on even a successful party for unreasonable refusal to mediate, provides clear acceptance of a pro mediation approach by the UK courts.
In the USA , the discussion on the need for alternatives was raised in a speech made in 1906, by Roscoe Pound, a relatively unknown legal academic at the time, addressing the annual meeting of the American Bar Association (ABA). The title of his address was “The Causes of Popular Dissatisfaction with the Administration of Justice.” He critiqued the American legal system and charged that it was riddled with archaic technicalities, too slow, too expensive and adversarial and that there was injustice when procedure received emphasis above the substantive issues of a conflict. He spoke of the “sporting theory of justice” where litigation was considered as a game where the lawyers were gladiators battling in court to win. He charged that the contentious procedure compels ‘counsel to forget that they are officers of the court and to deal with the rules of law and procedure exactly as the professional football coach with the rules of the court.’ At the time, Pound’s criticisms were considered scandalous, blasphemous and the ABA refused to publish the speech. Things changed however.
Thirty years later, Roscoe Pound went on to become Dean of the Harvard Law School and became a celebrated legal luminary. As for the legal system – Roscoe Pounds sentiments were not dismissed. Seventy years later in 1976, the then Chief Justice Warren Burger convened the Pound Conference (called the second Pound Conference, with the first attributed to Pounds’ 1906 speech event), to consider whether Pounds’ criticisms had been adequately addressed and what more needed to be done. Professor Frank Sander of the Harvard Law School delivered the keynote address and spoke of his vision for a comprehensive Justice center (the “multi door court house”) where an alternative system would function parallel to the litigation system and disputes would be directed to the most appropriate process, such as arbitration and mediation.
The impact of these discussions resulted in significant changes to the dispute resolution landscape in the USA through statutes, inclusion of ADR in academic courses, and the professionalization of the practice of ADR processes, including mediation. Currently, arbitration and mediation are recognized within the mainstream legal system with resounding success. All the States have recognized ADR pathways including mediation, in statutes. Mediation is well entrenched in the USA and the success rate is reportedly very high.
Australia has institutionalized mediation through several statutory and other initiatives. Courts are empowered to refer disputes to mediation without the consent of the parties to enable better management of civil matters. The Civil Dispute Resolution Act, 2011 contains provisions to ensure that, other than in respect of certain excluded civil proceedings, parties must take “genuine steps” to resolve disputes prior to litigation. The Act obligates parties instituting proceedings in court to file a “genuine steps statement” setting out the steps taken to resolve issues or the reasons why no such steps were taken and further provides that a Lawyer acting for such a party must advise that party of the requirement and assist that party to comply with that requirement.
In Ireland, in the very recent case of Burke v O’Connell [2026] IEHC 314 (May 20, 2026), the High Court considered whether a court can order parties to mediate a dispute, against their will, or whether a court is restricted to simply inviting the parties to mediate. Among other issues, the court considered whether mandatory court ordered mediation is a breach of a constitutional right of access to courts, and decided that a court delaying court proceedings for court ordered Mediation, even against the will of the parties, would not constitute a breach of the right access to the courts under the Constitution or the European Convention on Human Rights, and that judges in Ireland regularly make clear that the right of access to the courts is not unconditional. Importantly the court observed that the court is not directing the parties to reach an agreement but simply to commence a mediation. The Court also observed that a court directed mediation order is a very limited order which does not compel settlement and only requires parties to commence a Mediation process and that while attendance at Mediation may not be voluntary, reaching a settlement is voluntary and made order that a court, in controlling its own process, did have the power to direct Mediation in appropriate cases, and that it was an inherent power of the court to ensure the effective and efficient operation of the courts.
The Indian Mediation Act, 2023 articulates a pro mediation policy and provides for mediation via a court annexed scheme for which detailed statutory provisions are included. The Act states that parties may voluntarily, and whether there is a mediation agreement or not, take steps to pursue court annexed pre litigation mediation and provides for the steps to be taken therefor (section 5). The Act provides further that, even if such pre litigation mediation is unsuccessful, a court or tribunal may, at any stage of the proceedings, refer parties to undertake mediation and that when a court so refers a dispute, there is no obligation on the parties to come to a settlement (section 7). In respect of high value commercial disputes however, a plaintiff is required to exhaust ‘the remedy of pre institution mediation’ prior to instituting action, unless urgent interim relief is sought – section 12A introduced by the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts (Amendment) Act, No. 28 of 2018.
In South Africa, parties are mandated to consider mediation before initiating litigation in the High Court. Challenged by a serious issue of a severe backlog, with trial dates scheduled even up to 2031, a Directive was issued by the Judge President of the Gauteng Division of the High Court along with a detailed process Protocol, effective April 2025 to require mandatorily that prospective litigants in all civil matters within the Gauteng division must participate meaningfully in a court-annexed mediation process before they can be allocated a trial date. The protocol requires, among other documents, that a Report of the Mediator stating, among other matters, whether parties “participated in good faith” be filed, to obtain a trial date. This requirement has been included to avoid what the Judge President refers to as “sham mediations.” (https://www.youtube.com/watch?v=v5Gmkzfu8gA&t=425s) Non-compliance results in matters being struck off the roll and could lead to adverse or punitive cost orders. Currently, a challenge to this Directive by the Personal Injury Plaintiff Lawyers Association and the Law Society of South Africa is pending, without a stay of the Rule.
Singapore has emerged as a global leader in the practice of mediation. The Mediation Act 2017 provides for a framework for the use of mediation and for enforcement of a mediated settlement agreement as a decree of court. Mediation is well entrenched in the legal system of Singapore and enjoys the support of government as well as the judiciary. Singapore played a key role in UNCITRAL in the deliberations that led to the drafting of the text for the 1998 UN Mediation Convention and was host to the Convention signing ceremony in August 1999 where a historical number of 46 countries, including Sri Lanka, signed the Convention on the very first day. Many of the training programmes for Sri Lankans that have been arranged by the International ADR Center, have been conducted by the Singapore International Mediation Centre (SIMC) which is renowned for its programmes and for services to handle international commercial disputes.
The European Union Directive (EU Directive 2008/52/EC) provides that a court may, when appropriate and having regard to all the circumstances of the case, invite parties to use mediation (Article 5.1) and that the Directive is without prejudice to national legislation to making the use of mediation compulsory or subjective to incentives or sanctions … provided that such legislation does not prevent the parties from exercising their right of access to the judicial system (Article 5.2). Many European countries have integrated mediation into their dispute resolution systems through legislation or procedural laws in ways that range from recognizing voluntary reference to mediation to requiring mandatory mediation for specified categories of disputes. Countries such as Italy, Greece, Germany and Belgium are some that have robust systems.
It is clear therefore, that jurisdictions around the world, irrespective of the legal system, have sought to recognize mediation for its value not only for minor community dispute resolution but also for the resolution of high value commercial and other family and civil dispute resolution. UNCITRALs preparation of the text for the 1988 UN Mediation Convention was inspired by the significant increase in the use of mediation in international trade and the need for a uniform regime for enforcement, such as the UN NY Arbitration Convention provides in respect of arbitration awards.
Sri Lanka’s advancements have thus far been driven by the private sector. A holistic approach to find responses to the backlog in courts to relieve the pressure on courts, is desired. The promotion of ADR, including mediation, deserves support from the government as well, since, clearly, laws delays have an adverse impact on the economy of the country and should not be seen only as an access to justice issue. As articulated in the UN Mediation Convention, among the positive beneficial results of using mediation for dispute resolution, is that there are cost savings for the State. It is a means of resolving disputes without detracting from the quality of the resolution.
by Dhara Wijayatilake
Attorney at Law; Former Secretary to the Ministry of Justice; Director and Secretary General of the International ADR Center
Features
Polarizing rhetoric greets America on its epochal anniversary
Democratic and progressive opinion in the US and the world over would likely have been further jolted by the divisive rhetoric blared forth by US President Donald Trump on no less an occasion than the 250th anniversary of the US Declaration of Independence from Britain. The world has been placed on notice that what it would be having in the main is aggravated polarization on multiple fronts during what’s left of the Trump tenure.
If the world was expecting positive moves by the Trump administration to bridge divisions, heal rifts and usher in a more harmonious international political order, this is very unlikely to be. Instead, in all probability we would be left with a far more ‘dangerous place to live in’.
Some of the more thought-provoking recent ‘takes’ from President Trump are : ‘A generation after we fought and won the cold war against the menace of communism, there is now a resurgence of the communist menace in our land, including from newcomers to our country who embrace ideas totally opposed to our way of life and our great success.’ ‘We will send them (immigrants) quickly away, and we will continue to build our country bigger and better than ever before.’ ‘We are going to give our country its identity back.’ ‘You can be loyal to Karl Marx or you can be loyal to America. You can be a communist or you can be a patriot. You cannot be both.’
Accordingly, what the world would have in increasing measure going forward are stepped-up attempts to consolidate a white supremacist administration in the US accompanied by a suppression of ethnic, religious and cultural minorities at home along with renewed attempts to spread and consolidate US hegemonism world wide.
The latter project would mainly translate into US military interventions abroad of the Venezuelan type and a persistence if not a resurgence of identity based conflicts globally. Violent reactions internationally to what are seen as attempts by the US to bring recalcitrant sections in particularly the South under white supremacist control will provide the basis for the steadfast presence and spiking of identity politics globally.
Moreover, the path has been paved for stepped-up ethnic, religious and cultural disharmony within the US. A united state is far from possible, given this backdrop. Put simply, it would be a question of steeper political polarization at home and abroad.
The persistent, widespread support for the hard line Islamic regime in Iran locally and globally should serve as an eye-opener for the political decision-makers of the US. Huge crowds at the funerals of Iran’s political leaders could very well be state-orchestrated but they are a pointer to the fact that political Islam is far from on the decline. To the extent to which this is so, the phenomenon could be a hurdle in the path of a stridently expansionist US.
Looking back, it was the consolidation of the Islamic regime in Iran in the late seventies of the last century that, besides proving a major challenge to the unfettered global power expansion of the US and its Western allies, provided the motive force as it were for the proliferation of Islam-based identity politics in particularly the South. This continues to be so.
Going forward, the US would need to figure out how best it could manage the persistent presence of Islamic fundamentalism world wide, and for that matter other forms of identity politics, without drastically losing its global power and influence.
The recent successful challenge by Iran to the US’ efforts to exercise its diktat in West Asia should prove an ‘eye-opener’. In these confrontations both sides were bloodied but Iran proved that it could successfully take on the US militarily. The inference for the US ought to be that projecting its military might in the Middle East in a no-holds-barred fashion would not prove easy.
Arising from the foregoing a foremost policy challenge for the US would be to curb Iranian military power while avoiding another major military confrontation with the Islamic state that would cost the US and the world dearly in particularly economic and material terms. The US would have no choice but to persist with the often flagging West Asian peace effort and to render it fully workable.
Ukraine presents the US with another formidable challenge. As is known, Ukraine is proving no easy ‘push-over’ for Russia, but it is badly in need of more sophisticated Western arms, particularly effective air defense systems, to fully neutralize the Russian invasion. What would the US choose to do; go to Ukraine’s assistance fully or opt not to ruffle and antagonize the Putin regime, with which it is on some cordial terms?
A negotiated solution is best in Ukraine and the Trump administration would do well not to lose sight of this ideal but Russia too should see the need for a diplomatic solution if it is to salvage itself from its military stalemate in Ukraine. The US needs to try being a peace mediator in the latter theatre but if the Russian political leadership fails to opt for peace the US would have no choice but to join the rest of NATO and Europe in continuing to arm Ukraine.
The US would need to take the latter course if the ‘world’s mightiest democracy’ is to remain committed to its founding ideals. If President Trump fails to meet this challenge he would prove that he is nothing more than an ‘empty rhetorician’.
However, it should not come as a surprise to the world if Trump chooses not to strongly back the rest of the West on Ukraine. Domestic and foreign policy are closely intertwined. Since the Trump administration is committed to building a white supremacist state at home, democratic development worldwide has been of the least importance to it.
The Trump administration’s strong affinities to white jingoism would increasingly compel it to opt for a policy of international isolationism. As a result Ukraine could prove unimportant for the US going forward.
Consequently, US-Western Europe friction in particular is only likely to intensify in the days ahead. Coupled with the contentious issues growing out of the persistence of identity politics, the Trump administration’s far-sightedness in managing foreign policy issues would be tested to the fullest. Whether the world would have comparative peace or continued blood-letting would depend crucially on such judiciousness.
Features
Beyond concrete: Sunela Jayewardene urges Sri Lanka to rediscover an ancient wisdom for a planet in peril
It was more than a lecture on architecture. It was a challenge to rethink civilisation itself.
Standing before a packed audience at Dilmah by Genesis in Maligawatte, internationally acclaimed environmental architect, author and conservationist Sunela Jayewardene delivered a keynote that transcended blueprints, buildings and urban planning.
Instead, she invited her listeners on an intellectual journey into Sri Lanka’s ancient past, arguing that the answers to some of the world’s gravest environmental crises may already exist within the island’s forgotten ecological wisdom.
Her address, titled “Beyond Concrete: Architecture for the Coexistence of Species,” was at once philosophical, historical and deeply practical. It questioned humanity’s obsession with dominating nature and called for a return to a design ethic rooted in respect, restraint and coexistence.
“The road is actually very simple,” Jayewardene said. “We have simply forgotten it.”
That observation became the defining thread of an afternoon that challenged conventional thinking about architecture and development.
According to Jayewardene, modern society has inherited a worldview shaped largely by colonial values that placed human needs above those of every other living organism.
“Our value system was turned on its head,” she observed. “We accepted a Western way of looking at nature without questioning it. Today we can clearly see the consequences. The world is in crisis. Species are in crisis. Our lifestyles are in crisis.”
She was careful not to romanticise the past, nor was she dismissive of modern science. Instead, she argued that Sri Lanka’s pre-colonial civilisation possessed a sophisticated environmental philosophy that modern planners and architects have largely ignored.
For Jayewardene, environmental architecture is not about fashionable sustainability slogans or cosmetic landscaping.
It begins with humility.
It begins by recognising that humans are only one species among millions sharing the same landscape.
“The built environment should not exist in opposition to nature,” she said. “It should become part of nature.”
One of the most captivating moments of her presentation came when she introduced her own research into the island’s ancient sacred geography.
Using digital mapping and satellite imagery, Jayewardene demonstrated the remarkable alignment of Sri Lanka’s four original Saman Devalayas, whose axes converge on Sri Pada, historically known as Samanthakuta.
The extraordinary precision of these alignments, she argued, raises profound questions about the scientific and surveying capabilities of ancient Sri Lankan civilisation.
“What kind of technology enabled them to achieve this?” she asked the audience.
Her purpose was not to offer speculative answers but to challenge deeply ingrained assumptions that ancient societies lacked scientific sophistication.
“We often underestimate what our ancestors knew,” she said. “Yet the evidence around us tells a very different story.”
That forgotten knowledge, she argued, extended well beyond engineering.
It shaped an entire philosophy of living with the landscape rather than imposing human will upon it.
Displaying photographs from archaeological sites including Ritigala, ancient monasteries and rock pavilions hidden within Sri Lanka’s forests, Jayewardene illustrated how builders carved steps around natural boulders, integrated structures into existing rock formations and preserved the contours of the land.
Modern construction, she suggested, would almost certainly have bulldozed those landscapes into submission.
“Our ancestors honoured the land,” she said. “They accepted the landscape instead of trying to conquer it.”
For Jayewardene, that principle remains the foundation of every project she undertakes.
She described environmental architecture as an exercise in listening rather than commanding.
Every site, she explained, possesses its own identity, ecological history and natural rhythm.
The responsibility of the architect is to understand that identity before attempting to intervene.
“The land tells you what it wants to become,” she said.
Throughout the presentation, one word repeatedly surfaced—context.
Without understanding context, she argued, architecture becomes little more than sculpture.
Good design cannot be copied indiscriminately from one country to another or even from one district to another.
Climate differs.
Rainfall differs.
Vegetation differs.
Wildlife differs.
Culture differs.
Even the stories associated with landscapes differ.
All of these, Jayewardene insisted, must shape architecture.
“When I speak about inhabitants, I don’t mean only human beings,” she explained.
“The birds, insects, reptiles, mammals, trees and every living organism already occupying that land must become part of the design equation.”
This broader understanding forms the basis of what she describes as non-human-centred design—an approach that rejects the notion that cities exist exclusively for people.
Instead, landscapes should provide refuge for biodiversity while simultaneously serving human communities.
It is an idea that resonates strongly at a time when rapid urbanisation continues to erode habitats across Sri Lanka.
Jayewardene also challenged prevailing attitudes towards development itself.
Too often, she argued, “development” has become synonymous with replacing natural systems by concrete infrastructure.
She questioned whether flattening hillsides, redirecting streams and clearing vegetation can genuinely be described as progress.
In her view, genuine development should first ask what ecological value already exists before deciding what should be built.
One of the simplest yet most profound examples she offered concerned water.
“I always say it is acceptable to interrupt water,” she remarked. “But never disrupt it.”
That distinction reflects an ecological understanding often absent from conventional engineering.
Natural drainage systems, she warned, perform countless functions that remain invisible until they are damaged.
Floods, soil erosion, biodiversity decline and even changes in local climate frequently follow.
“We disrupt far more than water,” she said. “We disrupt entire ecological relationships.”
Equally significant was her distinction between degraded brownfield sites and relatively untouched greenfield landscapes.
Brownfield sites require ecological restoration, rehabilitation and renewal.
Greenfield sites demand restraint.
Minimal intervention, she argued, is often the highest form of environmental design.
The keynote found an appropriate setting within Dilmah Conservation’s own efforts to restore degraded urban landscapes.
Earlier in the programme, Rishan Sampath of Dilmah Conservation outlined the organisation’s transformation of an abandoned industrial property in Moratuwa into a flourishing urban forest containing over 300 tree species and more than 1,000 individual plants.
Scientific studies conducted within the restored forest have already demonstrated improvements in air quality compared with adjoining urban roads, providing measurable evidence that biodiversity restoration can improve city life.
For Jayewardene, such initiatives represent far more than beautification projects.
They demonstrate that ecological restoration can become a guiding philosophy for future urban planning.
Her address ultimately became a call to rethink humanity’s place within nature.
Architecture, she argued, should no longer celebrate domination over landscapes.
It should celebrate coexistence.
Every building should strengthen biodiversity.
Every development should restore ecological balance.
Every designer should ask not merely how a project serves people, but how it serves life itself.
As the audience left the hall, they carried with them more than architectural ideas.
They carried a challenge
To question inherited assumptions.
To rediscover indigenous ecological wisdom.
And to recognise that Sri Lanka’s greatest contribution to global sustainability may not lie in importing new environmental models, but in rediscovering the timeless principles embedded within its own civilisation.
For Sunela Jayewardene, the future will not be secured by building more impressive skylines.
It will be secured when humanity learns once again to build gently, intelligently and respectfully—allowing architecture to become not an act of conquest, but an expression of coexistence.
By Ifham Nizam
Features
Colombia’s “back-to-back queen”
Beyond modelling, Colombia’s Katherine Castaño, who captured the crown at the Top Model of the World 2026, in Egypt, is also a TV host, entrepreneur and social media influencer.
She’s based in Miami, Florida right now — a hub for fashion and influencer work — a city she calls home base, while representing Colombia on the world stage.
Her Miami base gives her access to fashion, entertainment, and business networks, while her title keeps Colombia front and centre in the global modelling conversation.
Off the runway, she says she enjoys singing, playing the piano, and tennis.
Katherine didn’t make the trip to Egypt as a newcomer. She’s built a strong international portfolio before winning the crown.
In fact, her résumé reads like a fashion passport: Colombia Moda, New York Fashion Week, Miami Swim Week, Miami Fashion Week, Nicaragua Diseña, IXEL Moda, and Mercedes-Benz San José.
On June 8, 2026, Katherine Castaño was crowned by outgoing winner Natalia Garizabal Vera, also of Colombia. That gave Colombia a historic back-to-back victory — the first time any country has done it in the competition’s history, and Colombia’s 4th win overall.
As Top Model of the World 2026, Katherine’s reign is centred on elevating her profile as a model, influencer, and entrepreneur.

She’s built a personal brand around beauty, ambition, style, and professionalism, with strong reach across fashion, social media, and business.
As titleholder, she’s now the face of the pageant’s international fashion platform, representing Colombia globally, while based out of Miami.
Ahead of the competition she was clear about the stakes: “This is bigger than me. This is for my country. This is for the story I’m here to write… And I’m not going quietly… we’re going for that back to back.”
As the reigning titleholder, Katherine Castaño’s role extends far beyond the sash. She’s using the platform to grow her brand as a model, influencer, and entrepreneur rooted in “beauty, ambition, style, and professionalism”.
She will also be doing runway shows, photoshoots, brand appearances, and fashion events.
Sri Lanka’s representative at this pageant was NetalieWithanage.
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