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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

The shadow of a Truman moment in the Iran war

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Wars often produce moments when leaders feel compelled to seek a decisive stroke that will end the conflict once and for all. History shows that such moments can generate choices that would have seemed unthinkable only months earlier. When Harry S. Truman authorised the atomic bombings of Hiroshima and Nagasaki in 1945, the decision emerged from precisely such wartime pressures. As the conflict involving the United States, Israel and Iran intensifies today, the world must ensure that a similar moment of desperate calculation does not arise again.

The lesson of that moment in history is not that such weapons can end wars, but that once the logic of escalation begins to dominate wartime decision-making, even the most unthinkable options can enter the realm of strategic calculation. The mere possibility that such debates could arise is reason enough for policymakers everywhere to approach the present conflict with extreme caution.

As the war drags on, both Donald Trump and Benjamin Netanyahu will face mounting pressure to produce decisive results. Wars rarely remain confined to their original scope once expectations of rapid victory begin to fade. Political leaders must demonstrate progress, military planners search for breakthroughs, and public narratives increasingly revolve around the need for a conclusive outcome. In this environment, media speculation about “exit strategies” or “off-ramps” for Washington can unintentionally increase pressure on decision-makers. Even well-intentioned commentary can shape the climate in which leaders make decisions, potentially nudging them toward harder, more dramatic actions.

Neither the United States nor Israel lacks the technological capability associated with advanced nuclear arsenals. The nuclear arsenals of advanced powers today are far more sophisticated than the devices used in 1945. While their existence is intended primarily as deterrence, prolonged wars have historically forced strategic communities to examine every available option. Even the discussion of such possibilities is deeply unsettling, yet ignoring the pressures that produce such debates can be dangerous.

For that reason, policymakers and societies on all sides must recognise the full range of choices that prolonged wars can place before leaders. For Iran’s leadership and its wider strategic community, absorbing this reality may be essential if catastrophic escalation is to be avoided. From Tehran’s perspective, the conflict may well be seen as existential. Yet history also shows that wars framed as existential struggles can generate the most dangerous strategic decisions.

The intellectual climate in Washington has also evolved. A number of influential voices in Washington now argue that the United States has become excessively risk-averse and that restoring global credibility requires a more assertive posture. Such arguments reflect a broader shift toward the language of renewed deterrence and strategic competition. Yet this very logic can make it politically harder for leaders to conclude conflicts without visible demonstrations of strength.

The outcome of this conflict will also be watched closely by other major powers. In 1945, the atomic decision was shaped not only by the desire to end a brutal war but also by the strategic message it sent to rival states observing the emergence of a new geopolitical era. Today, other significant powers will similarly draw lessons from how the United States manages both the conduct and the conclusion of this conflict.

This is why cool judgment is essential at this stage of the war. Whether the original decision to go to war was wise or ill-advised is now largely beside the point. Once a conflict has begun, the overriding priority must be to prevent escalation into something far more dangerous.

In such moments, the international system can benefit from the quiet diplomacy of actors that retain a degree of strategic autonomy. Among emerging nations, India stands out as a major emerging power in this regard. Despite its energy dependence on the Gulf and deep economic engagement with the United States, India has consistently demonstrated a capacity to maintain independent channels of communication across geopolitical divides.

This unique positioning may allow New Delhi to explore, discreetly and without public fanfare, avenues for de-escalation with Washington, Tel Aviv and Tehran alike. At moments of heightened tension in international politics, the world sometimes requires what might be called an “adult in the room”: a state capable of engaging all sides while remaining aligned exclusively with none.

If the present conflict continues to intensify, the value of such diplomacy may soon become evident. The most important lesson from 1945 is not only the destructive power of nuclear weapons but the pressures that can drive leaders toward choices that later generations struggle to comprehend. History shows that when wars reach their most desperate phases, restraint remains the only safeguard against catastrophe.

(Milinda Moragoda is a former Cabinet Minister and diplomat from Sri Lanka and founder of the Pathfinder Foundation, a strategic affairs think tank, can be contacted via email@milinda. This was published ndtv.com on 2026.03.1

by Milinda Moragoda

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Opinion

Practicality of a trilingual reality in Sri Lanka

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Dr. B.J.C. Perera (Dr. BJCP) in his article ‘Language: The symbolic expression of thought’ (The island 10.03.2026) delves deeper into an area that he has been exploring recently – childhood learning. In this article he writes of ‘a trilingual Sri Lanka’, reminding me of an incident I witnessed some years ago.

Two teenagers, in their mid to late teens, of Muslim ethnicity were admitted to the hospital late at night, following a road traffic accident. They had sustained multiple injuries, a few needing surgical intervention. One boy had sustained an injury (among others) that needed relatively urgent attention, but in itself was not too serious. The other had also sustained a few injuries among which one particular injury was serious and needed sorting out, but not urgently.

After the preliminary stabilisation of their injuries, I had a detailed discussion with them as to what needed to be done. Neither of them spoke Sinhala to any extent, but their English was excellent. They were attending a well-known international school in Colombo since early childhood and had no difficulty in understanding my explanation – in English. The boys were living in Colombo, while their father would travel regularly to the East (of Sri Lanka) on business. The following morning, I met the father to explain the prevailing situation; what needs to be done, urgency vs. importance, a timeline, prioritisation of treatment, possible costs, etc.

Doctor’s dilemma

The father did not speak any English and in conversation informed me that he had put both his boys into an International School (from kindergarten onwards) in order to give them an English education. The issue was that the father’s grasp of Sinhala was somewhat rudimentary and therefore I found that I could not explain the differences in seriousness vs, urgency and prioritisation issues adequately within the possible budget restrictions. This being the case and as the children understood exactly what was needed, I then asked the sons to ‘educate’ the father on the issues that were at hand. The boys spoke to their father and it was then that I realised that their grasp of Tamil was the same as their father’s grasp of Sinhala!

In the end I had to get down a translator, which in this case was a junior doctor who spoke Tamil fluently; explained to him what was needed a few times as he was not that fluent in English, certainly less than the boys, and then getting him to explain the situation to the father.

What was disturbing was having related this episode at the time to be informed that this was not in fact not an isolated occurrence. That there is a growing number of children that converse well in English, but are not so fluent in their mother tongue. Is English ‘the mother tongue’ of this ‘new generation’ of children? The sad truth is no and tragically this generation is getting deprived of ‘learning’ in its most fundamental form. For unfortunately, correct grammar and syntax accompanied with fluency do not equal to learning (through a language). It is the natural process of learning two/three languages (0 to 5 years) that Dr. BJCP refers to as being bilingual/trilingual and is the underlying concept, which is the title of Dr. BJCP’s article ‘Language: The symbolic expression of thought’.

“Introduction into society”

It is critical to understand at a very deep level the extent and process of what learning in a mother tongue entails. The mother’s voice is arguably the first voice that a newborn hears. Generally speaking, from that point onwards till the child is ‘introduced into society’ that is the voice he /she hears most. In our culture this is the Dhorata wedime mangalyaya. Till then the infant gets exposed to only the voices of the immediate /close family.

Once the infant gets exposed to ‘society’ he /she is metaphorically swimming in an ocean of language. Take for example a market. Vendors selling their wares, shouting, customers bargaining, selecting goods, asking about the quality, freshness, other families talking among themselves etc. The infant is literally learning/conceptualizing something new all the time. This learning process happens continuously starting from home, at friends/relatives’ houses, get-to-gathers, festivals, temples etc. This societal exposure plays a dominant role as the child/infant gets older. Their language skills and vocabulary increase in leaps and bounds and by around three years of age they have reached the so-called ‘language explosion’ stage. This entire process of learning that the child undergoes, happens ‘naturally and effortlessly’. This degree of exposure/ learning can only happen in Sinhala or Tamil in this country.

Second language in chilhood

Learning a second language in childhood as pointed out by Dr BJCP is a cognitive gift. In fact, what it actually does is, deepens the understanding of the first language. So, this-learning of a second language- is in no way to be discouraged. However, it is critical to be cognisant of the fact that this learning of the second language also takes place within a natural environment. In other words, the child is picking up the language on his own. As readily illustrated in Dr. BJCP’s article, the home environment where the parents and grandparents speak different languages. He or she is not being ‘forcefully taught’ a language that has no relevance outside the ‘environment in which the second language is taught’. The time period we (myself and Dr. BJCP) are discussing is the 0 to 5-year-old.

It does not matter whether it is two or three languages during this period; provided that it happens naturally. For as Dr. BJCP states in his article ‘By age five, they typically catch up in all languages…’ To express this in a different way, if the child is naturally exposed to a second /third language during this 0 to 5-year-old period, he /she will naturally pick it up. It is unavoidable. He /she will not need any help in order for this to happen. Once the child starts attending school at the age of 5 or later, then being taught a second language formally is a very different concept to what happens before the age of 5.

The tragedy is parents, not understanding this undisputed significance of ‘learning in/a mother tongue’, during the critical years of childhood-0 to 5; with all good and noble intentions forcefully introduce their child to a foreign tongue (English) that is not spoken universally (around them) i. e., It is only spoken in the kindergarten; not at home and certainly nowhere, where the parents take their children.

Attending school

Once the child starts attending school in the English medium, there is no further (or minimal) exposure to his /her mother tongue -be it Sinhala or Tamil. This results in the child losing the ability to converse in his/her original mother tongue, as was seen earlier on. In the above incident that I described at the start of this article, when I finally asked the father did he comprehend what was happening; his eyes filled with tears and I did wonder was this because of his sons’ injuries or was it because his decisions had culminated in a father and a son/s who could no longer communicate with each other in a meaningful way.

Dr BJCP goes on to state that in his opinion ‘a trilingual Sri Lanka will go a long way towards the goals and display of racial harmony, respect for different ethnic groups…’ and ‘Then it would become a utopian heaven, where all people, as just Sri Lankans can live in admirable concordant synchrony, rather than as a splintered clusters divided by ethnicity, language and culture’. Firstly, it must be admitted from the aspect of the child’s learning perspective (0 to 5 years); an environment where all three languages are spoken freely and the child will naturally pick up all three languages (a trilingual reality) does not actually exist in Sri Lanka.

However, the pleasant practical reality is that, there is absolutely no need for a trilingual Sri Lanka for this utopian heaven to be achieved. What is needed is in fact not even a bilingual Sri Lanka, but a Sri Lanka, where all the Sinhalese are taught Tamil and vice versa. Simply stated it is complete lunacy– that two ethnic communities that speak their own language, need to learn another language that is not the mother tongue of either community in order to understand one another! It is the fact that having been ruled by the British for over a hundred years, English has been so close to us, that we are unable to see this for what it is. Imagine a country like Canada that has areas where French is spoken; what happens in order to foster better harmony between the English and French speaking communities? The ‘English’, learn to speak French and the ‘French’ learn to speak English. According to the ‘bridging language theory of Sri Lanka’, this will not work and what needs to happen is both communities need to learn a third language, for example German, in order to communicate with one another!

Learning best done in mother tongue

eiterating what I said in my previous article – ‘Educational reforms: A Perspective (The Island 27.02.2026) Learning is best done in one’s mother tongue. This is a fact, not an opinion. The critical thing parents should understand and appreciate is that the best thing they can do for their child is to allow/encourage learning in his/her mother tongue.

This period from 0 to 5 years is critically important. If your child is exposed naturally to another language during this period, he /she will automatically pick it up. There is no need to ‘forcefully teach’ him /her. Orchestrating your child to learn another language, -English in this instance- between the ages of 0 to 5 at the expense of learning in his /her mother tongue is a disservice to that child.

by Dr. Sumedha S. Amarasekara

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Opinion

Tribute to Vijitha Senevirathna

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APPRECIATION

On Friday, the 20th of March, Vijitha Senevirathna would have celebrated his 85th birthday if not for his sad passing away nearly a year ago.

The passing of Vijitha was a moment of great sorrow to all who knew him.

He was my classmate from Montessori to pre-university at Maris Stella College, Negombo. As a Maristonian, Vijitha excelled in his academic studies.

Eventually, he entered the Law College and practised as an Attorney-at-Law and Notary Public for over 50 years.

As an Attorney-at-Law, Vijitha earned the respect of the judiciary and a wide circle of clients. He upheld the highest and most cherished values of the legal profession and earned the trust of all who knew him. His 50th anniversary in the noble profession of law was celebrated with much pageantry, amidst a distinguished gathering of friends, relations, clerics, and the rich and famous of Sri Lanka.

Vijitha dearly loved his proud wife Nirmali and his six children, who are in the highest professions in Sri Lanka. He inculcated among his children professional efficiency, diligence, and honesty.

We who associated closely with Vijitha miss his warm friendship, sense of humor, and animated conversation. He was a raconteur, and people gathered around him and listened to his narrations and tales of yore, especially at the many celebrations at his residence in Dehiwala, where the waters of Scotland flowed generously.

I have personally admired Vijitha’s patience, grit, and lifetime achievements, despite a physical dysfunctionality he suffered over his lifetime.

For Vijitha, the song has ended, but the melody lingers on, in the words of the popular composer Irving Berlin.

Merrick Gooneratne

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