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New mediation law for smarter dispute resolution of civil and commercial disputes – I

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The Mediation (Civil and Commercial Disputes) Bill  was passed by the Parliament on Thursday, June 11, 2026.  Harshana  Nanayakkara, Minister of Justice and National Integration, introduced the Bill, and explained its provisions and value for Sri Lanka and global developments in the use of mediation. Encouragingly, it was passed unanimously.

Sri Lanka’s commitment to provide legislative support for the use of mediation is timely and most welcome. Given that the backlog of cases pending before courts is over a staggering 1.1 million, it is clear that Sri Lanka is yet another country that remains challenged to find responses to make  dispute resolution more efficient. The impact of laws delays is serious and damaging not only to the disputants personally, but also for businesses and the economic development of the country. The delays in concluding cases impacts the economy adversely, both directly and indirectly,  but are often seen only as an access to Justice concern. This is unfortunate. In many jurisdictions across the globe, alternative dispute resolution processes (ADR), such as mediation, have been introduced to alleviate laws delays. While Sri Lanka enacted legislation (1988) to provide for mediation in respect of minor community disputes of a low monetary threshold, the enactment of the new law heralds a commitment to provide for the recognition of a disciplined regime for its use for higher value civil and commercial disputes.

The new law provides for the recognition of mediation as a dispute resolution option that can be voluntarily selected by parties, and for a governance regime to ensure that mediations are conducted in compliance with certain standards which are globally accepted. It provides statutory recognition to the principle that a mediated settlement agreement that has been signed by the disputants, is valid in law. It does not provide for any management control by government or establish entities. In addition to the voluntary reference by parties, a  court can also refer a dispute in an action before it, to mediation, at its discretion, after considering all  circumstances and if considered appropriate.  The voluntary nature of the process is not affected because, while the court can refer the dispute to mediation and the parties must then engage in the mediation, there is no compulsion for the parties to settle against their will.

The law sets out the obligations of Mediators, disputants and the Service Provider. Certain categories of disputes cannot be referred  to mediation.  These are disputes the settlement of which requires the inclusion of terms that can be given effect to, only on a decree of court, such as the termination of a marriage or a declaration of nullity of marriage or the adoption of a child or the partition of land to obtain rights in rem.  A schedule sets out eleven (11) categories of actions that cannot be settled by mediation. However,  matters relevant to such disputes may be mediated for the purpose of submitting terms of settlement to court for consideration of incorporation in a judgement, decree or order in compliance with applicable law.

The new law also provides that in a mediation, certain  key principles of the process must be complied with. These include the  confidentiality and the without prejudice rule in respect of matters discussed at the mediation; the  rule that Mediators must be neutral and impartial; the party centric nature of the process that provides primacy to the wishes of the disputants including that it is they that determine the outcome and that a settlement is reached only if all disputants agree to the terms; the noncoercive role of the mediator whose duty is to facilitate and manage the process using mediation specific skills and techniques, but is debarred from imposing a decision. Although a settlement agreement is valid in law, provision is included to obtain a decree of court, based on the terms of the settlement. A mediated settlement agreement can be set aside on an application made to court, on specific limited grounds which are provided for, including that it is offensive to the public policy of the country. If the parties are unable to agree on a settlement, a certificate of non-settlement is issued. The provisions of the law are based on international best practices and principles articulated in the 1988 UN Mediation Convention  (the Singapore Convention) and the UNCITRAL model law.

The popularity of mediation has grown for its value in being time efficient, cost effective and party centric. Parties have control over the outcome and have the space to discuss their concerns, fears and interests and need never agree to settle unless fully satisfied that settlement terms address their interests. Disputants are free to walk out of a mediation process at any time, if dissatisfied with the progress. The discussions are confidential and a valuable feature is that the process offers an opportunity to reduce acrimony which is prevalent in most disputes, and to restore fractured relationships which is very important in family  and  business related disputes. This benefit and the prospects for governments to reduce the cost of the administration of justice, by using mediation,  is articulated in the preamble to the 2018 UN Convention on International Settlement Agreements Resulting from Mediation (2018) which states that the use of mediation results in significant benefits.

 Pursuant to the interest generated within the country regarding the value of using Mediation for commercial dispute resolution, and heralding what we like to see as the initial steps of a Mediation boom in the country, several positive advancements have taken place –

*    Parties have opted to include mediation in the dispute resolution clause in contracts;

*    Given that mediating disputes requires  very specialised techniques and skills, many professionals, including predominantly Lawyers, have engaged in training programmes offered by international training bodies that offer accreditation;

*    Trained Mediators are engaged in an effort to form themselves as a professional Organisation;

*    Mediation  Advocacy training programmes have been held to train Lawyers on their niche role in the mediation process. That role is distinctly different to that of a court Lawyer who’s obligations are centred on an adversarial approach where the dispute is adjudicated in terms of the law alone.  Hence lawyers need training to be useful within a non-adversarial process which is party centric and has a focus on reaching a settlement, based on the interests of disputants.

*    Sri Lanka enacted the Recognition and Enforcement of International Mediated Settlement Agreements Act No. 5 of 2024 (the UN Mediation Convention Act) and ratified the Convention becoming the 14th country to do so. Sri Lanka will be seen as an investor friendly country in respect of dispute resolution where mediation is used, since it offers an enforcement regime which is recognised universally.

*    The landmark determination of the Supreme Court (SC SD 22 of 2025) in the challenge by the Bar Association to the constitutionality of the Mediation (Civil and Commercial Disputes) Bill, found that none of the provisions of the Bill were unconstitutional and gave a judicial sign off to statutory provisions that seek to ensure that mediation services are provided in this country, in a disciplined manner in compliance with universally accepted standards.

*    Perhaps, inspired by the statutory obligation imposed on judges to attempt pretrial settlement of disputes, in terms of the Small Claims Court Act and the Small Claims Court Procedure Act (both of 2022) and the Civil Procedure Code provisions on Pretrial Conference and Pretrial Orders, 125 District Judges were recently trained (with support from the ADB) in Mediation. The training provided a dual benefit – it provided training in  skills that are required to settle disputes and equally importantly, provided a comprehensive understanding of how mediation will function when judges themselves refer disputes for settlement by private mediators.

*    Trained Mediators are already conducting mediations with success.

*    A not-for-profit guarantee company, the International ADR Centre – www.iadrc.lk ) was established in 2018  as a joint venture of the Ceylon Chamber of Commerce and the Institute for the Development of Commercial Law & Practice (ICLP) to promote ADR and is actively engaged in promoting mediation through training, disseminating information and creating awareness among stakeholders, including the business sector.   In addition to the International ADR Centre, “Udecide”  is a project that promotes training of mediators and other activities that enrich the mediation culture.

*    Commercial Mediation has been included in the Masters level programme at the Colombo University;

*    The Sri Lanka Law College offers a component on Mediation in the Post Attorney Diploma programme, which commenced recently.

The private sector was actively engaged in the drafting of the  Mediation Bill under the leadership of the International ADR Centre, which held many stakeholder consultations to obtain feedback from those that were conversant with the subject. The Centre had previously assisted the government to draft the UN Mediation Convention Act (Act No. 5 of 2024).

Several international Organisations that previously provided for resolution of disputes by arbitration, have provided for institutional rules to provide mediation services. These include WIPO and the ICC. Specifically, in relation to Investor State dispute resolution (ISDR), the  International Bar Association (IBA) adopted its  Mediation  Rules in 2012 and ICSID (of the World Bank group) adopted its Mediation Rules in 2022.  UNCITRAL, which is currently working on reforming  ISDR, promotes mediation, observing that the use of mediation could reduce the costs of ISDS and also preserve relationships between the investor and the State. UNCITRAL has formulated provisions on and Guidelines for, Mediation for investor state dispute resolution.

(To be continued)

by Dhara Wijayatilake
Attorney-at-Law; Former Secretary to the Ministry of Justice; Director and Secretary General of the International ADR Centre.



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Features

‘There are no private universities in Sri Lanka’ – some considerations for higher education reform

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Academics involved in education policy like to say that there is no such thing as a private university in Sri Lanka. The only ‘universities’ in the country are state universities; anything else offering degrees is a private higher education institution (HEI). This position is technically accurate. Yet, in the discourse and imagination of the public, private universities are very real – people teach in them, students register in them, families pay fees, and such degree holders enter job markets in Sri Lanka and outside.

For decades, activists concerned for public higher education have ignored or resisted looking at private HEIs, as if such scrutiny would taint them. Others have worked in both types of institutions, carrying practices from each to the other. The apex body governing state universities, the UGC, has, meanwhile, ignored the concept of conflict of interest and appointed individuals in private higher education in committees and leadership positions. It is unsurprising then that some of the ideologies informing private higher education appear in reform agendas in the state sector.

This is a good time then to consider the varying types of private HEIs around us, and to take a look at some of the issues within them in the hope that higher education reform agendas will include private, as well as state higher education.

What is a ‘private university’?

First, some clarifications. In the public imaginary, a ‘private university’ is typically an institution that provides a foreign or local degree for which the student makes a payment. But this broad classification encompasses a host of diverse institutions and types of degrees which I detail below.

The Non-State Higher Education Division (NSHE) of the Ministry of Education has recognised 295 degrees by 32 institutions. Most of these are private companies and include a handful of established, well-known private HEIs that are ‘university like’. The degrees are local degrees conferred by the institutions accredited by the NSHE Division. While private HEIs conferring local degrees must be accredited by the NSHE Division, there appears to be no legal consequence for not doing so. In addition, there are several permutations of the private degree that miss the net of this Division and the Standing Committee on Accreditation and Quality Assurance (SCAQA) that assists this Division.

For one, degrees conferred by foreign universities offered, via these same private HEIs, are not vetted by the NSHE Division. Secondly, there is a growing plethora of private HEIs which have either no physical presence locally or only a dubious presence. The University Grants Commission has notified the public, through their website, that foreign universities listed in the Commonwealth Universities Yearbook and the World Higher Education Database are recognised, but refrained from giving any other details – which degrees? Offered by what modes? These details are not known. Some of the foreign universities in the lists may be legitimate entities in their own land but the degrees conferred locally, in their name, may not adhere to curriculum or teaching specifications of the NSHE Division or the UGC.

Another troubling phenomenon is the ‘top up degree’, which appears to work on the same principle as that of a pre-paid mobile connection: if I have a Diploma or an HND of a sort, I am eligible to complete a course of study which provides me with a degree, usually from a foreign university. The idea that someone who does not initially qualify for a degree programme should be able to work their way towards one is a progressive notion. This is the concept that open and distance learning (ODL) was based on initially, but which is now sadly exploited. ODL models are expected to provide opportunity for learning for those who may be excluded from traditional learning institutions. In Sri Lanka, however, we have seen ODL become a marketplace offering easy to obtain, for-fee qualifications by institutions with little commitment to superior teaching and learning.

Finally, a perusal of the many types of private HEIs and their varied degrees bring to mind another question – how should the private degrees, provided by state institutions (that are not educational institutions), be regulated? Who should do so?

All of these create a host of problems for the public – for hopeful students and parents and trusting employers. For the higher education sector, recruitment of academic staff, too, has become difficult due to this plethora of ambiguous higher education qualifications, as I discussed in a previous Kuppi article (‘Recruiting academics to state universities’).

Some issues in private HEIs – a bellwether for change in state universities

In this second part of this article, I will discuss some aspects of work in private HEIs – albeit the more established institutions – given that such issues may appear in reform agendas in future.

Across state universities, all permanent staff of a specific category are paid according to the same criteria. The picture is not so clear when it comes to private HEIs since they are different entities legally, typically companies. Private HEIs have salary scales and financial incentives that are different to each other. The more established private HEIs reportedly have attractive renumeration packages, possibly a reason for academics of state universities migrating eagerly to such institutions during sabbatical years and on retirement. This may not of course be the case with other less established, or improperly registered HEIs of which we know little. Academic staff of these more accepted private HEIs seem to value the high financial remuneration they receive (in comparison to state universities) as something that makes their work rewarding.

Attractive remuneration is important to sustain the good life and is at times seen as the institution’s way of encouraging good work. Yet, this has implications for the future of the institution: to continue to deliver on promised financial packages, institutions must continue to have large profit margins. One strategy has been to enroll multiple cohorts of students per year, even up to three or four intakes per year. This can result in exploitative work conditions, since staff must cater to all these cohorts in that same year. If there is inadequate staff, employees are further burdened. On the other hand, if there is a sudden drop in enrolments (degrees can go out of fashion) unexpected layoffs occur. Similar to other sectors that employ short-term contract staff – including state universities – in private HEIs, too, individual teachers, who are on short term contracts that need regular renewal, can feel pressured to work under difficult or exploitative conditions.

At the same time, even in the more established private HEIs, work norms differ from those of state universities in that they include promotional work that keeps the institution’s name in the eye of the public. The Marketing (or similarly named) unit comes up in conversations as one of the most important departments. It appears to weigh in on decision-making related to the number of staff, the amount of re-sits per exams, and other pedagogically important matters. This is a worrying example of how financial rationales interfere with pedagogically or academically sound processes, resulting in problematic results in the classroom. On the plus side, junior colleagues, who had experience in both state and private HEIs, also felt that they faced less harassment in private HEIs – primarily due to the private HEIs ability to take swift action in reported cases of harassment. This is a real indictment on state institutions and their reluctance to address chronic issues of harassment in our universities.

Yet, while we hear much about problems in state universities, we hardly hear of problems that staff in private HEIs face. One rationale for a lack of public expressions by staff is that expressions of discontent might lead to trouble given the importance of reputation for private HEIs. The worry about reputational damage is a growing concern in state universities, too, as evidenced by social media policies and internal conversations on reputational damage, consequent to negative publicity. Institutional worries of reputational damage are harmful in the long run since these impact not only freedom of expression by student and staff, but also research that is possible in and about the education sector.

Some thoughts at the end…


A close look at the private higher education sector is important given its strong presence in the country. Impending reform needs to regulate this diverse array of higher education offerings in the private sector, as well as the state institutions that offer privately-funded options of higher education (a topic for a separate Kuppi on its own). It is time we carefully considered how to build a whole system of higher education out of this broken mess.

Kaushalya Perera is a senior lecturer at the University of Colombo.

Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.

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Ready for solo spotlight

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Nish Peiris: Excited about future plans

Singer Nish Peiris is set to take the next big step in her music journey.

The talented vocalist, who has been seen and heard in the scene here for a short while, and was also featured with the now-defunct band, Inner Vision, has announced that she will be fully committing to her solo career, after completing her degree this year.

“I’m finishing my degree this year, and after that I’ll be fully committing to my solo music career,” Nish told The Island.

“I’ve already got a few tours lined up for next year, so I’m really excited for what’s ahead.”

Fans, no doubt, will remember Nish for her smooth voice and stage presence, and the good news is that she is now ready to chart her own path and bring new music to audiences at home and abroad.

With tours already planned for 2027, the year 2026 promises to be an exciting year for the young artiste as she steps into the spotlight on her own.

We wish Nish every success in this new chapter!

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Exclusive musical evening for Sri Lankans in Toronto

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Toronto Ceymphony Live Band, with Sri Lankans doing the needful

While Sri Lankan music lovers, in Dubai, are eagerly looking forward to being a part of the action on Saturday, 25th July, with Rajiv Sebastian in the limelight, Sri Lankans, in Toronto, Canada, are equally excited and are anxiously awaiting the arrival of Sri Lanka’s famous singer/entertainer Sohan Weerasinghe.

Having done the needful with The X-Periments, the legendary performer has now embarked on an exciting new chapter – a solo career – and Toronto, Canada, will see him do the needful, on Friday, 31st July, 2026, from 8.00 pm to 12.00 am, at the Angus Glen Golf Club.

Sohan Weerasinghe: In Canada, and ready to do the needful on 31st July

Reports indicate that it’s a ‘sold out’ event – naturally with Sohan in the spotlight.

Gamini Hemalal: Creating all the excitement for Sri Lankans in Toronto

Having built his reputation through years of unforgettable performances, and hits that became part of our musical fabric, Sohan is ready to bring his own vision, sound, and stories directly to the audience, in Toronto, Canada, backed by the phenomenal Toronto Ceymphony Live Band.

Says Gamini Hemalal, who has been instrumental in reviving the Sri Lankan entertainment scene, in that part of the world:

“The countdown begins for the most exclusive musical event of the summer! Join us for a premium night of incredible music, elite hospitality, and a lavish buffet as the legendary Sohan Weerasinghe takes the stage live in Toronto!

“This is a high-end event, designed for those who appreciate exceptional entertainment and great food.”

Gamini, who is also a member of the Toronto Ceymphony Live Band, mentioned that it’s going to be an intimate musical evening with the celebrated Sohan Weerasinghe.

From packed auditoriums to intimate shows, Sohan continues to prove why he remains one of Sri Lanka’s most beloved entertainers.

For decades, Sohan Weerasinghe has been a household name in Sri Lankan entertainment.

Known for his captivating smooth voice and charismatic stage presence, Canada will experience it all on Friday, 31st July.

Next on the list of events, Gamini Hemal is working on, is Halloween night and he says “what we plan to do will be very interesting and unique … with a surprise guest star, as well!”

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