SPECIAL MEDIATION

WHAT IS SPECIAL MEDIATION?

Special mediation refers to the mediation of disputes that fall under certain “special” categories as prescribed by the law. This vein of mediation differs only marginally to community mediation in that the differences lie with respect to its set-up and process.

The Mediation (Special Categories of Disputes) Act No. 21 of 2003 is the legislative rock upon which special mediation is built and provides for the establishment of mediation boards for the settlement of special categories of disputes. These special categories are determined by the Minister of Justice by Order published in the Gazette.

Special mediation as a concept was born in recognition of the need to provide access to justice in relation to disputes stemming from social and economic issues. It was also envisioned to address the gap in terms of facilitating disputes between private parties and the State.

SPECIAL MEDIATION BOARDS

Special Mediation Boards were established by virtue of the Mediation (Special Categories of Disputes) Act No. 21 of 2003. The Minister of Justice determines the special categories, and in doing so he is obliged to consider the need for meaningful dispute resolution in relation to social and economic issues. The Minister is further mandated to specify the area or areas (referred to as the “Special Mediation Board Area”) within which the settlement of disputes is to be carried out in respect of any one or more of the categories of disputes specified in the Gazette. Special Boards can be established for a specific time period, if and when necessary.

Special mediation boards are comprised of mediators who are appointed on the basis of expertise on subject matter, and the special mediation board area that they subscribe to. In the context of special mediation, members once selected and trained are regarded as public servants and remunerated for their service. Mediators upon selection will continue to serve for a period of 3 years and are eligible for reappointment.

The mediation process differs marginally to that of community mediation. A disputant may submit a written application to the Special Mediation Board citing his/her grievance. The Board is mandated to notify all parties to the dispute, request witnesses to be present and documents to be presented, convene mediation sessions, and get special expertise and advice when necessary. This provides for a margin of appreciation, wherein the Board can seek advice from a person wielding expertise over the subject matter of the dispute. Special Boards can also seek the assistance of a Gram Niladhari to assist the mediation proceedings.

Settlement of disputes under Special Mediation mirrors that of community mediation in that successful dispute resolution must be supplemented with a certificate of settlement; whilst an unsuccessful one is issued a certificate of non-settlement. The latter provides sufficient base to proceed with litigation.

SPECIAL CATEGORIES OF DISPUTES

The Minister of Justice is mandated by the law to determine special categories of disputes which are eligible to be brought under the purview of mediation. The following categories have been determined:-

Land disputes were a common occurrence and came within the purview of community mediation. However, an increase in the number of land disputes between the citizens and the State, followed by conflicts as to land ownership in the North & East warranted the establishment of special land mediation boards to settle land disputes.

There are sixteen (16) Land Special Mediation Boards (Land SMBs) operating at present in the districts of Jaffna, Kilinochchi, Vavuniya, Mannar, Mullaitivu, Batticaloa, Trincomalee, Ampara, Anuradhapura, Polonnaruwa, Hambantota, Gampaha, Colombo, Kurunegala, Kandy and Rathnapura. In 2021, legislation was passed to establish the financial threshold for land disputes at any value less than one million rupees (Rs. 1,000,000).

These Special Mediation Boards for land disputes also provide an additional advantage as they espouse a system that generates more formal settlements via legal or administrative mechanisms. Unsettled disputes could be referred by the Land Mediation Boards to other decision-making authorities as well.

Financial disputes, much like land disputes fell within the legislative purview of community mediation. However, an increase in the number and type of financial disputes (i.e. disputes between citizens and other institutions of varying socio-economic backgrounds) raised pertinent questions as to whether Community Mediation Boards were overstepping their pro-citizen mandate by addressing them. 

The Ministry of Justice, at the request of the Mediation Boards Commission took the initiative to set up Special Mediation Boards for financial disputes in Sri Lanka. Special Mediation Boards (Financial) are expected to be set-up in six districts namely Colombo, Gampaha, Kandy, Anuradhapura, Polonnaruwa and Monaragala; and they have been vested with jurisdiction to hear and mediate financial disputes valued at less than one million rupees (Rs. 1,000,000.00). This does not however, exclude disputes exceeding this threshold from voluntary referral to mediation.

The extent of damage wrought by the Tsunami that struck Sri Lanka in 2004 was exponential. In addition to the more immediate harm caused (such as death and destruction), the Tsunami also created pathways for detriment in the long-term. Extensive property damage, loss of wealth and debt were some of the many issues faced by direct and indirect victims of the natural disaster. Most of the grievances harboured by the citizens were directed against public officials, and such matters could not be settled by the Community Mediation Boards.

Therefore, by virtue of the Mediation (Special Categories of Disputes) Act No. 21 of 2003, special mediation boards were set up in 2005, to facilitate the settlement of disputes in relation to debt, damage or demand that arose as a result of the Tsunami.

Thirteen (13) administrative districts were identified for the establishment of the Special Mediation Boards. These boards flaunt jurisdiction to mediate and settle disputes below a monetary threshold of five hundred thousand (Rs. 500,000.00). Disputes below this financial ceiling had to go through a mandatory mediation process prior to initiating legal action in Court.

The grievances of migrant workers in relation to their employment procedure were often addressed by the Sri Lanka Bureau of Foreign Employment, and on occasion by the Community Mediation Boards. Sri Lanka National Labour Migration Policy underscored the need for Special Mediation Boards to be set up in this regard. 

In 2018, the first Special Mediation Board to address disputes faced by migrant workers and their families in Sri Lanka was established in Kurunegala. The Board has jurisdiction to hear, mediate and settle a range of disputes in relation to children’s education and welfare maintenance (by family members of migrant workers), criminal activities during the pre- departure process and any and all issues faced on return. Disputes below the financial threshold of one million rupees (Rs. 1,000,000.00) must be referred to the special mediation board mandatorily.