Wed, 17 Oct 2018

Case Closed: Mediation Offers Resolution For Most Cases in Sri Lanka's Legal System

Global Press Journal by Manori Wijesekera
03 Jan 2018, 20:34 GMT+10

KADUWELA, SRI LANKA - It's early in the day, but the long, spacious, rectangular classroom is already getting hot.

Wire nets cover small holes on the walls, letting in a breeze too light to be considered proper ventilation.

As a crowd of people convene inside the classroom at Sri Yasodara Maha Vidyalaya, a school in Kaduwela, a suburb located about 18 kilometers (11 miles) from Colombo, the capital of Sri Lanka, the energy in the room is anxious.

As the room fills, some people fidget on small chairs, while others pace.

The community mediation hearing, a process to resolve legal disputes, is about to begin.

At 9 a.m., Mallika Bandula, dressed in a white, cotton saree, takes to a raised stage. The waiting crowd directs their attention to her, chairwoman of the Kaduwela Mediation Board, which meets at the school every Saturday morning. A group of 25 mediation officers, also in dressed in white, join her on the stage.

Mediation officers listen to cases related to loan and lease defaults, during mediation at Sri Parakramabahu Maha Vidyalaya, a school in Colombo 5.

Manori Wijesekera, GPJ Sri Lanka

"In the courts, justice is served on paper, by the laws and the regulations," Shajehan says. "Here, it is justice served by the heart, where you make a decision that your heart and mind leads you to, a decision that you accept as your own, not one that is imposed on you."

Still, disputing parties often do not know how the mediation process works and are not aware that they can choose it instead of a court hearing, says Bandula, the chairwoman. Sometimes, parties do not respond to summonses from the mediation board to attend hearings because the boards do not issue punishments like courts, she says.

Still, the mediation boards offer a swift and inexpensive form of justice.

Because mediation boards are free of charge, Yapa says, they offer justice to Sri Lankans who may not be able afford lengthy court processes. A minor dispute involving a physical assault, for example, may require up to six or seven court hearings to reach a verdict and could cost up to 40,000 Sri Lankan rupees ($260), he says.

Though some prefer mediation because it is fast and cost-effective, Shajehan says that it is complementary to Sri Lanka's courts system: "Both, together, work well to deliver an effective justice system."

Global Press Journal spoke with two women who participated in the community mediation process facilitated by volunteer officers from their local mediation boards. Though they did not incur expenses, they say that they were skeptical of the process, not knowing how it worked.

Here are their stories:

Renuka Wimalasena: Justice for My Son

Just as Renuka Wimalasena was finishing washing the lunch dishes, she received a troubling phone call from a neighbor in Kaduwela - her son had been attacked near their house. In distress, she rushed to the scene, where she found her 17-year-old son bleeding from a head wound and surrounded by several boys and men, one brandishing a wooden pole and another a knife.

She says her first priority was to get her son to the local hospital. The next was to pursue justice for her son. Later that day, Wimalasena and her husband filed a complaint at the local police station against Ajith Bandara and his son, two of the alleged perpetrators, according to witnesses.

A few weeks later, Wimalasena, Bandara and their sons attended a hearing at the magistrate's court in Kaduwela. But the judge's ruling was not what Wimalasena expected.

The disputing parties were referred to a local mediation board.

After nearly two hours of discussion, Ajith Bandara's son (left) signs a document with the details of the resolution reached during mediation at Sri Yasodara Maha Vidyalaya, a school in Kaduwela.

Manori Wijesekera, GPJ Sri Lanka

In an effort to manage a backlog of court cases, judges refer persons involved in minor civil and criminal disputes to mediation boards.

There is a well-documented shortage of judges in Sri Lanka. In May, the government increased the number of judges, as pending court cases amounted to nearly 28,000, with only 75 judges to try these cases. Now there are 85 judges.

Unconvinced that mediation would render a fair resolution, Wimalasena decided to attend the hearing in September with her son and daughter anyway.

They marched into a classroom at the Sri Yasodara Maha Vidyalaya school where three members of the Kaduwela Mediation Board, including A. D. Nandasiri, were preparing to facilitate the hearing.

Bandara and son, the accused, and seven of their family members followed.

Before the hearing began, Wimalasena and Bandara started yelling at each other. Nandasiri, the mediator, told them to remain silent until they were called upon to speak.

Wimalasena says she wanted Bandara's son to ask for forgiveness. About 45 minutes into mediation, her tone became milder than it was before. Discussions between the two parties and their families carried on. Nandasiri and his colleagues interjected occasionally with questions.

After nearly two hours, a resolution was reached.

Bandara and his son apologized for the physical assault and Wimalasena agreed to stop threatening to have Bandara arrested and jailed, a decision she said she did not think she would make.

"I wanted to see the people who attacked my child punished by law, and I wasn't very sure if this mediation board was the answer. In a court, they would get punished by the judge," she said.

It wasn't the result she was expecting, but Wimalasena acknowledges that pursuing a formal court case wouldn't have been feasible for her family.

"Listening to the officers, I realized that if this matter goes back to courts, then there will be

a winner and a loser," she says.

If her son won the case in a court, she says Bandara's family would always resent her family because their son would have been punished.

The resolution was recorded on a standardized form, used by mediation officers to record resolutions reached during hearings, and signed by the disputing parties. An extra copy was sent to the magistrate's court to notify the judge that the dispute was resolved and the criminal case could be closed.

W.K. Saranga: A Second Chance at Loan Repayment

While some mediations focus on civil disputes between two parties, many of the cases heard by the boards are related to failure to pay back commercial loans.

"I thought I would end up in jail today," says W. K. Saranga, with tears rolling down her cheeks. "At the very least, I thought I would be taken to a police station and remanded [charged]."

Saranga received a loan of 60,000 rupees ($391) in 2012 from People's Microfinance Ltd, a finance company. She used it to buy some equipment for her husband's cookware workshop. T. A. Nuwan Darshana, a senior officer with People's Microfinance Ltd, says Saranga's loan request was approved because the couple had previously received and repaid two loans from a cooperative microfinance scheme.

W. K. Saranga (right) and her husband, D. M. Upul Asanka (left), participate in mediation with a senior officer representing People's Microfinance Ltd. Saranga was summoned to the mediation hearing by the Thimbirigasyaya Mediation Board because she was unable to repay a loan that she received in 2012.

Manori Wijesekera, GPJ Sri Lanka

But a year later, her husband's business folded, Saranga says.

"We had no income for months," she says.

Then, their small, makeshift home in Mattakkuliya flooded in 2015 and again in 2016. Saranga says they lost all their belongings and had to rebuild their lives each time.

During the mediation, she admitted to ignoring multiple communications from the company since she stopped repaying her loan in 2014. So, when the company referred the case to a local mediation board, Saranga says she decided to attend, hoping she could beg for mercy.

Saranga, her husband and their 4-year old son came to the mediation hearing at a school in Thimbirigasyaya, in Colombo 5, one of the capital's 15 districts. They waited for more than an hour in a small classroom with a dozen chairs, filled with people clutching sheets of paper to be reviewed in the hearings.

Since 2016, more than 50 percent of national referrals of mediation cases received by various mediation boards are from financial institutions regarding loan defaults. Similarly, the community mediation board in Thimbirigasyaya hears 200 disputes each week, and at least 120 of them are referred by financial institutions, according to the board's most recent records .

At the time of the hearing in early November, Saranga's debt had grown to 138,000 rupees ($900). During mediation, Darshana offered to waive the interest accrued, a sum of 107,000 rupees ($700), if Saranga could pay the initial loan amount of 60,000 rupees within a month.

But she explained that it was impossible to do so without taking out another loan. Darshana, Saranga and mediation officers went back and forth, then an agreement was made: Saranga would pay 100,000 rupees instead of 138,000 rupees, in monthly installments of 3,000 rupees ($20).

But if she misses one monthly payment, the case will be referred to a court, which is common when terms of a mediated resolution are violated.

Saranga's husband works as a bus conductor now and earns about 1,200 rupees ($7.81) a day. Though it will take them 33 months to repay the loan, Saranga says that she is grateful and their family is prioritizing repayment.

Manori Wijesekera, GPJ, translated seven interviews from Sinhala.

Sign up for Nepal News

a daily newsletter full of things to discuss over drinks.and the great thing is that it's on the house!