Community Mediation as a Hybrid Practice: The Case of Mediation Boards in Sri Lanka, Sepalika Welikala
Despite these cautions and criticisms, ADR has become a prominent part of the official dispute resolution process in most countries in Asia - and throughÂout the world. The following article by Sepalika Welikala illustrates how law and society researchers have attempted to study ADR as a now-familiar feature of the legal landscape.
A news headline that was widely publicized in Sri Lanka in 2013 was the case of a 13-year-old schoolgirl being arrested and produced in a magistrates' court for stealing eight coconuts from a neighbour's garden. The girl claimed that she stole the coconuts because her family was unable to provide the Rs. 800 (approximately US$6) contribution demanded by her school towards painting the classrooms. This case was discussed at various fora as to how a minor was arrested, produced in a magistrates' court, and released on bail when the police should have followed proper legal procedure by referring the case to the local Mediation Board (MB). The legal blunder committed by the police and the local magistrate brought to light a socio-legal entity known as the MB that exists in contemporary Sri Lankan society as a mechanism to resolve local disputes. They were established by an Act of Parliament and at present there are more than 300 of these state-sponsored community mediation proÂgrammes that were conceptualized and modelled along the lines of Alternative Dispute Resolution (ADR) to function in parallel with the formal courts of law. The MBs were established as an alternative mechanism to the formal courts on the promise of being more effective and efficient by allowing the local community to settle their own disputes. Yet the confusion highÂlighted in the coconut-stealing case suggests that MBs occupy an ambiguous space within the local dispute resolution system, raising questions that need to be examined from a sociocultural perspective such as: How do individuals engage with the MB? Where is the MB located conceptually within society? Is it within formal laws or popular justice? Can this be seen as a representation of the plural nature of legal ordering where law is defined broadly as a normative system? How do the different normative systems interact? [...]
The concept of community mediation has a long history in Sri Lanka going back many decades, if not centuries.
There are records of local-level dispute settlement through the Gamsabha (village tribunal/council) system that can be traced as far back as the fifth century BC, referring mostly to the preÂcolonial Sinhala village organizations. The Gamsabha was an adjudicatory body chaired by the village headman and its membership was drawn from the traditional rural leadership. After a period of decline beginning with the Dutch period, the British tried to replicate a similar local dispute settlement mechanism through the Village Communities Ordinance of 1871. Although these Village Tribunals were seen by British officials as “resurrecting ancient village institutions,” as they maintained the status quo vis-it-vis the powers of the traditional elite, these were opposed by other upwardly mobile commu- nities.1 In the post-independence era, “obsession with the Gamsabhavas continued to haunt the post-independence legal reformists”[96] [97] and another attempt was made in the form of the Conciliation Boards through the Conciliation Boards Act No. 10 of 1958. The Conciliation Boards can be seen as a precursor to the present MBs. In addition, as described by Tiruchelvam, the government's foray into popular tribunals in the postÂindependence Sri Lanka was to create “social consciousness” that was consistÂent with the socialist development ideology of the governing elite. By deÂprofessionalizing the form and process of conflict resolution, the Conciliation Boards were expected to encourage the participation of the ordinary people in its work. However, they failed to achieve their objectives and instead have displayed a close resemblance to the Gamsabha that sought to settle disputes through the normative standards of the existing social order. The Conciliation Boards, though not intended, comprised the village leadership and elites who used social pressure to mediate between disputants by applying the values and norms of the existing social structure. Due partly to the politicization of the mediation process and lack of competent mediators, the Conciliation Boards became less effective and were rejected by the local communities. As a result, the Conciliation Boards Act was repealed in 1978. However, in yet another attempt to formally revive the idea of community mediation, the current MBs were established ten years later with the objective of “facilitating the voluntary settlement of minor disputes using interest-based mediation.”[98] The trajectory of the concept of community mediation in Sri Lankan society thus shows its unique position within the judicial landscape.Currently, MBs exist in almost all parts of the island and is believed to be the third largest mediation system in the world. As at December 2013, there were 324 such MBs in operation, with over 7,000 trained mediators actively engaged in the mediation process. Officially, MBs function under the Ministry of Justice and are governed by the Mediation Boards Act No. 72 of 1988, amended by Act No. 15 of 1997, Act No. 21 of 2003, and Act No. 7 of 2011. The Act defines the duties of the MB as:
by all lawful means to endeavour to bring the disputants to an amicable settlement and to remove, with their consent and wherever practicable, the real cause of grievance between them so as to prevent a recurrence of the dispute, or offence. [Section 10]
The primary objective of MBs was to offer an alternative mechanism of dispute resolution for local and minor conflicts outside the framework of the overburdened state legal system. They were thus expected to ease the case-load placed on the courts and to improve people's access to justice by offering a locally mediated settlement. [...]
From the physical location of the MB to the actual mediation sessions by individual panels, there are many instances of structured formalities that mimic the formal legal system, as Merry has discussed in her analysis of ADR and popular justice.[99] This replication is evident in the ritualistic start to the MB as well as in the physical layout where clear boundaries are maintained between the mediators and disputants similar to a court of law.
It also extends to the individual panels as well, where mediators and disputants sit on opposite sides with mediators directing the process. According to the mediators' training manual, the only mention about seating is that there should be adequate space between the disputants in order to prevent any tension, and also that mediators should maintain equal distance from the disputing parties. However, in the MB, there is clear maintenance and133 reinforcement of the social differentiation which can be translated as the power differentials that exist in the mediation process.
The physical layout and the operational aspects of the MB clearly illustrate the duality that exists in terms of formal and informal protocol while reinforcing the existing social differentiation and power relations of the community. [...]
When mediators are appointed by the Mediation Board Commission, they are given formal training in mediation. According to the training manual, mediation is seen as positive social work based on the principles of selfÂdetermination, co-operation, respect, justice, equity, respect, empowerment, and flexibility. The mediators are expected to follow certain methods and techniques of dispute resolution in keeping with the principles mentioned above. However, in actual practice, the mediators use various techniques such as social pressure based on values and norms existing in society to conform disputants to compromise on a settlement. For example, the following dispute clearly shows the use of social pressure to conform to the values held by the mediators in trying to reach a compromise.
The dispute involved a marital issue between 27-year-old Kapila and his 18- year-old wife, Sonali, who has left him and now lives with her mother. The dispute was referred to the MB by the police on a harassment complaint made by Sonali's mother, Pushpa, who claims that Kapila was harassing Sonali, demanding that she return to him with their child.
Kapila on the other hand claims that Pushpa is turning Sonali against him.The panel listened to both parties, including Pushpa, who was clearly angry with Kapila for “getting Sonali pregnant and ruining her future.” There was a lot of argument between Pushpa and Kapila and the mediators constantly asked the parties to stay calm and discuss the matter in a “civilized” manner. When Sonali was asked to give her views, she said she does not want to return to Kapila and wished to stay with her mother. The panel however tried to persuade her to return to Kapila, as there is a child involved. They also reminded Sonali repeatedly that society will not look at her favourably if she separates from her husband. The panel made it sound as if Sonali has no choice and that she should return to Kapila with their child. The panel also asked Pushpa to let Sonali and Kapila decide what they want to do. After a lengthy discussion, the mediators asked both parties to come back in two weeks for another session. In the meantime, the parties were asked to think about the situation seriously and try to come to some reconciliation.
This application of social pressure is perhaps reflective of the gender bias that exists in society. The rights of Sonali were not considered by the mediators, who approached the dispute from the normative standard of the local comÂmunity. Sonali's rights were almost non-existent in the discussions. The gender dimension of community mediation in Sri Lanka as discussed by Jayasundere and Valters shows that mediators' desire to settle disputes someÂtimes discriminates against women, since they impose their interpretation of gender equality and status of women in society.[100] This could in turn discriminÂate against women who seek mediation under great social barriers. In the case discussed above, the mediators' own gender bias is evident when they refused to acknowledge Sonali's wish to separate from her husband. By referring to the adverse reactions by the community towards such situations, the mediators used social pressure as a means to reach a compromise in the dispute.
[...]The rhetoric of anti-formal courts is used widely by mediators in persuading disputing parties to compromise. This is often presented as the dichotomy between formal and informal mechanisms of settling disputes. In the case below, mediators express their views on the efficiency and effectiveness of the mediation process in opposition to the formal courts of law.
The parties involved were a father and son (Ravi), and another young male (Namal). The parties are from adjoining villages. The dispute was referred to the MB from the police as it was a case of assault complained by the first party.
Ravi said he went to see a musical show in his village where Namal was present. During the show, a fight broke out and, as Ravi was injured, he went to the police to make a complaint against Namal who was involved in the fight. However, according to Namal, he was not directly involved and that there were about 50 others involved in the fight. Namal claims that he has been unfairly singled out.
The panel explained that, if this goes to courts, the parties will have to spend a lot of money and that it would be better to settle it amicably there. Both Ravi and Namal were willing to settle the case and were therefore issued certificates of settlement. The panel advised them to stay out of fights and that it would cost them a lot of money if these disputes are taken to courts.
In a dispute involving a husband and wife, the mediators yet again attempt to persuade the aggrieved party to compromise instead of proceeding with a divorce. The mediators in this instance intervened by advising against divorce, saying it will be a tedious legal process.
The first party in the dispute was a 34-year-old Kala who complained to the police about her husband Piyal who had assaulted her. Their pre-teenage son was also present, but the panel asked him to wait outside the room.
While giving her side of the story, Kala got hysterical, saying she has to endure physical assault by her husband every time he gets drunk. The panel tried to calm her down while Piyal admitted to his misbehaviour. The mediators told Piyal that the fault is entirely with him and that he needs to change his behaviour. However, Kala was adamant that she wants to initiate divorce proceedings and that she needs the non-settlement certificate for the assault case. The panel advised Kala that a divorce is a tedious process, going through courts and lawyers and that, since there is a child between them, she should try to reconcile with Piyal. However, even after repeated attempts by the panel to dissuade Kala from proceeding to courts, she was not willing to compromise. The panel told her that any case in the courts is cumbersome. They even called the son inside in an attempt to get Kala to compromise. Yet there was no compromise on her part. [...]
Conclusion
Community mediation in Sri Lanka as a form of ADR exists as a hybrid practice that combines elements of formal procedures with informal social processes. [...] The mediation setting involved the use of symbols, ideologies, and procedures resembling the formal legal system. There is replication or reproduction of the formal courtroom setting with clear demarcation drawn between the mediators and disputants. However, in keeping with the ideology of popular justice and non-adversarial dispute resolution, the members of the Board are individuals without any legal background whose only qualification to be a mediator is his/her social standing within the community. The setting therefore represents an amalgamation of different normative orders. In addÂition, the process of mediation also can be seen as a conflation of both systems. For instance, the conceptual space within which mediators and disputants operate is context-specific and based on how mediators define the situations.
Yet, the physical setting and the manner in which the mediators inquire and position themselves vis-a-vis the disputants show a tendency towards the formal legal procedures. This can also be seen as a marker of power inconÂgruence within the mediation setting. Even though the relationship between mediators and disputants seem straightforward, it can be discerned from the disputes presented that this too is fluid and context-dependent, borrowing from different normative systems. Moreover, the mediation process as seen in the disputes uses social pressure to get the disputing parties to compromise, thereby giving legitimacy to the bargaining process. The mediators' desire to settle disputes by imposing a compromise theoretically contradicts the prinÂciples of community mediation as espoused by the ADR movement. Yet, by limiting the number of times disputants are permitted to seek mediation, the MB clearly sets their boundaries of operation. The MB in H therefore repreÂsents a duality in both its setting and procedure where the formal legal system and the local normative order are fused together to construct an alternative which can be seen as a hybrid practice.