De-mystifying mediation for dispute resolution - II

Reference by courts to mediation is a universally accepted phenomenon.

- BY DHARA WIJAYATILAKE, Attorney at Law, Director and Secretary General of the International ADR Center, Sri Lanka; former Secretary to the Ministry of Justice.

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-courtbased 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 rights and wrongs and has a focus on assisting parties to identify and satisfy their concerns.