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Manual for Mediators - filling a gap in commercial mediation PDF Print E-mail
Thursday, 19 September 2019 10:58

"It is not possible to learn the art of mediation from a book. However, a manual which shows what basic principles to follow and how to prepare yourself to be a mediator could be valuable." The introduction to Franklyn Amerasinghe’s latest publication to be launched soon- Manual for Mediators thus sets the tone to the mine of information on commercial mediation, the manual offers among its pages. Although not a new concept to our country, the use of mediation in commercial disputes, however, has been underutilized as Amerasinghe, one time Director General of the Employers’ Federation of Ceylon (EFC) and subsequently a member of the International Labour Organization (ILO) tells the Sunday Island. The lawyer cum author with several valuable publications to his credit, Amerasinghe now serves the Arbitration Centre of the Institute for the Development of Commercial Law & Practice (ICLP) of which he is a Director.

Significantly, Manual for Mediators is available to reader in the wake of Sri Lanka signing the Singapore Convention on Mediation last month. On August 8, 46 countries, including the United States and China, signed a new international treaty on mediation. Prime Minister of Singapore Lee Hsien Loong described the instrument as a "powerful statement in support of multilateralism". The new treaty will enable the enforcement of mediated settlement agreements among the signatory countries, encouraging States and Corporates to use the speedy and harmonious process of mediation to resolve differences.

The Singapore Convention on Mediation, crafted by many nations sitting in Committee together was originally formulated and endorsed in 2018 under the aegis of the United Nations Commission on International Trade Law (UNCITRAL). More than 1,500 delegates from more than seventy countries and UN Agencies attended the Singapore Convention Signing Ceremony and Conference, which was hosted by the Singapore Ministry of Law and the UNICTRAL. Sri Lanka was represented at this event by the Minister of Justice, Thalatha Atukorale, the Solicitor General Dilrukshi Wickramasinghe and representatives of the Ceylon Chamber of Commerce and Institute for the Development of Commercial Law & Practice.

The Mediation Convention, as the Singapore Prime Minister observed at the event , is seen as completing a three pronged approach – the other two initiatives introduced by the New York and Hague Conventions - to achieving the Rule of Law and giving commerce the certainty that is needed.

As the Deputy Prime Minister of Singapore, Tharman Shanmugaratnam opined: "it will help enhance cross border enforceability of mediated settlement and businesses will benefit with greater certainty and assurance".

The Secretary General of UNCITRAL Anna Joubin Bret in a message to the event observed that that the Convention which was adopted originally in December 2018 by the General Assembly of the UN, is an instrument to "facilitate international trade and to promote mediation as an alternative method of resolving disputes. As a binding instrument, it is expected to bring certainty and stability to the international framework on mediation, thereby contributing to the United Nations Sustainable Development goals, mainly Goal 16 on promoting just, peaceful and inclusive societies".

Sri Lanka which signed the Convention has intentions of providing facilities which will make it an international Centre for Alternative Dispute Resolution (ADR) initiatives. The Convention is also promoting the use of mediation as a speedy, practical, and culturally acceptable, form of dispute settlement for local disputes as well.

"The advantage of mediation in settling disputes of a commercial nature is that it helps parties to develop lasting relationships based on finding solutions to their problems in a consensual manner facilitated by the expertise provided by a trained mediator," says Amerasinghe adding that the Commercial Law & Development Programme of the US Department of Commerce is providing support to create a trained body of mediators for the ADR Centre. The local ADR Centre has formulated rules for mediation and also drafted new rules for arbitration to address some criticisms of the process currently available. One criticism of the existing process of commercial arbitration is its "tardiness caused by a reliance on quasi legal procedures adopted."

The ADR initiatives all over the world are regarded as being in transition all the while, as new developments in technology and the way in which business is done require innovative thinking. "The use of techniques such as ‘hybrid processes’ designed to marry mediation and arbitration are practiced quite beneficially in some advanced countries. Some have even moved to ‘on line’ case management and the use of artificial intelligence in an appropriate manner to aid mediation. The opportunities for developing responses to the dispute settlement needs of corporate entities are immense and the opportunities for Sri Lanka to use its facilities to become a Centre like Singapore for arbitration and mediation need to be tapped into," maintains Amerasinghe who goes onto add that the opportunities for local organizations to make use of the facilities provided by the ADR Centre will help to create more certainty in relation to their business transactions.

The Manual for Mediators is meant to assist mediators with some reflections on the thinking process and to give some practical guidance to them on how to select a process which will work, says the author. "A good mediator is one who knows how to be objective and to adapt what he knows to suit the particular dispute. This in turn requires certain innate attributes which a mediator should be possessed of," says Amerasinghe who has 40 years of experience in settling disputes and helping prevent them.

The manual, as Dr. K. Kanag-Isvaran PC, Chairman of the Chamber of Commerce (CCC) and ICLP-ADR Centre notes in his Foreword , ‘will be immensely beneficial to those who wish to be professional mediators not only in the formal mediation process but also in other types of dispute resolution that require the skills of a mediator.’ The legal luminary further surmises that ‘the content of the manual is a testament to the author’s vast experience in the field of employment disputes and the negotiation of very sensitive collective agreements.’ As a first-time publication in the field of commercial mediation here at home, the publication is also to serve as a valuable resource for mediators in the country, he notes further.

The manual opens on an interesting note alluding to Willam Ury’s (the author of ‘Getting to Yes’ and numerous other book on conflict settlement) words, ‘we tend to forget what the simplest of societies on earth have long known; namely, that every conflict is actually three sides. No dispute takes place in a vacuum. There are always others around- relatives, neighbours, allies, neutrals, friends or onlookers. Every conflict occurs within a community that constitutes the ‘third side’ of any dispute’. The author then navigates through multiple aspects of mediation in a lucid, easy-to-grasp tone replete with anecdotes and citations from an assortment of authorities.

The proceeds from the sale of this valuable manual priced at Rs.1500/= will be channeled towards the future activities of the CCC-ICLP ADR Centre and is to be formally launched soon.


by Randima Attygalle 


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Last Updated on Friday, 27 September 2019 12:20

The EMPFED -Third Issue - June 2020