Should we mediate before litigate?

By Saranee Gunathilaka 

‘Life is not a bed of roses’ is a phrase that comes to mind whenever we encounter disputes. Sadly, disputes cost us many years from our lives, due to the seemingly unavoidable bitterness attached to each dispute, irrespective of magnitude. However, if there was a harmonious alternative, one that might even leave you richer, would you take it?

Whenever we encounter a ‘dispute’, ‘difference of opinion’ or ‘problem’, our first reaction of is to find “a way to get out of it as quickly as possible”. However most of the time we end up sacrificing our entire life, or a substantial portion of it, trying to rid of it or win over it. 

In Sri Lanka, litigation is the most opted mode of dispute resolution, even if thwarted by the difficulties embedded within the very process itself. Prolonged and expensive, the process of litigation often leaves us feeling helpless and in a worse state, especially if defeated. Even if we succeed, the lost years, vast amounts of money spent and most importantly the sheer distress and trauma met throughout the bitter process, can render victory rather hollow and futile. 

It is due to this very reason that we are now seeing a trend in judges encouraging parties to settle their cases, outside of court, where it has been dragging along for many years. This practice suggests that most disputes could be settled earlier, saving money, time, mental health and interests of parties, instead of stagnating in courts, only to be finally settled on the instructions of the judges. So why not explore alternate ways of getting the matter amicably settled before investing money and time on a heavy load of legal files? 

“Time cannot be bought”, is what we often hear adults say to us during childhood. Yet as adults, when we encounter a dispute, most of us will rush to court seeking relief. Do we ever stop to think and ask ourselves, is there is a better way to resolve our dispute? One that respects our time, money, health and most importantly our interests?

As a young attorney at law in the Sri Lankan judicial system, I believe that these things can be achieved and that Mediation as opposed to litigation should be explored more by the public as a first mode of dispute resolution. 

Unfortunately, it is unfamiliarity with the process of mediation that compels disputants in Sri Lanka to opt for litigation as the one and only mode of dispute resolution for almost every dispute they face in their day today lives.  In most European countries, including the United Kingdom and the United States, mediation has been identified as an important first step towards dispute resolution. Even our Indian neighbours are moving towards expanding the practice of professional mediation in their country. Is it not time that we also stopped to think and ask the vital question ‘should we mediate before we litigate?’

Mediation is an amicable mode of dispute resolution, facilitated by a neutral third party, i.e. a mediator, where the parties to a dispute, with the help of the mediator move away from their positions relating to past (i.e. right and wrong, did and didn’t, good and bad) and shift towards the identification and realisation of their present and future interests. 

“Life is short”, no one will argue with this adage. Yet how many of us are willing to let go of the past and concentrate on present and future? In mediation, this is exactly what we can hope to achieve, where we learn from our past and design our own present and futures, and in the process not place ourselves at the hands of a third-party judge or arbitrator. 

The mediator, in a non-judgemental fashion, will help us identify the underlying issues and interests attached to our own dispute and to come up with our own creative solutions, whilst preserving our good relationship with our disputant, which could otherwise lead to lifetime of hatred or even beyond. 

Is it the community mediation boards that we are talking about right now? It is of course a way of conducting mediation, but it is not always so. Professional mediation is practiced and used all around the world in many types of disputes starting from minor disputes to commercial disputes involving billions and trillions of dollars. Not just small entities but even multi-national companies use mediation as their first mode of dispute resolution due its high productivity and efficacy as opposed to litigation. Yet in Sri Lanka we only know of community mediation, which itself has come under much criticism for becoming an increasingly coerced choice for disputants. 

In short, mediation can save you time, money and health.  It will get you an outcome that you can live with and let you and your opponent walk away happy with a win-win solution. Litigation meanwhile will take away the best part of your life, wealth, health, good name, goals and your dreams. So, why not try mediation first and save litigation or arbitration as the second and last option to solve your dispute?

[Saranee Gunathilaka is an Attorney-at-Law working at the Supreme court of Sri Lanka, Legal Researcher and a Lecturer. She is currently reading for her Masters in Human Rights and Democratisation (University of Colombo), an accredited Commercial Mediator and Negotiator and a founding Youth committee member of the Young Peacemakers of Sri Lanka – Peer mediation group, an initiative of Oxford Psychometrics (UK).]