By Jolly Somasundram –
“Community Mediation: A Just Alternative? Expectations and Experiences of Community Mediation Boards in the Northern Province” – By Mohamed Munas and Gayathri Lokuge. – Published by “The Centre for Poverty Analysis (CEPA)” – (46pgs). 31 March 2016. – (CEPA Working Paper Series No 21- 2016)
Reviewed By: Jolly Somasundram
Civil Society Emperor, CEPA, Has No Clothes (Parturiunt CEPA nascetur ridiculus mus: CEPA laboured forth and produced a ridiculous mouse.)
“Two disputants agreed to visit the village sage, seeking mediation on their bitter dispute. He listened patiently to both. At the end, addressing one, the mediator said the disputant was right. Turning to the other, the mediator said that he too was right. The watching wife asked how, both could be right at the same time. The mediator answered, ‘you too are right’ ”.
Mediation is a voluntary process in which an individual or group, helps people in conflict, to negotiate tangible and mutually acceptable agreements which resolve their differences. The first mediator in Sri Lanka was The Buddha, who visited her on three occasions, to successfully mediate three separate disputes. Community Mediation Boards (CMBs), dealing with community (group) based alternative dispute resolution mechanisms- as against judge (individual) based dispute resolution mechanisms- were set up in 1988. After Independence, governments addressed the same social issue. In 1958, it got enacted the Reconciliation Boards Act No 10 with amending Act 12 of 1963, under which Sama Mandalayas were created by the Minister of Justice. They did not measure upto expectations, and, in 1971, The Peoples Committees Act No 12 was enacted. Its Committees (called Janatha Committees) became so notorious that they were quickly abolished in 1978, to be followed by the Debt Conciliation Board. This Board lasted till 1988 when the Act to set up CMBs was enacted. The next product development for CMBs (following on the Tsunami Mediation Boards), is the setting up of special mediation boards to deal with residual land issues in the N-E Province, a recommendation of the Lessons Learnt and Reconciliation Committee(LLRC) and part of the reconciliation process initiated by Government. (The first two offices, in this institution building effort, were opened on 27. May. 2016. They will be followed by Anuradhapura, Trincomalee, Batticoloa, and Amparai). CMBs, in the quarter century of their existence, had gained international recognition. High level delegations from Bangla Desh, Laos, Mongolia, Nepal and Timor Leste have visited Sri Lanka to study their operations.
Community mediation has become a chic subject for study. It is part of a world-wide search for alternative modes of dispute resolution- speedier, cost-free, more participatory and accommodative- their decisions being accepted by both disputing parties making them an attractive subject for civil society attentions. The Center for Poverty Analysis (CEPA), which is in the first percent of professional civil society organisations in Sri Lanka, specialising in poverty analysis issues, self-generated a research on CMBs, though it did not have an evident track record either in research or publications, for this product diversification. Its output, (CEPA Study), is the subject of this review.
The colonial device of dispute resolution- the formal, adversarial judicial system introduced to Sri Lanka by Cameron in 1832, had been found wanting: the process is drawn-out and expensive. The downside of Camerons’ reforms midwifed a new profession, that of lawyer, whose job description is to plead before a judge- masking the negatives- on behalf of a litigant, like a priest would, before God, on behalf of the fallen. The modern view (Rawls) is different: lawyers representing both litigating parties should assist the judge to arrive at a settlement. The difference between the two approaches is that, in one case, it is the judge who searches for a settlement (the individual approach): in the other, it is the community that attempts to do so, without the intervention of lawyers (the social approach). The adversarial system does not search for truth or settlement, it only hegemonises advantage: its conclusions are based entirely on the evidence led by partisan, precedent-laden lawyers. The eventual verdict provides grounds to engender further disputes- a win/lose situation-, since there is a triumphant winner and a left behind embittered loser, convinced that his loss was not due to deficiencies of his just cause but specious arguments proffered by better-paid adversarial lawyers. Eternity resides in several universes, a multiverse. This particular legal universe had a plan C- a Cameron plan-, of getting disputants entangled in lawyer induced, adversarial legal battles. Sweetened by dates, these cases become lucrative ATMs for lawyers. In the CMB eternity, settlements need to be within six months.
The CEPA Study, having no Terms of Reference (ToR) was conducted- unknown to CMBs or top management overseeing their operations- by a group of researchers, reviewers and editors from the CEPA. No evidence is on offer that any of them had legal expertise, operational experience or academic qualifications about CMBs.
Community mediation is a priority for Government. It adopted the CBM model as one of the alternative dispute resolution modalities to the adversarial system, drawing inspiration from the pre-Cameron indigenous judicial arrangements of Gam Sabha. To ensure this policy direction of government, a Mediation Boards Commission (Commission) was set up under The Mediation Boards Act (1988). Its provisions were expanded by The Mediation Boards (Amendment) Act 45 (1997) and The Mediation Boards (Amendment) Act 4 (2011). An unique provision is that there cannot be lawyers or political appointees in CMBs, a matter for surprise for countries which visited Sri Lanka. The executive responsibilities of the Commission were vested with the five members of the Commission appointed by the President, three of them (and the Chairman) needing to be retired judges of the Supreme or Appellate Courts, the other two being those who held high positions in public service. Though the portfolio function of Mediation Boards is under the Minister of Justice, it is the President who appoints the Commission’s executive board, indicating the seriousness which Government attaches to the mediation function. The Commission has a firewall against politiquing influence. The Commission is responsible for appointing CMBs and their detailed operational supervision.
The CEPA Study sets out to find (judging by its title since there is no ToR), whether community mediation is a Just Alternative (to what, it does not mention): it could be surmised that it is an alternative to the formal judicial system. The CEPA Study was restricted to six (of the island’s 329) CMBs located in the Northern Province. Of the six, two were established recently (2006), the balance, four years later, of which, one, (Thunukai), two years ago. Except in the North and East- because of the conflict situation- the establishment of all other CMBs started from 1990. This CEPA Study should best have been carried out in the mature CMBs- those established after 1990- and not in CMBs taking their post-2006 baby steps, and one, yet in the cradle. The CEPA Study is a paediatric diagnosis, of institutions yet in their swaddling clothes.
CMBs are now spread round the island- one in each Divisional Secretariat- with 8425 mediators, receiving 191,676 disputes (in 2015) from about 400,000 disputants, of which 48% were settled. If these disputes had gone to Magistrate and District Courts, calculating at the low rate of Rs 50,000 per dispute, these poor disputants would have forked out Rs 20 Billion annually as lawyer’s fees, which is 10% of total national health expenditure. Mediation prevented the equivalent of 0.1% of the GDP flowing upward, as a transfer of resources from the village poor to lawyer pockets. In the Northern Province, there were 32 CMBs which received 2,225 disputes from about 4500 disputants. (None of these figures is given in the CEPA Study. Social Science research, without figures in its support, is like a bride to be given away, not having anyone in support). With 400,000 disputants available at the national level, 22,500 at Northern Provincial level and 4500 at sample level, the CEPA Study selected 46 strangers as candidates to be quizzed for the research. The CEPA Study was based entirely on insights provided by this group of 46. No evident effort was made to double check their insights.
There are deep reservations about how these 46 strangers were sourced and called disputants: they were selected by NGOs (pg20).Their status was not validated by checking records at the relevant CMB office, which is the only location which could confirm validity, as much as, it is the Department for the Registration of Persons which could confirm the validity of the National Identity Card. At an election, it is election officials who check on the validity of the voter, not the nominee of the political Party or NGOs. Non-valid members of the Group of 46 could be ‘ghosts’, whose names are included, solely to be on CEPA pay records. If a public sector organisation had followed CEPA procedures, civil society would have hollered, corruption. The CEPA Study was based on the spooky ‘evidence’ of these ghosts: it was a selfie project, produced by viewing Platonic shadows of themselves, cast on the wall. In sum, the CEPA Study with no ToR, is skewed with respect to CMB location, their number and faces the question of the locus standii of the group of 46. This review will not call them disputants, since that would give validity to a group functioning under false pretences. They will be recognised as members of the ‘Group of 46’.
Disputes submitted for community mediation are resolved by disputants themselves, helped by sustaining cadres called mediators. Mediators are neutral and impartial persons who assist people in a dispute to effectively participate in a collaborative problem solving process, to resolve differences. The mediator facilitates discussions and the decision making process, but does not make decisions for the parties on the substantive issues in dispute. He provides valuable assistance to parties to develop effective ways to talk with each other, gather relevant information, improve their working relationships, engage in joint problem solving and reach mutually acceptable and durable agreements. Mediators could be considered catalysts, since they bring together two elements in conflict to achieve a satisfactory relationship, without, they, themselves, being affected. Mediators are selected from the community from which disputants emerge. They are the load bearing beam of the community mediation process. To select them, applications are called in the Government Gazette, for volunteers from those resident in the Divisional Secretariat where the CMB is located. Interviews- to check social commitment- are held, chaired by the Divisional Secretary or his senior nominee, to undergo a five day training program on mediation issues. If any one feels that he/she was overlooked, the person could appeal to the Commission. An examination, testing social, communication, interrelationship skills, among others, is then held. Those obtaining over 40%, are selected as mediators. The whole process is transparent, giving no consideration to markers of social and economic standing, race, religion, caste etc. Women and minorities are encouraged to apply but they have to go through the same procedure. Mediators are not paid a salary. There are 8425 mediators at national level, 470 at Northern Provincial level, and 114 in the six CMBs chosen for the sample.
None of the mediators – central to the mediation process- were interviewed by the CEPA Study. They were sidelined (slighting them as “ostensibly independent third party”- pg. 24 last para). CEPA would have also considered The Buddha as an “ostensibly independent third party”. The CEPA Study impugned mediators with disparaging, slanting remarks. These remarks were not based on any quantitatively derived conclusions, but on prejudice. The CEPA Study damned mediators in hedged words, e.g. “however the social embeddedness of CMBs can mean that the powerful within the community- mediators and disputants alike- may impose themselves, (pg9).(In the seven year period of service of the current Commission, there was only one instance of abuse of power: those found wanting were immediately removed from their positions and a fresh mediation process initiated).The CEPA Study comes to the conclusion, that “these (dispute) settlements reached are not always reflective of what they (disputants) may have gained from the mediation process. Hence, while mediators may perceive success in terms of settlements, disputants perception of outcome is linked to how the mediation process takes place” (pg. 9). (No statistical analysis was undertaken to come to this inductive conclusion). It is the surmise of the CEPA Study that disputants go to the CMB to savour process- the entertainment value- like they would, when attending a village musical performance. Apparently, according to the CEPA Study, disputants do not address CMBs with the expectation of obtaining tangible outcomes, like satisfactory dispute settlements!
Irrespective of the negative viewpoints of the CEPA, the Government- with the enthusiastic support of the international community, has chosen the community mediation route to resolve a particularly demanding problem, that of land disputes bequeathed by the N-E armed conflict. These land CMBs too will be served by mediators, the recommendations of the CEPA Study had no influence. These land issues of the N-E Provinces have special resonances- documentation and land registration, boundary issues, encroachment and prescription, problematic and enforced land transfers, divided land issues, land rights for women and other vulnerable groups, access and rights of way issues. Land mediation is a new area for CMBs. As Machiavelli advised, “there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success than to take the lead in the introduction of a new order of things”. As special Mediation Boards (Land) are an introduction of a new order of things, their work is cut out for them. The use of the special mediation board mechanism was adopted earlier, when the Tsunami created massive economic and social disruption. Tsunami CMBs were a success. Every one of the CMBs selected for the CEPA study, was affected by the Tsunami too. They would have had experience of the operations of the Tsunami CMBs. That experience was not tapped for the CEPA Study.
The CEPA Study replaced a definite answer to the question of a Just Alternative, with unscientific speculations. They are listed below.
a) CEPA Study says “the ethnicity, gender, age, class and caste of the mediators may affect the level of satisfaction if the mediators are seen to be biased in their treatment towards other identity groups (page 9)”. Mediators are selected by an objective examination not by ethnic markers.
b) CEPA Study says, “if the mediators are from the dominant caste groups, then, there is a chance that patterns of discrimination against marginalized caste groups evident in society are recreated in the mediation process” (pg. 24). Did the CEPA Study research retrograde caste issues?
c) CEPA Study says, “Those who have powerful political connections within and outside the community have a higher chance of either dominating or defying CMBs, ignoring requests to be present at a mediation.”(pg. 24) The Freudian slip, ”defying CMBs”, reveals researcher ignorance. Any disputant may refuse to attend a meeting of the CMB as a matter of right: such a refusal is not defiance.
d) CEPA Study says “those who have powerful political connections—etc.”, shows ignorance of these researchers. If anyone is known to be involved in politics, anterior or during, the Commission promptly removes him/her. Such a removal has never been countermanded. National political leadership has honoured the rights of the Commission: the current Commission has worked for seven years, under two Presidents and five different Ministers, with no interference whatsoever. The Commission could proudly claim that it is truly a depoliticised public institution which is a reason for Mediation Board success.
e) CEPA Study says “further accountability to the community can also translate into mediators going beyond their mandate and attempting ‘forced settlements’ in attempting to ‘prove success’ by using the number of settlements as an indicator of performance. This attitude can have a particularly negative impact on disadvantaged segments of the population, especially women”.
1) ‘Going beyond mandate’ and ‘attempting forced settlements’?
Settlements are arrived before a panel of three, not by an individual mediator. The composition of the panel changes for every dispute, including its Chairman. The disputant can renege on the settlement any time, -even after it has been agreed on- since it is not legally binding. If settlement is forced, he would just not implement his side of the bargain.
2) ‘Prove Success’ of mediators, by increasing the number of settlements?
No reward is given to mediators for achievement. There is no assurance, for those who ‘prove success’, that they will be reappointed, since re-appointment depends solely on examination marks. The good karma of achievement does not flow into re-appointment. The CEPA Study team does not understand that mediators are performing a service, where deep satisfaction is its own reward, not a bureaucratic whimsicality.
3) ‘Forced Settlements’ have negative impact on women?
As corrected in (1) above, there are no forced settlements. The CEPA Study speculates further about negative impacts on women. From where did this CEPA Study get this information? In the 46 Case Instances listed at the end of the report, there is not one instance given of claimed negative impacts.
f) CEPA Study says, “The extent to which CMBs are in competition with or mainly complementary to other community based justice mechanisms such as local, religious or political party leaders, or the agents of the State exercising an (informally) extended mandate, such as the Grama Niladhari, can also determine how mediators or CMBs function”. CMBs are not in competition with any individual or organization. They fulfill responsibilities laid down in the law. It is like saying that the central government is in competition with a Pradeshiya Sabha. It is not understood what “an informally extended mandate to agents of the State is”. Grama Niladharis are public servants having formal responsibilities, laid out in the law or in circulars. If they are ultra vires of them, they would attract judicial attention.
None of the above,( a, b, c, d,e-1,2,3-, f) is true. These comments about mediators were arrived at without interviewing a single of the 8400 mediators.
CEPA is out of depth in this research, which is understandable, since its field is poverty studies. One example is in its discussion of formal and informal justice systems. In Para 4.1 (Page 22 of the CEPA Study), is the statement, “For purposes of the study, mechanisms outside the State, such as the law enforcement authorities and the judiciary, are recognized as informal mechanisms (highlight provided). According to the CEPA Study, the Supreme Court is an informal mechanism!!
Being out of depth is one thing: loading irrelevancies on the CEPA Study is another. A number of issues, not relevant to CMBs, is listed on pg17. These are,
Housing – The CEPA Study says,“ What could be termed large scale housing crisis is taking place. According to HABITAT 143,268 houses are considered ‘damaged’ in the Northern Province”. CMBs are not in the business of providing housing.
Employment – The CEPA Study says, “the lack of secure and remunerative employment and livelihoods has also precipitated high levels of indebtedness”. CMBs are not an employment provider.
Indebtedness – “There is a high level of indebtedness”. CMBs are not in the business of debt relief.
The CEPA Study is guilty of committing an unpardonable offence against research principles, of concocting evidence. Page 26 of the CEPA Study relates a purported incident where a complaint was made by one of the group of 46 that, “one thing is that CMBs should not speak racially. Once he (the Chairman of the panel), asked me whether I was a Muslim. I told him it is irrelevant to the case so just start the inquiry”. The reported incident was from Jaffna and it was not clarified with the Chairman. Northern Tamils and Northern Muslims speak Tamil but their accent – like Elizabeth Doolittle in My Fair Lady– would offer a strong hint about their ethnicity. The Chairman would never have asked this unnecessary question, for, if he had really wanted to know the complainant’s ethnicity, he could easily have surmised it from the claimant’s accent. In any case, the disputant’s name (as he was a Muslim) would have revealed his ethnicity. This statement is rejected as concocted, an indicator to the troublesome governing morality of this CEPA Study.
The CEPA Study is preoccupied with pet peeves, one of them being domestic violence. It is true there is domestic violence in Sri Lanka: the issue is its extent. Only one percent of the case loads of the Island and of the Northern Province CMBs, deal with domestic violence. With respect to domestic violence in the CMBs chosen for the study, there were 3 out of 894 complaints in Jaffna, 5 out of 284 complaints in Nallur, 5 out of 173 complaints in Kayts, 15 out of 222 complaints in Mannar, 56 out of 820 complaints in Maritime Pattu. Out of the 46 Case Incidents listed at the back of the CEPA Study, only 4 deal with domestic violence. The CEPA Study may not have noticed that out of the 15 mediators in Kayts CMB, 9 were women, the Chair and Deputy also being women. Domestic violence has been smuggled in.
The CEPA Study has not answered the question it researched, whether community mediation is a Just Alternative to judicial processes, but, instead, showered confetti of hedged words- “maybe”, “perhaps”, “can be”, “seems” ,“chances are”, etc., spewing them across the CEPA Study, like hydrogen and helium atoms across the universe following a supernova. There isn’t a single bone of a quantitatively based conclusion in this CEPA Study nor had a stochastic analysis been undertaken. The only figures available are in this Review.
In conclusion, a civil society organisation, the Center for Poverty Analysis (CEPA), undeterred by being in poverty analysis and not in mediation studies, self-generated this research on mediation, asking the Socratic question, whether mediation was a Just Alternative. The research does not betray any knowledge of historical background or current operations of mediation: those who do not know their history or operations are fated to be out of intellectual breath. The research would have benefited, if the study team had a previous knowledge of mediation. Like Pontius Pilate, the CEPA Study asked the question but offered no answer, being content with febrile speculations. Civil society is a group of fallible people, who, consider themselves infallible.
CEPA’s Study has no ToR, no glossary, no index, no conclusions, no listing of recommendations nor is there any reference to CMBs’ most important product development, that of setting up of land mediation boards in the very areas where the CEPA Study took place. Land mediation is a critical element in Government’s drive for reconciliation. The CEPA Study was conducted surreptitiously, keeping CMBs and the Commission out of the loop. It divined its speculations by interviewing a group of 46 strangers appointed by itself, who had no locus standii,- a selfie project- when there were 400,000 validated disputants to draw on. It was not averse to concoction. Preoccupied with pet peeves, it slighted mediators- who carry the Dharmic burden of making the CMBs work- without interviewing a single, of over 8400 of them. (The Buddha would not have been invited by the CEPA Study for interview). This CEPA Study is not science but political posturing. Policy makers on community mediation, need to be guarded on the CEPA Study. Aeneas warned, “beware of Greeks bearing gifts”. So must it be, with CEPA’s unsolicited political Study.
Polonius: “What do you read, My Lord?”
Hamlet : “Words, words, words.”
*Jolly Somasundram is a commentator on public issues.