The Case for Therapeutic Justice by Integrating the Practice of Private Mediation in Sri Lanka Throughout the Life Cycle of a Case

Abstract

The concept of Therapeutic Justice focuses on the law’s impact on the emotional and psychological well-being of the people, thus calls for therapeutic methods of resolving disputes against the negative effects of an adversarial setting. Eleven (11) cases litigated in Sri Lanka during the years 2021 to 2023 form the basis of an interpretive case research in a naturalistic setting that captures the complex emotional and psycho-social impact of the adversarial methods of dispute resolution on the disputants. Despite most such cases having achieved a so-called ‘out of court settlement’ through the collaboration of lawyers, the interactions between the disputants during the post litigation phase reveal persistent lack of confidence and distrust between the disputants as well as lack of therapeutic impact of ‘out of court settlements. Contextualised data was collected through observations and interviews of the participants in the court and from interactions with the lawyers. Using a thematic analysis, patterns emerged from the qualitative date directed towards the negligible therapeutic impact of ‘out of court settlements’ on the disputants and the potential use of private mediation as a therapeutic method of resolving disputes. The findings assume that Therapeutic Justice and mediation closely share attributes such as not only resolving underlying issues in a less-adversarial set-up but more importantly managing emotions, empowering’ litigants to actively participate in rehabilitating relationships, to achieve outcomes that benefit all parties through mediation. The findings highlight the need to adopt and experiment private mediation in Sri Lanka through court referrals throughout the life cycle of a case and of the corresponding need to set up a vibrant mediation culture.