A Blend of Arbitration and Mediation: Analysis of the Possibilities and Challenges in Utilising MedArb Practice in Sri Lanka

Abstract

The ADR landscape is evolving at a rapid level across the world and one of the latest trends in such is transferring dispute resolution into Arb-Med-Arb and Med-Arb. Arbitration and Mediation are recognised as two favourable dispute resolution methods, especially in commercial dispute resolution. When considered in isolation, both mediation and arbitration have unique features. Despite a few substantive and procedural drawbacks in both methods, mediation, and arbitration have gained popularity recently. While transferring into a mixed approach of MedArb and Arb-Med-Arb is still in its infancy in the context of Sri Lanka, this paper examines the possibility of utilising MedArb practice within the existing landscape in the country. Arbitration practice in Sri Lanka has a long history and the Arbitration Act No. 11 of 1995 and its amendments suggested which are to be in force in the future lays the statutory framework for arbitration. Notably, the background for Mediation in Sri Lanka started with community mediation and now it has reached a significant milestone in commercial mediation as the enabling legislation for the Singapore Convention was enacted recently. This paper uses a doctrinal approach in dealing with primary resources as well as secondary resources when conducting the research. This paper uses an exploratory analytical method. It also includes a comparative study that examines the MedArb practice in Hong Kong as a progressive Common law jurisdiction. In its findings, the paper highlights that the MedArb practice is adaptable in Sri Lanka within the existing statutory framework and the institutional setup. However, it urges that the professionals and the commercial community pay attention to the points discussed in the recommendations for the successful functioning of the MedArb practice.