Partner and Program Manager, CDR Associates
Interviewed by Julian Portilla, 2003
This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).
A: We previously worked in Indonesia on environmental dispute resolution and helping to develop a system there, but more closely associated with this land and property dispute resolution system was work we did in Sri Lanka. Chris did it, I didn't do it. It was a community mediation system. This is in contrast to the North American model of a single mediator or even paired mediators, where the mediators are neutral and unknown to the parties, and it's a confidential process, behind closed doors, pretty linear in it's approach and logical, and the mediator is playing more of a facilitative role.
In Sri Lanka it's a panel of mediators, usually three, all respected authority figures from the village, maybe a monk, a businessman, and a school teacher, some combination like that. Mediation is held in open court, usually the courtyard of the headman's home, you know a big, open space, and anybody who has a case comes on a particular day that's been announced. So the entire village is there watching because it's the best show in town, you have kids and cattle and chickens and everything running in and out, and the mediation is handled right there in front of everybody because if it was done behind closed doors, it would be seen as, you know, somebody's cutting a deal behind closed doors and there's corruption and all that.
And the mediators are moral authorities. I mean a Buddhist monk is sitting there as a mediator. So he may turn to one of the parties and say, look, you know, you're going to get points in heaven if you restore community harmony here, so why don't you kiss and make up with your neighbor here that you've been having this dispute with. And it even brings in the interests of the community in harmony and reestablishing community unity, and that kind of thing. As the mediator he's bringing that in, and using this sort of moral suasion with the parties as a lever in getting an agreement. So it's a really different model, and they're not neutral. They're known, and the process is not confidential, it's in front of everybody. And the notion of a party is even different, because it may be that you and your neighbor had this dispute, but another neighbor may have an interest in it. Or your family might have an interest, or maybe you're the 15-year-old son who neglectfully let the bull from your family destroy the garden of this family.
Well, as a 15-year-old kid, you would be nobody, it would be your dad who'd be representing you, it wouldn't even be you. Or let's say it's a civil thing where the son of one family somehow besmirches the reputation of a daughter in another. Well the son and the daughter aren't even going to be in the room. It's going to be the elders of the family. So, in our system, the son and the daughter would be there. The family would be present, but, you know, the lawyers would represent them and the kids might testify and all that. But in this system it's that extended family, and the notion of who the party is would be much more holistic and involve a lot of different folks. The mediators might even call on neighbors to ask what they know about it, you know, bring other people in rather than just the parties.
Q: In that situation would the mediators ultimately decide as a panel what the outcome is going to be, or is it still a participant-generated settlement?
A: Well, Chris would of course know a lot more about this than I do, because he's the one who did the case and I've just heard him talk about it enough that I sort of know the stories. But, as I understand it, the mediators still would get the parties to come up with a solution, at least in the first instance. But they might use much more persuasion and pressure than our mediation style would do. But if the parties are stuck, then one of the mediators might say look, this is what I think would be fair, what do you think. Still giving it to the parties to say whether they agree or not, and ultimately the parties have to agree or there's no deal. And if there's no deal, which happens, they would go back to the court system and wait ten years and get the case resolved. Which is why Sri Lanka did this, because they had a ten-year wait for a civil case. The court system was so backed up.
Q: So is that a model that was that spawned more from Chris going into Sri Lanka, and saying this is how we do it in our country. What do you guys want to do based on this suggestion. Or did that exist?
A: Two things. When we went in they had already tried to do community mediation and it had fallen flat. It hadn't worked. So Chris went with the Sri Lankans and did an evaluation of what was wrong with the previous model. And partly it was that they had imported ideas about confidentiality and things. They did their mediation behind closed doors with single mediators, etc., which just wasn't working. So they did an adaptation or they did a change of the previous model. Whether you told the mediators they should be neutral or not, it just wasn't in their mental model or their cultural model of how someone in this role should act. So some of it grew spontaneously out of the way that people did things. Others were by design, like having it in open session, having authoritative mediators, rather than sort of non-entity, unknown mediators, and what we call social context mediators also, people who were not from outside but from the local social context. Those were all by design. And that was Chris working with the Sri Lankan colleagues to say what's going to work here? What hasn't worked before? How should we design this? And there was some experimentation to see, you know, how things work in different places. They now have something like 6,000 mediators and it's amazing. And they're now talking about extending this into the Tamil areas that have been war zones for the past few years.