Consensus as mediation for two-person criminal dispute resolution

By Jolly Somasundram
(macsoma@gmail.com)

“Philosophers have only interpreted the world. It is time to change it”

Karl Marx

There was growing disenchantment in the 1970’s- 80’s, about the equity of the prevailing Bentham based Utilitarian system of resolving minor, two-person criminal disputes. The system was implemented in Sri Lanka (then Ceylon), on the recommendations of Cameron- Britain’s Benthamite jurist- and implemented since 1832, by a newly established Court system. One consequence of implementation was giving birth to a new cadre of professional pleaders called lawyers.

The philosophical principle which underlay Bentham’s thought was to provide the greatest happiness to the greatest number. The concerns of the distraught losers were of no concern to the Court. It was hard luck for them. Cameronian dispute resolution was operated and outputs delivered through a lynchpin decision maker- a learned judge- who, after a trial, where a forensic inquiry on all aspects and issues was assayed and, after consulting precedents, laws and lawyers, delivers with reasons, a binding but appealable verdict. The verdict had a winner and a loser. It could be the Hammurabi code in action, so ancient were its putative origins.

The Hammurabi inspired code had its merits but also suffered a number of critical downsides, among them, it being expensive, time consuming and leaving behind an embittered loser. For the disputants, the need for presence in a majestic Court building was awesome by itself. The events enacted therein, appeared théàtre. First, there had been a live dispute in which the disputants were participant/actors. In the second round, in Court, the proceedings were called to order in a stentorian voice of the Court crier. The disputants were represented by two or more black-garbed individuals- called lawyers- arguing, not in search of the Socratic truth but how best to accomplish their brief, irrespective of veracity of the events presented. The truth was not a hard objective reality- like a diamond- but a fungible commodity. The bemused watching disputants, were prevented from instantly setting the record straight, under rules of contempt. These lawyers were arguing about a disembodied dispute to which they were not privy, one they had known only second hand when events were related in Chambers by the disputant who had retained him. The Cameronian Court drama ended as a zero- sum game, without the disputants having a say on how it was conducted nor on its outcome. The case concluded as another transaction, reconciliation not being given much attention. It was a bureaucratic, Correct justice fulfilling the rules, but not dealing with developmental justice, which covers what is Right, the one that would take into account human frailties like perception and visual agnosia. Kurosowa’s brilliant film, ‘Rashomon’, deals plausibly with the subject. Four eye-witnesses to the same incident, recounted it later in four different ways. Many, including Rawls- the pre-eminent philosopher of Law- questioned the ‘justice’ of this justice.

A fresh jurisprudence was called for, based on a Steve Jobs’ rethink, deriving out of insights from human psychology. Law is a life form which is all about managing social relations in a dexterous and acceptable manner. The Ministry of Justice (MoJ) of the 1970’s-80’s gave intense thought to the creation of a more equitable arrangement and amend the Cameronian bureaucratic model which decides- blindfolded and with a pair of weighing scales- on what is Correct. The new approach should also be about what law ought to be ie decide on what is Right. This is the developmental mode in the Rawlsian model.

The time was ripe to soft- revolution Cameronian modalities. It should be a fresh template, to ease access to justice at the grassroots and deliver it as fair justice, a win-win remedy. A greening of justice was called for, not reddening it with embarrassment. Justice should be dealt as a public good, like education or health, available to all, not only to those who could afford it. The focus of Justice should be to give attention to the most disadvantaged, the vulnerable, the poor, the marginalised, the shirtless ones- the descamisados.

The MoJ (Ministy of Justice)/ MBC (Mediation Boards Commission) new model is a version of alternate dispute resolution, authored by the MoJ and implemented by the MBC. It is an effort to give life to a foundling Pygmalion and offer it intellectual sustenance, in the light of new thinking and its requirements. The narration, now presented, is uncommissioned, pro-bono exercise. It has no authority.

The founder MoJ’s suggested recommendations would take the breath away, for its sheer swashbuckling thinking! Refreshed with a new view of the nature of Man, these recommendations were derived out of intuition and extraordinarily creative, out- of- the- box thinking. Founder MoJ’s recommendations placed every accepted Cameron jurisprudence on his head. There was no judge, the two disputants were their own judge. The disputants- at a dyadic level, (the lowest point of the polity)- and in intense, engaged, inclusive in camera discussions, by themselves, of themselves, for themselves, to themselves, among themselves, with themselves, will eventually emerge with a consensually derived resolution to their dispute, assisted– if approved by the two disputants- with a trained mediator. All three, the two disputants and the mediator will be from the same community, perhaps travelling to and from the mediation venue in the same bus, thus cementing community support for the result. No lawyers were permitted, no politicians were selected as mediators. It was a do- it- yourself (DIY) justice. A dissatisfied disputant could take recourse at the next higher level of the judiciary. If it were thought all this was a Mad Hatter’s party of Prepositions, nothing could be more wrong, as the whole initiative turned out a grand success. The co-founder MBC, starting with zero in 1988, had built about 350 units in thirty-five years, working every Sunday morning with about 8500 volunteers spread all over the island, the largest number of volunteers in the island. It was not a top-bottom Benthamite justice but a Rawlsian bottom-up one.

The disputants found their own justice! If there were a feeling that this were anarchy- a dream of a mentally tested- it would be wrong. The other co- founder, the MoJ persisted and, as mentioned, in thirty-five years of committed endeavour there are now about 350 functional dyadic mediation boards, meeting every Sunday, the country experiencing a throbbing democratic happening of give, take and compromise in 350 mediation centres.

The subject and function of mediation is vested with the Ministry of Justice (MoJ). To implement its proposal the MoJ got parliamentary approval to enact a dedicated Act of Parliament called Mediation Boards Commission Act No 72 of ’88 with a Minister and Secretary and a public enterprise with a Board of five, called the Mediation Boards Commission (MBC). Both MoJ and the MBC report to parliament through COPE. No outside agency- a NGO, private sector, international aid agency etc., could give directions to the MBC. The MBC is the trustee of the People on matters pertaining to two-person mediation. With power comes responsibility.

The Board is responsible for all acts of the mediation function, particularly to safeguard the hard won two-person, mediation function from being debauched. If it does not know what is happening, it is its job to find out ignotatio juris non excusat (ignorance is no excuse). A cardinal principle the board should follow uncompromisingly, is not to look the other way when it becomes aware of wrong doing, in order to safeguard its job. Don’t canvas a human sacrifice! But alas!

Sec 6 of mediation Act defined a mediation board as “Any person may make an application to the chairman of a panel of any mediation board for settlement by mediation of any dispute, arising wholly or partly within the mediation board area of any offence specified in the second schedule of the Act and alleged to be committed within the mediation board area.”

a) A mediation board comes into life for a specific purpose, when a disputant seeks mediation,

b) A mediation is a two-person activity. It is not a mass meeting,

c) Mediation deals with a dispute, an event that takes place in a time or place.

It is not a conflict.

Institution building requires a vision. A Vision is a leitmotif that unites all aspects of an activity. The operational arm of the MoJ-MBC’s initiative for building and operating mediation boards, was the Mediation Board Commission (MBC). The laying down of the Vision is the sole prerogative of the MBC, not to be questioned by non-entitled outsider bodies like an NGO, the private sector, international bodies etc. If there are aid agreements they have to be within the Vision laid by the MBC. The MBC laid the Vision of two-person mediation boards as,

“Arrive at a consensual resolution for a two-person conflict” It is said: therefore it is There are no mediation boards but two- person mediation boards

The recommendation of the MoJ was bizarre but worked. The taste of the pudding is savoured only in its eating. The, about 350 mediation boards- each one having about eight to ten panels, cover the entire island. This breakthrough variant of alternative dispute resolution produced by the MoJ/MBC initiative, has no lawyers- they are prohibited by law- and no politicians- they are vetoed by non-selection by the MBC board. Both decisions gave mediation boards substantial credibility. They meet in camera, assisted by trained volunteer mediators who are from the same community as the disputants, whose participation is approved by both disputants.

These two disputant, in intense democratic discussions, get evolved a consensual settlement. There is a 62% settlement rate.

Their beneficial reach goes deeper and is more comprehensive than Greek democracy which caps at the Polis. Women and slaves had no say in the polis. Mediation, coverage goes to the dyad (two person), the lowest point of the community.

A consensual mediation settlement has further upside benefits, going beyond the immediate dispute that was resolved. The settlement generates ripple benefits like personal reconciliation of the two estranged disputants, widening and strengthening the social and community fabric but most beneficial of all, it has set in train a building of an ideology of CONSENSUS, as an indispensable social virtue for resolving disputes of any kind. It is Consensual Armament. A thousand mile journey has a first step: building of consensus, as a value system has- so far taken about 350 independent dispersed steps.

Mediation’s character is baked into Mediation Boards Act No 72 of 1988. By Sect 6 (1) of the Act, “any person can make an application for settlement by mediation of a dispute.” It is an access to justice mechanism which greens justice at the lowest level of the polity, a two-person dyad. Simultaneously, it serves as a poverty alleviation device. It is cost-free since lawyers are prevented from being present.

The MBC drew a schematic diagram, drawing attention to the fundamental differences between adversarial dispute resolution- the Bentham model and its mediation form, the Rawls Model.

Every element on the right should be present in a consensually settled dispute.

The ambit of the of criminal disputes covered by mediation are as follows:

Voluntary hurt,

Grievous hurt on provocation,

Wrongfully restraining a person,

Assault or using criminal force,

Dishonest misappropriation of property,

Mischief,

Criminal trespass,

House trespass,

Defamation

Painting defamatory material,

Insult to cause breach of peace,

Criminal intimidation.

The MoJ/ MBC initiative was undertaken entirely by locals with, perhaps, a foreigner trace element. In the natural sciences, discovery is about finding what is already there, eg Dirac’s anti-matter, penincillin, dna, emc2 .In the social sciences, discovery is in creating what is not there, building from zero. The Taj Mahal was built marble slice by marble slice, the Sistine chapel daub by daub, a MoJ/MBC jurisprudence in thirty five years and on-going. The new jurisprudence, created by MoJ/MBC, of two-person dispute resolution through Consensus and no judge, is an act of creation, a vindication of Steve Jobs’, Think Different.