Task 1

"The function of the judiciary is to adjudicate disputes in the society. The only lawful choice
available for a citizen to redress grievances is to resort to Courts. Thus the Courts must not only
be accessible to the people but must also provide speedy decisions. The laws enacted by
Parliament would be meaningless unless the Courts act independently"

1. 2 In the light of the above statement discuss the importance of an independent

judiciary.
The judiciary is one of the major elements of a government; executive, legislature and judiciary.
They have check and balances but should operate independently with sufficient amount of
liberation. Especially the better governance of a state only certifies and guarantee with an
independent court system only. Independent judiciary includes the ability and duty of a judge to

9
9

decide each case according to an objective evaluation and application of the law, without the
influence of outside factors. 1
Judicial independence is a hallmark of separation of power of a state. If a state continue an
independent judiciary it reflect that the country respect the concept of separation of powers. 2 The
powers awarded by the constitution of the country usually separate among major their limbs of
the government. Accumulating the powers on the hand of one institute derive the major objective
of a states, betterment of its citizens. The supervisory power vest under the court is guaranteed
the legislative functioning of the other institutes.
Judicial independence is important to ensure that fundamental rights of the people are guaranteed
by the law of the country. The judiciary can be recognised as the guardian of the people who are
suffering from the lack of power. Leuba states that, the independent judiciary protects the weak
from the powerful; the minority from the majority; the poor from the rich; yes, even the citizens
from excesses of government. As an example if a citizen is accused for a crime, how the society
keep trust of a fair trial unless the judiciary is independent. The court must ensure that effective
remedies are granted in the cases where rights of individuals are breached by the limbs of the
state.
Judicial independence is crucial to the functioning of any democratic system. 3 Andrew Jackson
stated that all the rights secured to the citizens under the Constitution are worth nothing, and a
mere bubble, except guaranteed to them by an independent and virtuous Judiciary. 4 It shows
that the constitution of a democratic state properly function with the aid of judiciary only. If there
are no one to inspect and impose remedies for breach of constitutional rights then such operation
is worthless. If the court operate independently it reflects that the rule of law is ensured by the
rulers of that particular country.

1 C. Leuba, Testimony of Judge Robert C. Leuba, Chief Court Administrator, available from;
http://www.jud.ct.gov/external/news/press036.html, accessed 04-02-2014
2 Independence of the judiciary, available from; http://www.osce.org/odihr/judiciary, accessed 04-02-2014
3 C. Leuba, Testimony of Judge Robert C. Leuba, Chief Court Administrator, available from;
http://www.jud.ct.gov/external/news/press036.html, accessed 04-02-2014
4 why a fair and independent judiciary matters, available from;
http://courts.delaware.gov/aoc/AnnualReports/FY07/FairandIndependentJudiciary.pdf, accessed
04-02-2014

Task 4
The Legal Profession is one of the most lucrative professions in the country. Nevertheless those
in the Legal Profession are subject to duties, obligations and responsibilities. The representation
of rights and interests of the client in Courts is at the heart of the legal profession. However, the
priority, in terms of a lawyer's duty, is to assist and lead the courts to mete out justice to
concerned parties. Therefore a lawyer must not only work solely -to-promote the interests of his
client, but also to ensure justice and fairness are meted out to the society at large. Hence the

Prime duty of a Lawyer is to strike a fine balance between the rights and interests of his clients
and that of society.
In the light of the above statement;
4.2 (a) Discuss if a lawyer should be immune from liability for the negligent conduct of a case in
court Reference should be made to the duties and responsibilities of a lawyer towards the courts
and his clients in an adversarial system.

Lawyer is a person who learned in the law as an attorney, counsel or solicitor and practicing
law." 5 A lawyer plays a vital role in a legal system in order to promote and establish justice. In
some circumstances lawyers confuse and lost among their duties and obligations. One of such
dominant occasion is the conflict between duty of confidentiality toward the client and the duty
to assist the court. There are public safety exceptions where attorney-client confidentiality is
dominated by those exceptions.6
An adversarial legal system is a system where two or more lawyers who represent the positions
of their parties before a jury or judge who involve substantiating the truth of the case. In other
words the judge adjudicate where the truth lay, in which parties case by considering whatever
they present before the court. In this system the lawyers role become more dominant than in a
inquisitorial system where judges role dominate within judicial proceeding. Adversarial system
makes the judges role inactive and equal to an umpire. Same time the lawyer becomes the
leading figure in the system who engages in much active and leading role.
Under fundamental duty of lawyer to his client he must handle the case and represent his client
zealously within the bound of law. 7 The boundary itself has recognized by the law where it
establishes the framework which lawyer move and obey within it. The limit of the duty of the
lawyer to his client may hump by the duty he possesses under the law as a legal officer. He can
deal with the lawful objectives of his client which are permitted by the law. 8
In some codes of ethics recognise lawyers role in the light of his duties to his client, as an
advisor and as an advocate. 9 Same time he act as the s intermediaries between his clients and
other parties who oppose them. Here it is highlighted the duty of the lawyer as a negotiator.
Hence not only in litigation but also in alternative dispute resolution the lawyer can engage
actively to ease the workload of the court by advising their clients to skip the court proceeding in
the circumstances where they seems not necessary and in vain. Here the role of the lawyer as a
5 Henry Campbell Black, Black's Law Dictionary, St. Paul West Publishing Co., 5th ed. , 1979, p 799
6 Marble, A., vital to adversarial system or adversary of justice?,
,https://www.law.upenn.edu/journals/jil/jilp/articles/1-1_Marble_Andrew.pdf
7 Rich, W., The Role of Lawyers: Beyond Advocacy,
http://www.law2.byu.edu/lawreview4/archives/1980/4/ric.pdf
8 Rich, W., The Role of Lawyers: Beyond Advocacy,
http://www.law2.byu.edu/lawreview4/archives/1980/4/ric.pdf
9 Rich, W., The Role of Lawyers: Beyond Advocacy,
http://www.law2.byu.edu/lawreview4/archives/1980/4/ric.pdf

legal officer, who represents the law, is dominated. Nevertheless someone must not forget that
the lawyer has the duties to the society as well.
In Ross v. Caunters [1970] 3 AER 580 the court held that lawyers can owe a duty of care both
to their clients and to third parties who suffer loss or damage. There solicitor was liable to a
group of beneficiaries under a will for having failed to warn the testator that the will should not
be witnessed by the husband of one of the intended beneficiaries. This decision was re-confirmed
in White v Jones [1995] 1 AER 691.
Therefore it is very clear that the lawyer must balance his duty to the court, the law, the client
and the society. In the other word he cannot do anything to benefits of his client because of he
is bound by his duties to the court, the law and the society.
Because of these special requirements of the legal profession it seems that the lawyer is a
significantly different profession than the others. 10 In a usual profession the negligence is a
professional misconduct and the professional must face the consequences of it. As an example
the doctors must be responsible for their negligence acts and medical negligence is a punishable
offence. Do this concept applicable in the legal profession in equal manner or why the lawyer
must exempt from this responsibility if someone asks to do so. This is the issue must focus in the
question.
It is clear that negligence can be a crucial issue and result unfavourable consequences for the
client and in the point of view of the client it is a serious error which may be punishable or
compostable. This immunity doesnt reflect that the lawyer is an extraordinary person and he
must allow to act in any manner he wish. Nevertheless there are fair reasons for a lawyer who
acts in bona fide where his conduct must be immune from negligence though someone seems it
must not.
The lawyer who acts for the benefit of his client must be given a bit of liberation than the other
professionals. The reason justify this is the issue he must be deal with. The lawyer takes the most
suitable action in a certain circumstance where it seems necessary according to his professional
skills, knowledge and experiences. Some other lawyer may follow a different procedure than this
in a similar situation. Anyhow can someone criticise the action of the first lawyer on the ground
that someone else may act in different manner in such situations, obviously not. The reason is the
legal profession must allow a little bit of discretion and it can be identified as a subjective
involvement.

10 Reese, J., and Marshall, P., Role changing in our adversary system: What do lawyers, the
system, and society stand to gain?, http://thegoodproject.org/wpcontent/uploads/2012/09/GoodWork25.pdf

According to above discussion it is very clear that the legal profession carry more freedom and
liberation than the other professions. It is true that the legal profession is also controlled by a
code of ethics as most of the other professions and expect reasonable conducts by hem with
respect of these codes of conduct. The lawyer is also bound by his duties to the court, the law and
the client. Same time the nature of legal profession carry more discretion than the others.

4.2 (b) Suggest reforms to the legal profession in Sri Lanka to ensure that justice is meted out
and means to eradicate laws delay.

Legal profession is varying in different countries. In some countries it is exist as a unique

profession while the other countries practice it under wide variations.
Sri Lankan legal professionals are called as Attorneys at law. They are authorized to represent
others in courts and are also authorized to give advice regarding any matter of law. Before 1974
there were two groups of legal practitioners in Sri Lanka. They are;
A. Advocates; and
B. Proctors.
In 1973 they were assembled into one group under the Administration of Justice Law No. 44
of the government. After that there are only Attorneys at law for all purposes and there is no
division in legal profession. Senior attorneys are appointed as President's Counsel.
A person who wishes to enter into legal profession should gain admission to the Law College and
study law or directly under take exams after gaining a LLB from a local or foreign university.
After passing law exams, which are administered by the Council of Legal Education and
spending a period of six months under a practicing attorney of at least 8 years standing he fulfil
the required qualifications. At the end to practice as a lawyer he must be enrolled as an Attorneyat-Law of the Supreme Court of Sri Lanka.
After that he has few career options to be selected one of them;
1. Active practice as a council
2. Join a law firm
3. Legal officer
4. Self employ and work alone (conveyancing)
5. Enter the judiciary
Today the unbearable workload of the courts is a significant problem. One of the primary reasons
for this is delaying cases at courts. Many cases extend for years. This issue make the litigation
unreachable for laypeople. Hence the justice and fairness are not reachable. Here the lawyer is
alleged as he intentionally cause for this delay. The conduct of the lawyer which is motivated by
the economic factors act against his professional ethics and same time it causes contradictions in
whole adjudicatory mechanism.
The profession of Attorney at Law is regulated by the Constitution, and other laws approved by
the Parliament. This includes sections 40, 41, 42, 43 and 44 of the Judicature Act No.2 of
1978. It point out rules regulating the admission, enrolment, suspension and removal of members
of the legal profession. The rules of conduct and etiquette and the rules pertaining to attire for
such persons are made in terms of Article 136(1) (g) and (h) of the Constitution. The members
admitted to the legal profession and who are not disbarred is identifiable by referencing to the
register maintained by the Supreme Court. (Extraordinary Gazette No.9/10 of Nov.08, 1978)

The laws which regulate the conduct of law established long time back. Many of them seem to
be outdated and must be revised and update is essential. The reason for this is the working
conditions of lawyers have changed during the past years. The law has entered into many new
areas and therefore the involvement of lawyers also subject to many changes.
The lawyers may intentionally delay cases due to many reasons. One such may be due to
overloaded work stuff of the lawyers. They may promise to appear more than one case per time
and these cause unnecessary extensions of cases. Same time this is direct cause of breach of
duties of lawyers to the client as well as to the court. Therefore the code of conduct and other
rules which regulate the lawyers conduct must be revised to meet this requirement.
The allegations against the lawyers can be brought before the Supreme Court and then they refer
to the ethic committee. Still the procedure has many weaknesses and there are very fewer
remedies grant by the committee. Therefore it can be suggested to revise the process and
establish much stronger mechanism. The committee must be vested with wide powers to inquire
allegations against lawyers. The functioning mechanism must activate without any delay. At
present it takes months to complete single inquiry.

Task 5
5.1 Discuss the importance of resorting to ADR as opposed to court litigation

Alternative Dispute Resolution (ADR) methods such as negotiation, conciliation, mediation and
arbitration have a wider acceptance in all over the commercial world. Negotiation is coming to
an agreement by the parties to the dispute without assistance of an outside body. 11 In conciliation
the conciliator merely gets the parties together and helps the parties to come to an own
settlement. But in mediation the mediator suggests his solution to the dispute. 12 Then that
solution can be discuss and agreed to by the parties. But they are not bind by the suggestion. 13
The arbitration is relatively different process in ADR which has some kind of formality within its
procedure. In arbitration the parties to dispute are bound by the arbitrators decision. 14 Therefore
the arbitration has wider applications than the other methods in employment dispute resolution.
States have given more access to the arbitration process by enacting numerous numbers of
legislatures to enforce it
The arbitration is subject to the supervisory power of courts and the power exercises through a
system of prerogative writs. 15 If a tribunal exceeds their powers, refuse to exercise their powers
or made an error of law three different prerogative orders (mandamus, certiorari and prohibition)
available for the suffered party. 16 Therefore arbitration process will not challenge the
adjudication of courts and the arbitrators decisions are not final and conclusive.
When compare the ADR and the litigation procedures arbitration has more advantages than the
court litigation. The ADR process relatively free from technicality and possess a great degree of
informality. 17 Therefore it can identify that the ADR is much simpler than the litigation.
Nevertheless some ADR proceedings such as arbitration might be complex than the others. It can
be less expensive than the court litigation as it encourages the applicants to put forward their own
11 R.Kinder, Law at Work: trade union (Sweet & Maxwell Ltd of 11 New Fitler Lane, London,
1980) 70
12 Ibid
13 ibid
14 ibid
15 J.Mcllroy, Law at Work: going to law (Sweet & Maxwell Ltd of 11 New Fitler Lane, London,
1978) 22
16 ibid 22
17 ibid 29

case without the legal representation. 18 Same time ADR is reputed for its wider accessibility and
speedy process. 19 The major differences between arbitration and litigation can be summarised as
follows.
ADR
Procedure is simple

The Court litigation

legal procedure and law are very complex

Less expensive and no legal representation is court action and legal representation are very
required
expensive
Not involve adversarial system and do not court action has an adversarial nature and
spoil the relationships between parties
spoil the relationships between parties
Friendly atmosphere

Intimidating atmosphere in courts.

ADR action is private

court action is public

Solution get quickly

Time consume and solution delay

18 Ibid
19 ibid

5.2 In reference to the above scenario, state whether Simon and Romeo should resort to
Alternative Dispute Resolution or Courts to resolve their dispute.
Facts of the case;
-

Simon is a pet lover who is a master of 3 Dogs. Romeo who is a flower supplier, owns a
flower garden.
Simon and Romeo are neighbours and live in a remote village located about 500km away
from the city.
The village is largely an agricultural area and has a very limited population. Both of them
dropped out of school before they finished schooling.
The name of one dog owned by Simon is Rex. Rex is not well tamed and has the habit of
breaking in to Romeo's property and his flower garden and causing damage.
On one occasion when Rex broke in to Romeo's property, Romeo beat it with a stick
which fractured Rex's leg.
Simon, who is well known for his short temper, stormed in to Romeo's property and
destroyed his flower garden in revenge.
Romeo is claiming damages for destruction caused by Simon and Rex to his property.
But Simon refuses to pay on the ground that Romeo exercised cruelty on his pet.
Lawyers do not live in this village because the nearest court is located about 300KM
away.

Alternative Dispute Resolution is processes that are available for the resolution of disputes other
than the adjudicatory or litigation process. They are settlement oriented. At the moment the
world is operating many types Alternative Dispute Resolution mechanisms; 20
1. Arbitration

Both sides of the dispute agree to solve their dispute through an arbitrator, who is a lawyer
or expert of the law field. He decides the dispute according to the law, and his awards are
legally binding and can be enforced by the courts. Sri Lanka has given legality to this
method by the statutory enactments (Arbitration Act No. 11 of 1995).It facilitated for a
regime which recognizes party autonomy devoid of court intervention. It provided
expeditious resolution of commercial disputes.
20 The English Legal System, Garry Slapper & David Kelly, 11th ed. Routledge, Ch 12, pp 526-527

2. Early neutral evolution

A neutral professional gives a non binding assessment after hearing disputing parties. The
decision is open for further negotiations.
3. Expert determination

An expert is appointed to resolve the dispute and give binding decisions.

4. Mediation

Mediator helps both parties to come to an agreement. If they are able to come to an
agreement, present it as a legally binding contract.
Mediation Boards are unique dispute resolution forum in Sri Lanka which was constructed under
Mediation Board Act (No. 72 of 1988). It inquires claims of various kinds and minor offences.
Mediation Boards are operated at divisional secretariat level. Mediators not consider legal rules
of procedure when they dissolve the disputes. Panel of mediators are attempting to bring long
lasting settlement. No legal representation is allowed at here.
There are few different types of mediations currently operate;
a) Community Mediation

Mediation Boards Act No. 72 of 1998 was passed by Parliament to provide a legal
framework for institutionalizing Mediation Boards. It empowered the mediation
process in Sri Lanka. Disputing parties themselves or court can refer a case to the
board. Most number of cases is referred by the community and sometimes Banks
refer cases regarding debts.
b) Commercial Mediation

Commercial Mediation Centre of Sri Lanka (CMCSL) established by the

Commercial Mediation Centre of Sri Lanka Act, No. 44 of 2000. Its aim was
settlement of commercial disputes by mediation and conciliation. Private
commercial community requested for more efficient
dispute
resolution mechanism and CMCSL was the result of that.
c) Employment Mediation

Employment Mediation Services Centre (EMSC) was established to improve

relationships
in
the
manager
and
worker
environment.
Any

employment dispute can refer to the Center. It has formulated its own Rules in
terms of which mediation sessions are conducted. Key features of the process are
that it assures complete confidentiality and is purely voluntary in nature.
5. Conciliation

Conciliator interferes to a dispute than a mediator. He suggests possible solutions.

Currently Conciliation process in Sri Lanka is conducting under the provisions of
Conciliation Boards Act (No. 10 of 1958).
6. Med-Arb

Med-Arb is a combination of mediation and arbitration. If the parties agree for mediation
but do not agree for a settlement then refer to arbitration.
7. Neutral fact finding

A neutral expert is appointed and deals with the cases involve complex technical issues.
He investigates the facts of the case and makes an evolution.
8. Ombudsmen

They are Independent office holders who do not have power to make binding decisions.
Ombudsmen investigate and report infringements of fundamental rights and other
injustices by public officers. They make recommendations. He acts as a mediator between
complainant and the government department and makes recommendations to grant relief.
No legal representation allows.
9. Utility regulators

Handle complaints from customers who are not satisfied from the services of their service
providers. E.g. Electricity, water
Sri Lanka mainly uses Arbitration and Mediation as Alternative Dispute Resolution mechanisms.
There are many ADR methods that actively employee in Sri Lanka;
1. Labour tribunal
2. Rent board
3. Government departments
E.g. Customs
Inland Revenue
4. Commissioner of labour
5. Minister of labour
6. mediation board

7. human right commission

8. ombudsman (Parliamentary Commissioner for Administration)
Common characteristics of the all ADR mechanisms can be listed as follow;
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.

They help to ease the workload of courts;

Not called courts, but follow a similar procedure;
Most of them apply the law and follow legal guidelines;
Some allow legal representation and others not;
Decisions can review by court;
Can litigate where the alternative methods fail to settle the dispute;
Deal with specialized matters;
Some of them make binding orders and others not.

In the given scenario Simon and Romeo have a dispute base on the loss suffered by the Romeo
because of Simon and Rex. But Simon refused to pay that amount on the ground that Romeo
exercised cruelty on his pet.
Romeo has to options to recover his damage;
1. Go for litigation
2. Go for ADR
1) Court litigation procedure
In this scenario plaintiff (Romeo) must file a civil case against the defendant (Simon) to recover
his loss. The case should refer to the District Court. According to the scenario the nearest District
Court is situated 300km away from their hometown. They both must travel long distance which
cost time and money. The fact that we cannot forget here is they both are poor villagers who
depend on farming. Time is an important factor for their lifestyle.
This is a complex procedure and Romeo and Simon themselves cannot handle the procedure.
They both are less educated. On the other hand though they are educated they must get a legal
representation, a lawyer. Both must spend some money for that and wait patiently for the final
result. The exact period of time for the final resolution lie over the predictable.
The court follows the inquisitorial method for proceeding. The parties argue against each other.
The court will not search for a settlement. The wining party at he and of litigation grants all the
benefits and loose party only get the suffering and frustration. Therefore he can appeal for review
of the case. This extend the time of the final decision.

In the District Court the case will resolve according to the statutory and common law provisions.
The case of Romeo and Simon was a very clear one. Previous cases have decided on the same
grounds. The law has established very clear. According to the Darlis Appu v. David Singho21
Simon is liable for the damage occurred by negligence of neighbour and by referring the
Appuhamy v. Singho22 it is very clear that Romeo is en title for receive the damage. But Romeo
has to follow the legal procedure if he goes before courts. But it is a certain he would receive his
damage.
On the other hand for Simon it is wasting his money and time. Because of anyway he will have
to pay the loss of Romeo, which occurred due to the negligence of him according to the courts
point of view. Therefore it will cost the damage plus the amount spend on the court proceeding.
It is a great loss for Simon. So it is a great advantage if he can avoid Romeo going before court.
Anyway here Romeo cannot go for the District Court directly. Mediation Boards Act says;
Action other than those involving the grant of any provisional remedy not to be filed without
certificates of non-settlement,
(1) Where a Panel has been appointed for a Mediation Board area, subject to the provisions of
subsection (2), no proceeding in respect of any dispute arising wholly or partly within that areas
or an offence alleged to have been committed within that area shall be instituted in, or be
entertained by any court of first instance if,
a. the dispute is in relation to movable or immovable property or a debt, damage or
demand, which does not exceed twenty-five thousand rupees in value ; or
(2) Nothing in subsection (1) of this section shall apply to any civil proceedings in respect of a
dispute, where one of the disputants is the state or in respect of a dispute relating to the recovery
of any property, money or other dues by a public officer acting in his capacity as such officer or
to an offence in respect of which proceedings are instituted by the Attorney-General. 23
According to this Romeo cannot go for the litigation without the certificates of non-settlement.
The act state that if the claim is less than Rs. 25, 000 they must refer the ADR first and should try
21 DARLIS APPU V. DAVID SINGHO 4NLR - 241 of 50
22 APPUHAMY V. SINGHO NLR - 460 of 24
23 Mediation Board Act (No. 72 of 1988) Sec 7

to find a solution there. Anyway he should claim to mediation board first and if they couldnt
come to a settlement he must go before the court with the certificate.
If the District court would not allow Romeos claim he can make an appeal to the Court of
Appeal. If the District Court allows the claim Simon can make appeal against the DC decision to
the Court of Appeal. To end this whole procedure it may take years.
2) ADR procedure (Mediation Board)
Romeo can make an application to the Chairman of the Panel of the Mediation Board area, for
settlement by mediation of any dispute, arising wholly or partly within that Mediation Board
area. 24 Romeo can go for the Mediation Board of his area which is operated at divisional
secretariat level.
He has to pay only a small fee and the application should be accompanied by a document
evidencing the fact that the prescribed fee has been paid in the prescribed manner.25
Where any dispute is referred to any Board, the duty of such Board by all lawful means to
endeavour to bring the disputants to an amicable settlement and to remove, with their consent
and wherever practicable, the real cause of grievance between them so as to prevent a recurrence
of the dispute. 26 The board always search for an amicable settlement for the dispute. The
investigation carries out in a friendly environment in friendly manner. The procedure is simple
and legal representation is not required. The board not follows the inquisitorial procedure.
Always focus for a peaceful end with fewer conflicts.
The proceedings complete within the specified time limit within thirty days 27 and in the event
of failure to do so, issue a certificate of non-settlement in the prescribed form signed by the Chief
Mediator stating that it has not been possible to settle such dispute. 28 The result obtains in time.
It only consume 13 days maximum.

24 Mediation Board Act (No. 72 of 1988) Sec 6

25 Mediation Board Act (No. 72 of 1988) Sec 6
26 Mediation Board Act (No. 72 of 1988) Sec 10
27 Mediation Board Act (No. 72 of 1988) Sec 13
28 Mediation Board Act (No. 72 of 1988) Sec 10

The courts also have power to refer the mediation board where the parties are given their
consent. Where an action is field in any civil court having jurisdiction over a Mediation Board
area, in respect of any dispute, the court may, with the written consent of the parties, refer the
dispute to the Chairman of the Panel appointed for that area, for settlement by mediation. 11
Simon and Romeo have more advantages from ADR than court litigation. They must go for a
settlement which is reached through an agreement between them or go for
Alternative Dispute Resolution on the basis;
1.

Both Simon and Romeo are poor villagers. The litigation process is very expensive and time
consuming. They cant bear the cost.

2.

They are not well educated. The court procedures are rather complex in nature. Legal
documents are complex and hard to understand. They have to have an involvement of a third
party. It will cost more.

3.

They live far away from the city. The nearest court is in the city which is located about
300km away from their village. It will increase both the time and cost.

4.

Lawyers do not currently live in their village due to limited population. Therefore they must
go elsewhere for legal representatives. Lawyer costs are comparatively high. It also had
contributed to high cost of litigation. When they happen to go far away for service of
lawyers it will increase the litigation cost further.

By analyzing all above facts ADR is the best available option for them. It is;
1. Less expensive
2. Fewer complexes
3. Available nearby
4. Less time consuming
5. More importantly it will not damage their relationship lot. They are neighbours. Therefore
their mutual affability is very important for their lifestyle.

5.3 Identify the most appropriate ADR available for both Simon and Rome and
give reasons for same.
Simon and Romeo have a dispute about a loss which was faced by Romeo because of the
negligence act of Simon. They are poor villagers of a remote village who had a little education.
The nearest court is situated 300km away from their village.
According to the law of tort Romeo have right to claim damages if he got any loss due to
negligence act of Simon. The dispute is not about the law, it is about whether there is any
negligence or not. If there are proven the negligence Romeo will entitle for damage.
Deciding whether there is any negligence or not is a duty of court, otherwise Simon must agree
to pay some damage by accidence of his own negligent act. By this way they can make a
settlement without going for a litigation process. If they cannot come to an agreement through
negotiations they can search the help of mediator under alternative dispute resolution methods.
ADR typically refers to processes and techniques of resolving disputes that fall outside of the
judicial process. 29
In the given scenario there are many points which could be highlighted directly from the given
factors about the two parties which are included into the dispute.
1.
2.
3.
4.

They are poor villagers

Their village is situated 300km away from the court
They have weak educational background
There are no lawyers residing in the village

Except these there are some other social factors can point out regarding the given scenario.
1. They are neighbours
2. There are only limited population living in the village

It is very clear that under these circumstances it is very difficult to live them as enemies. They
must continue their unity and rapport as usual villagers always bind with mutual relationship
29 http://www.hg.org/adr.html on 2011-10-30

with each other. Other than these they are not people who have very good income. They must
carry out their occupation to fulfil the daily requirement of their families.
This is there background when they enter into current dispute. As I mentioned earlier they have
only two options if they cannot come to a settlement themselves. They are the court litigation
process and the ADR. If this incident happened in Sri Lanka available ADR method is mediation.
According to my point of view court litigation is the better method to resolve any dispute if there
are not practical difficulties. Because the courts are the bodies establish to give a better solution
by analysing the incident subjective manner and apply the prevailing law in congruous way. But
before recommend the court litigation process it is better analyse overall conditions arise from
the scenario.
Practically litigation is expensive, time consuming technical procedure. Though it gives the
finest outcome here it is too harsh to achieve for poor villagers like Simon and Romeo. Therefore
the mediation board would be a better resolution for as concern the given scenario. Simon and
Romeo can have their dispute mediated by a person who is an expert in the relevant field. They
can rely on the decision which is given by the mediator as he is a neutral person. An ordinary
trial involves complicated and technical issues that are not understood by many people. Both
Simon and Romeo are less educated people and therefore the procedure is far more complex to
understand. Mediation board procedure usually takes far less time to reach a final resolution than
if the matter were to go to trial. Most probably it costs significantly less money, as well. It may
be a very good relief to both of them as they are poor people. Furthermore, in the case of
meditation the parties have far more flexibility in choosing, what rules will be applied to
their dispute.
Here considerable factors are economic, educational and social backgrounds of two peasants.
Court litigation arise regressions such as high cost, time wasting, weakening social relationships
and disrepute bind with it. When consider the practical difficulties faced by Simon and Romeo in
the given scenario ADR is the better method to resolve the dispute arose among them.