‘Give me a pound of flesh cut off nearest his heart’

by Justice P.H.K. Kulatilaka

[ Part 2 ]

Judgement of the court was delivered in the following terms;

‘A pound of flesh that same merchant’s flesh is thine; The court awards it, and the law doth give it …And you must cut this flesh from off his breast.

The law allows it, and the court awards it’.

Delighted

Shylock was highly delighted. Albeit, he was caught unawares when the court pronounced rest of the order, to wit; ‘Therefore prepare thee to cut off the flesh.

Shed thou no blood; no cut thou less not more But just a pound of flesh, if thou cut’st more or less than just a pound, be it but so much As make it light or heavy in the substance… Thou diest and all thy goods are confiscate’.

A counter charge was brought against Shylock. He pleaded for mercy and he was released on condition that he became a Christian and left all his belongings on his death to his daughter.

Shakespeare’s drama gives a vision to the people in litigation. If and when an opportunity is there it is advisable to compromise and settle the case, otherwise, at the end of the day you may have to regret because you may be the loser. Humans in their inter personal relationship experience conflict at one time or another in the process of day-to-day interactions.

This may result in litigation both civil and criminal. Since all such conflict are not inherently destined to follow a negative course prospective litigants with wise counselling may be fortunate enough to settle their cases without getting involved in costly and protracted litigation.

The legislature in its wisdom brought in very important Acts and Statutes crafting provisions to induce litigants to settle their differences.

Mediation Board, a home-grown mechanism, springs up from the people themselves. The disputants are being heard by their own peers. For each Mediation Board Area, there is a Panel of Mediators. Each Board is made of three members including one member selected from each disputant.

Mediation Commission is appointed by the President and consists of five people three of whom are retired Supreme Court Judges or Court of Appeal Judges.

The Commission appoints the Panel of mediators after an interview. The Commission is very careful in selecting the most suitable people as members of the panel. The writer had functioned as a Commissioner.

Training

Once they are appointed they have to undergo training under qualified trainers.

Unlike in a court of law no fees are involved. No lawyer, agent or other person is permitted to appear. Albeit, either spouse, a parent or guardian of a minor is permitted to appear. Both parties are free to discuss the issues involved.

Irrespective of who they are everybody is treated alike. There is a sense of freedom and voluntariness. There are no victors or losers.

Any person may make an application to the Chairman of the Mediation Board [Samatha Mandalaya] for settlement through mediation any dispute arising wholly or partly within the Mediation Board area.

The civil disputes that are to be resolved are specified in section 7 of the Mediation Board Act as amended.

The Board has power inter alia, to resolve disputes in relation to movable or immovable property or debt, damage or demand the value of which does not exceed two hundred and fifty thousand rupees in value. Even the Bank loans are caught up in this.

Third Schedule to the Act specifies the matters over which Mediation Boards have no jurisdiction.

The offences which can be resolved by mediation is enumerated in the Second Schedule to the Act. If the parties to a dispute have not gone for mediation in terms of the Act the Magistrate’s Court or the District Court as the case may be refer the matter to the relevant Mediation Board for settlement.

To be continued