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

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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 04-02-20142

Independence of the judiciary, available from; http://www.osce.org/odihr/judiciary, accessed 04-02-20143 C. Leuba, Testimony of Judge Robert C. Leuba, Chief Court Administrator, available from; http://www.jud.ct.gov/external/news/press036.html, accessed 04-02-20144 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.

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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 lawyer’s role become more dominant than in a inquisitorial system where judges role dominate within judicial proceeding. Adversarial system makes the judge’s 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 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.

5 Henry Campbell Black,  Black's Law Dictionary, St. Paul West Publishing Co., 5th ed. , 1979, p 7996 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.pdf8 Rich, W., The Role of Lawyers: Beyond Advocacy, http://www.law2.byu.edu/lawreview4/archives/1980/4/ric.pdf9 Rich, W., The Role of Lawyers: Beyond Advocacy, http://www.law2.byu.edu/lawreview4/archives/1980/4/ric.pdf

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 doesn’t 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.

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.

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/wp-content/uploads/2012/09/GoodWork25.pdf

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 Attorney-at-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 council2. Join a law firm3. Legal officer4. 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 arbitrator’s decision. 14

11 R.Kinder, Law at Work: trade union (Sweet & Maxwell Ltd of 11 New Fitler Lane, London, 1980) 7012 Ibid 13 ibid14 ibid

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 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 The Court litigation

Procedure is simple legal procedure and law are very complex

Less expensive and no legal representation is required

court action and legal representation are very expensive

Not involve adversarial system and do not spoil the relationships between parties

court action has an adversarial nature and 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

15 J.Mcllroy, Law at Work: going to law (Sweet & Maxwell Ltd of 11 New Fitler Lane, London, 1978) 2216 ibid 2217 ibid 2918 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.

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;

20 The English Legal System, Garry Slapper & David Kelly, 11th ed. Routledge, Ch 12, pp 526-527

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 tribunal2. Rent board3. Government departments

E.g. Customs Inland Revenue

4. Commissioner of labour5. Minister of labour6. mediation board7. human right commission8. ombudsman (Parliamentary Commissioner for Administration)

Common characteristics of the all ADR mechanisms can be listed as follow;

i. They help to ease the workload of courts;ii. Not called courts, but follow a similar procedure;

iii. Most of them apply the law and follow legal guidelines; iv. Some allow legal representation and others not;v. Decisions can review by court;

vi. Can litigate where the alternative methods fail to settle the dispute;vii. Deal with specialized matters;

viii. 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 litigation2. 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 court’s 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;

21 DARLIS APPU V. DAVID SINGHO 4NLR - 241 of 5022 APPUHAMY V. SINGHO NLR - 460 of 24

“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 to find a solution there. Anyway he should claim to mediation board first and if they couldn’t come to a settlement he must go before the court with the certificate.

If the District court would not allow Romeo’s 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

23 Mediation Board Act (No. 72 of 1988) Sec 7

24 Mediation Board Act (No. 72 of 1988) Sec 625 Mediation Board Act (No. 72 of 1988) Sec 6

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.

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 can’t 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

26 Mediation Board Act (No. 72 of 1988) Sec 1027 Mediation Board Act (No. 72 of 1988) Sec 1328 Mediation Board Act (No. 72 of 1988) Sec 10

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.

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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. They are poor villagers29 http://www.hg.org/adr.html on 2011-10-30

2. Their village is situated 300km away from the court3. They have weak educational background4. 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 neighbours2. 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 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.