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EVERYDAY LAW: Mediation saves time and money

Cecil McCarthy, [email protected]

EVERYDAY LAW: Mediation saves time and money

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LAST YEAR at the invitation of the Alternative Dispute Resolution Association of Barbados Inc., I had the honour of delivering the lecture to commemorate International Conflict Resolution Day on the topic The Case For The Introduction Of Mediation As A Means Of Resolving Disputes In Family Law Matters In Barbados.

Earlier this year a court-annexed mediation pilot project was started in the Supreme Court. One of its objects is, of course, to reduce delays in the delivery of justice.

In light of the recent focus on matters related to the delivery of justice, over the next few weeks I propose to reproduce edited extracts of my speech. The first below begins on Page 5 of my lecture:

“Mediation is one of the forms of settlement of disputes outside of the formal court system. For the purposes of this lecture I will define ‘mediation’ as a process in which a neutral third party facilitates and encourages communication and negotiation between parties to a dispute with a view to assisting them in arriving at a voluntary agreement.

Mediation is one of the processes of Alternative Dispute Resolution (ADR), which has assumed great prominence in and outside of the judicial systems of most countries of the common law world over the last few decades.

In his book Alternative Dispute Resolution: A Developing World Perspective, Professor Albert Fiadjoe comments on the origins of ADR. He observes: ‘The origins of ADR trace to traditional societies. Traditional societies without the trappings of the modern state, had no coercive means of resolving disputes, so consensus building was an inevitable and necessary by-product of the dispute resolution process. The court system only developed as a necessary by-product of the modern state.

‘Societies in Africa, Asia and the Far East were practising non-litigious means of dispute resolution long before the advent of the nation state, for the building of long-term relationships was the bedrock in which these societies rested.’

Over the past three decades or so, the use of alternative dispute resolution as a means of resolving disputes has gradually gained ground in the common law world.

Reduce cases

The main reasons for use of ADR have been to reduce the cases being heard by judges; to reduce the expense of litigation; and to transform the adversarial nature of court proceedings with a view to finding a more collaborative method of achieving settlement of disputes.

The overwhelming reasons for the introduction of ADR have been the need to counter the delays and to reduce the high costs of administering justice. The extent to which ADR has been employed in family law can be illustrated by considering changes made in jurisdictions such as the United States, Canada, Australia and England where ADR has gradually assumed a pivotal role in the resolution of civil disputes, including matters of family law.

Let us examine some of the changes made in two of those jurisdictions. In Australia, the Family Law Act, 1975, has been amended several times. The use of alternative dispute resolution is now captured in Section 10F of the act which employs the term family dispute resolution and describes it as ‘a process’ (other than a judicial process):

(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and

(b) in which the practitioner is independent of all the parties involved in the process.’

Part III B of the act headed Court’s Powers In Relation To Court And Non-Court Based Family Services  includes among its objects at Section 13A (1)(b) and (d) respectively:

(b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed.

(d) to give the court power to require parties to proceedings under this act to make use of court or non-court-based family services appropriate to the needs of the parties.

Under Section 13C of the act, the court is given power at any stage of the proceedings to require the parties to attend family counselling, family dispute resolution or other family services.

Obligations are imposed on legal practitioners and the principal executive officers of courts to provide persons who are considering instituting proceedings under the Family Law Act with information about non-court based family services (ss. 12E-12F).

Schedule 1 of the Family Law Rules 2004 imposes pre-action procedures, which are generally compulsory.

The effect of these provisions is that before commencing a case, each prospective party must use alternative dispute resolution methods unless there is an exemption as set out in the Rules.”

Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]