Alternative dispute resolution project to launch next week
THE WAY DISPUTES and grievances are settled in Barbados is about to undergo a major change.
Come Wednesday, November 25, the Court-Annexed Mediation Pilot Project 2015 will be officially launched at the Supreme Court, White Park Road, St Michael.
It will open the door to cases dealing with unfair dismissal, contracts, family law, personal injury and land law cases (such as those cases involving disputes between neighbours), being sent to mediation.
However, there are exceptions that would not qualify for mediation. Those are urgent applications; constitutional proceedings under the Administrative Justice Act Cap 109 of the Laws of Barbados; writs of habeas corpus; admiralty proceedings; land title proceedings and bail applications.
On the surface, the benefits to Alternative Dispute Resolution (ADR) are twofold, mediation coordinator Harriett Payne told the Barbados Government Information Service in a recent interview. She explained that while cases sent to ADR would inevitably result in fewer cases clogging the justice system, it is also a cheaper and faster option for both sides involved.
In addition, persons going through mediation would benefit from being able to resolve the issues themselves, with the mediator acting only as the facilitator, and remedies to solve their disputes being agreed to that could not be arrived at in court.
Chief Justice Sir Marston Gibson revealed earlier this year that there were 2 100 civil cases filed in 2011 and 440 family cases. That is an average of 2 500 cases being filed in one year at the High Court, and another 23 000 filed in the Magistrates’ Court.
So just how will the mediation process work?
Payne explained that when a case meets the mediation criteria, a judge or Master of the High Court can make an order referring the action filed to mediation. Alternatively, the two parties may also consent and notify the court that they wish to have their case referred to mediation, after which the judge or Master would make a referral order.
After that order is made, each party will be required to submit a copy of the statement of case and “statement of issues” to the mediation coordinator, which would then be forwarded to the mediator at least seven days prior to the session.
In addition, each side would be required to sign a confidentiality agreement at the beginning of the mediation session.
Once it is agreed or decided that a matter is to be dealt with through ADR, it becomes the joint responsibility of the parties involved to select a mediator mutually agreed upon. However, in the event that the two sides cannot reach an agreement, Mrs. Payne said the mediation coordinator would then select one from a roster of mediators to hear the matter.
“The mediation coordinator is responsible for the scheduling of mediation sessions inter alia, which shall be conducted either in the Supreme Court building or in facilities under the management and control of the Court,” she stated.
She explained that mediation sessions were expected to last for three hours, but could be extended if more time was required to resolve the matter. “All parties to the mediation are required to attend the mediation session. The benefits of the mediation process include face-to-face meetings, attempts at persuasion and sharing of interests by the parties,” Payne pointed out.
Dates scheduled for mediation should be mutually agreed upon by the parties involved. But, in the event that one of the parties fails to attend the session, the mediator is required to file a Certificate of Non-Compliance with the mediation coordinator.
At the end of the mediation, the mediator is required to complete and lodge the Notice of Outcome of Mediation with the mediation coordinator for filing at the Court Office. Once an agreement has been reached, both parties and the mediator will be required to sign the document, which would then be lodged with the mediation coordinator, also for filing with the Court.
Payne further noted that within seven days after the agreement is signed, the parties would then apply to the court for an order in terms of the Agreement. That order would be made by the judge or Master of the Court.
However, in the event that no agreement is reached at mediation to resolve the issues in the disputes, she added that the matter would be returned to the judge or Master for case management and a possible trial date set for hearing.
Payne noted that so far, the success rate for mediation was “fairly high”, both in the Supreme Court and Magistrates’ Courts.
Mediators are presently trained under the Improved Access to Justice in the Caribbean project, funded by the Government of Canada and conducted through the University of the West Indies. The mediators are chosen from different backgrounds ranging from police officers, doctors, nurses and members of civil society. Each mediator must be trained and evaluated by the Supreme Court and, once the stipulated requirements are met, those selected are then placed on the Supreme Court’s Roster. (BGIS)