Mediation explained

Your edition of June 25, 2013 carried an article from Tony Webster titled Trying to understand “nuances” to which an early explanatory reply appears to be necessary. In that article, Webster is obviously referring to the content of the press briefing from the Chief Justice announcing that he hopes to bring on ADR from September 2013 to assist in dealing with the backlog of cases in the courts.

Webster, in his article, asks a number of questions to which I believe it is important to supply answers so as to clear up the many misconceptions about the process being embarked on. I shall try to respond to each query seriatim.

Webster has asked: “Where is the equity in a person who may have had a case “resting comfortably in the correct and appropriate legal process” for many years suddenly being required to do something in 30 days and having his legal interests turned into “legal anti-matter” or “adjudged” by a brand new, untested (and arguably rush trained) cadre of quasi-professionals?

The central premise of mediation, which is the aspect of Alternative Dispute Resolution that will be initiated, is that there is no “judgment” or “legal anti-matter” being handed down by anyone.

So what is mediation? Mediation is a way of disputing parties attempting to resolve their problems with the process being guided by a neutral third party called a mediator. The mediator’s role is to guide the process, and to assist the parties by helping them to identify the issues between them to be resolved, to have the parties themselves negotiate with each other in a structured non-threatening and facilitative environment in searching for a solution to their issues.

A mediator does not make any rulings like a judge; does not give legal advice and has to remain neutral and even-handed in facilitating the negotiation between the parties. Although the court may have sent parties to try mediation, it would be a breach of ethics for any mediator to attempt to coerce or unduly influence any disputant into reaching an agreement, as all decisions during mediation are to be made by the parties.

At the very beginning of the process, the mediator must advise the disputants that they are entitled to bring the mediation to an end at any time and that the mediator also has the right to bring the Mediation to an end. Any agreement reached is purely voluntary and is fashioned by the parties themselves and their attorneys, not by the mediator.

What are the benefits that may be derived from mediation as opposed to having a court judgment handed down? One is confidentiality, as the entire process is confidential. Nothing said at a mediation can be disclosed in court nor can the mediator be called to give evidence — thus heightening the probability that persons can be frank with each other in mediation without fearing damaging their case if the Mediation attempt is not successful and the matter has to revert to the court.

Another benefit is that disputants may fashion a creative response to their problems that a law court could not give them-at one extreme, some matters have been settled by one party genuinely apologising to say another party who may have brought their case on a matter of principle, especially where the other disputant has previously been “wrong and strong”.

In other cases, where damages had previously been sought through the court, the complainant may quite happily negotiate some other benefit or perquisite which a court would not have been able to award, but which better suits the interests of a party. Even if the mediation does not result in a full settlement, parties would have been able to gain a better perspective on the issues and perspectives of the other disputant.

Mediation is less expensive for litigants and certainly much faster than the court system if the parties manage to solve their dispute. If they do not manage to do so, they would not have lost their opportunity to have the court rule.

In respect of his statement about “brand-new, untested (and arguably rush-trained) cadre of semi-professionals”, I would assure him and the public that many of the persons involved have been undergoing training for many years, some in advance of nine to 10 years and that very well-trained and experienced mediators from the Dispute Resolution Foundation of Jamaica have been engaged to assess and “test” the readiness or otherwise of the persons who are to be on the panel of available mediators.

Webster then says: “From whence comes the power to compel anyone to turn away from the courts? I can see the courts ‘requesting’ this of litigants, but compelling anyone before the court, comes uncomfortably close to duress, from the very fount where duress is normally put to the sword”.

He further asks: “Will litigants who feel injured by arbitration awards, be able to appeal? Would the CCJ accept “any evidence” proceeding from ADR or “precedents” which may be set in the process? “.

My explanation to the previous question asked by Webster has hopefully responded to the misconception that anyone is being compelled to “turn away from the courts”. There will be no awards made from on high by anyone, including the mediator. The parties will either be able to fashion their own response to their issues, or, if they are unable to do so, the matter will remain to be adjudicated in the court. Mediation is not arbitration.

In arbitration, the arbitrator hands down an award which is binding but can be appealed, usually only on a matter of law. No judgment is handed down in mediation. The disputants have full control over whether they can reach an agreement and the content of any such agreement.

The short answer as to whether the CCJ can accept any evidence proceeding from ADR or precedents is that as the entire process is confidential and is fashioned by the parties themselves to meet their own unique circumstances and interests, there is no basis on which any evidence may proceed from a Mediation to the CCJ or any court for that matter.

Where the matter has been settled by the parties, the court will be so advised or where, as under the Family Law Act the court is required to formally approve of certain agreements, the agreement is submitted for the approval of the court. No precedents can be set by a mediation agreement fashioned by the disputants to meet their own interests. It may interest persons to know that one of the bases for not using mediation is where the law needs to be clarified by the courts in order to set a precedent.

The remaining questions asked by your contributor essentially address questions relating to the management of the court system and do not fall within my competence or authority to respond, but I thank Webster for his interest in the subject which has allowed an opportunity to clarify matters relating to the proposed introduction of court-annexed mediation.

Finally, the public may wish to know that court-annexed mediation has worked very well in Jamaica, Trinidad and the OECS territories. It functions extremely well in Jamaica where it was introduced in 2006, having a success rate of 50 per cent. It is hoped that building on its initial promotion by Sir David Simmons as one of the components under the Justice Improvement Programme funded by the IADB, and the efforts of the present Chief Justice Sir Marston Gibson, Barbados will now succeed with instituting mediation into its court system.

— Beverley J Walrond QC

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