Alternative dispute resolution – also known as ADR – is now fully available to judges and lawyers as a remedy in lawsuits and criminal cases, Chief Justice Sir Marston Gibson has announced.
As a two-day workshop to train new mediators ended at the Radisson Aquatica hotel last night,
Sir Marston told participants that the changes are included in two new practice directions – supplemental protocols to the rules governing civil and criminal matters in the Supreme Court and the Magistrate’s Court. The Chief Justice signed the new protocols into force on February 8.
He said the first change to the practice direction requires the public to be made aware that mediation is now available when someone files a lawsuit.
“In the old practice direction the situation was that mediation was considered to be part of case management.
“Just as it is in the rules, if you look at the CPR [Civil Procedure Rules] you’ll see that between parts 25 and 27 that’s where you’ll get ADR [alternative dispute resolution] being mentioned, not in the Practice Direction,” the Chief Justice said.
Another change allows for automatic mediation. Sir Marston told the audience that while this provision is included in the first Practice Direction, it could not be activated because there were insufficient mediators until last year.
“We said from the beginning that a judge or a master shall send a matter which has been assigned to a judge to mediation unless there are good and substantial reasons for not doing so.”
“The problem was that we only had nine mediators on the roster. There’s no way that we could activate that provision that all cases filed should be submitted to mediation. All of that changed last August because as of last August we now have a roster of 43 mediators.”
In a third new feature, means assessment will allow a litigant to be afforded the benefit of a mediator if they cannot afford mediator’s fees. A means assessment form previously existed only in the magistrate’s court.
“We are so intent on making mediation a part of the justice programme, that where people come in and say we can’t afford to pay the mediator’s fees we’re gonna ask them to complete a means assessment and once we’re persuaded that they’re truly impecunious and unable to pay for the mediation, we are going to set up a situation where they can have mediation pro bono.”
A fourth change is specialisation which does not yet exist within the practice direction, but is pending.
“Again, with nine mediators it’s difficult to have specialists. To have persons trained in family mediation, or persons trained in commercial mediation.
“We are looking at doing specialist training. The mindset of a mediator who is dealing with a commercial matter, is going to be entirely different from the mindset of a mediator who is mediating a family law matter,” Sir Marston said.
The head of the judiciary stressed there is a need to change the way cases are handled in the courts.
He declared: “We always talk about backlog reduction but let me say to you that backlog reduction is not primarily what we need to do. We need to not create backlogs at all.
“So don’t start by reducing the backlog that we have because we are creating a backlog every day that people come in and file cases. As long as we have them sitting there and not being able to properly process them through the system it means that we’re creating a backlog.”
The Supreme Court is to begin holding a series of town hall meetings to make the public aware of the benefits of mediation.
Attorney-at-law and lecturer at the Hugh Wooding Law School, Giselle Yearwood Welch, assured the new mediators that the process can be successful.
“This is about reframing the conversation. So you are going to be reframing your society. It’s not just about the administration of justice but it’s about people, and people are at the heart of mediation,” she said.
Justice of Appeal in Trinidad and Tobago, Justice Charmaine Pemberton, appealed to the mediators to regard themselves as agents of change.
She told attorneys and judges in the workshop that mediation can also enhance their lives both on and off the bench.
Said Justice Pemberton: “You can also use the opportunity as well to uncover new areas of law. I found that so far that maybe the law has become a little stagnated because new issues are not being brought to the fore.
“Those of you who are in practice, use this as an opportunity to explore new issues coming forward. New pleadings, the way you draft your pleadings, new issues, new areas of law you could develop simply from doing an effective client interview and getting to the heart of the problem.”
Workshop participant Wendell C. Smith, a social worker, told Barbados TODAY the process of mediation is “an excellent move”.
“People have the power to resolve their disputes without coming before a magistrate or a judge, all they need is someone to facilitate healthy discussion because the answer lies with them,” he said.
Another participant, counsellor Joycelyn Watts said mediation will make a difference in the delivery of justice, and this process was long overdue.
“What is going to be very important is the sensitization of the public so that they are aware of what mediation is,” she said.