Feature: Mitigate Don???t Litigate – Barbados to Have ADR by September

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Alternative Dispute Resolution (ADR) is coming to Barbados!

With the introduction of a pilot project in September, persons who are involved in disputes such as unfair dismissal, contracts, family law, personal injury and land law cases should be heading to ADR and not to court. However, cases with a constitutional component will continue to be heard before the court.

Persons involved in disputes are being encouraged to ???mitigate and not litigate??? in an effort to bring about a speedier resolution to their matters and to reduce the backlog of cases now before the court.

Statistics revealed by Chief Justice Sir Marston Gibson and Justice Sandra Mason, show that there were 2, 100 civil cases filed in 2011, and 440 family law cases. ???You are talking 2, 500 cases in that one year. We are not even talking about the 23, 000 or so filed in the Magistrates??? Court. There is no way that you can get an expeditious or speedy resolution of your matter if it goes through the ordinary civil litigation process,??? Sir Marston said.

In using ADR, persons will not only have their matters heard faster, but they will also have an opportunity to solve their cases themselves before a mediator. This method would be less costly than the court process.

According to Justice Mason, under the pilot project, which is expected to last approximately two years, an ADR coordinator position will be established to ensure that cases go to ADR.

She explained that cases would first be assigned to a judge, who would decide whether or not they are suitable for mediation through ADR. Once an agreement is reached to have the matter settled via mediation, the coordinator would communicate that to the Registry and the matter would be set for hearing.

The two parties will have an opportunity to select their own mediator from among those appointed, but if an agreement cannot be reached, one would be selected for them by a committee.

Sir Marston explained that in a court setting, persons tended to talk past each other, rather than with each other, and usually did so through an attorney-at-law. The mediator???s objective is therefore to encourage dialogue between the parties.

As a result of the ???frank discussion??? expected to take place during ADR, the officials stressed that all related files will be confidential. In fact, the ADR programme and coordinator will not operate from the Registry.??

???So the files will be covered by confidentiality not only during the mediation, but at its conclusion. The court itself will not know [what is said during mediation]. The judge will not know what happened at the mediation, they will only know the result. It was either settled, or it wasn???t. That is exactly how it will work,??? Justice Mason said.

She added that matters sent to a mediator under ADR must be heard within 45 days and be referred to the court which would be informed whether or not they have reached a decision. However, if there is no agreement, the matter would then be redirected to a judge, and the usual procedures followed, before it is set down for hearing before a court.

Sir Marston added that while a fee would be attached for the mediation process, a figure was yet to be decided.

However, while highlighting the benefits of ADR, Sir Marston and Justice Mason remain optimistic that it would be readily accepted in Barbados. ???Part of the reason why we need this at all is because we have become very much a part of the western practice,??? Sir Marston said.

Justice Mason noted that in St. Lucia, where a similar system was implemented, at least 75 per cent of the people were amenable to mediation. ???People are not amenable to change. It is incumbent on the judge to encourage them to go to mediation. You advise them on the question of cost; there is also the question as to the rules of evidence as against mediation,??? she pointed out.

Meanwhile, the introduction of ADR already has the support of Barbados??? commercial sector, particularly because of the potential for the speedy resolution of issues involving clients and customers.

Noting that ADR was provided for in Barbados??? Civil Procedural Rules 2008, as an alternative to judicial decisions, but was never implemented, Sir Marston explained that the mediators first needed to be trained.

The first part of that training took place in Barbados during the last week of June when Paul Hines and Ursula Khan of the Dispute Resolution Foundation of Jamaica came to Barbados to train 24 people shortlisted as mediators.The training took place at the Supreme Court Complex on White Park Road.

The Chief Justice revealed that the Dispute Resolution Foundation, which had a track record dating back to 1994, had been enlisted to conduct the training.He explained why intense training was so vital: ???A lot of our cases, particularly??our matrimonial and family law cases, involve an emotional component. If you are not ready to deal with that emotional component you will have a problem.

???I can promise you that the emotional component overshadows the legal component. Sometimes you will get a case that you think is legally easy, but the past hurts and difficulties with forgiveness leak into what you are trying to achieve. The point I want to make with regard to ADR specialists and mediators, is that you have to be prepared for that sort of thing. Just taking an exam and getting a passing grade won???t do it,??? he indicated.

However, the Chief Justice made it clear that while steps were being made towards introducing ADR to Barbados, it was not the solution to all the challenges currently being faced by the judicial system.???My approach to resolving issues relating to backlog and issues relating to the smooth flow of cases through our court is to adopt a multi-faceted approach. ADR is only one component; it is only one cog in the wheel, and ultimately we are going to be going through a number of other things.

???ADR is important because it allows for people to actually solve their cases themselves rather than leave it with a judge who may favour the plaintiff or the defendant or neither person. With our pilot project, we expect that some persons may be able to resolve their cases,??? Sir Marston stated.

He added that in the initial phases, the ADR will be conducted in consultation rooms at the Supreme Court Complex, which would allow for as many as five mediations to be conducted simultaneously. However, there are also plans to take the process to the Magistrates??? Court.

julia.rawlins-bentham@barbados.gov.bb

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