By Dr Lawrence A Joseph
Mediation is a form of Alternative Dispute Resolution (ADR) which enables disputing parties to have an opportunity to settle disputes in the absence of a judge of the court. ADR itself is a collective term for the different ways in which parties are enabled to settle disputes in the absence of a judge. These ways include informal negotiation between the disputing parties, mediation and arbitration. In recent times ADR has been generally accepted by the general public and the legal profession worldwide. Many benefits may be derived from the use of this procedure.
Within the Eastern Caribbean Supreme Court (ECSC) circuit court connected mediation was first introduced in St Lucia as a Pilot Project in 2003. It was so done by Practice Direction No.2 of 2002. Following the success of this project the practice was given the green light in all civil actions filed in the ECSC as from 1 December 2003. This was authorized by the then Chief Justice of the Court, Sir Denis Byron by Practice Direction No 1 of 2003. Since then court connected mediation received widespread acceptability and usage throughout the Eastern Caribbean States.
Part 25.1 (h) of the ECSC Civil Procedure Rules of 2000 provides that the court must actively manage cases by encouraging the parties to use any appropriate form of dispute resolution including, in particular, mediation, if the court considers it appropriate. At any stage in court proceedings, a Master or Judge may make an order referring any civil action filed in the court to mediation.
The parties themselves may by consent notify the court that they wish to have their case referred to mediation and in such a situation, the master or judge would make a referral order. The parties then have the joint responsibility of selecting a Mediator from a roster of trained Mediators but if they cannot agree upon a mutually acceptable Mediator, a master or Judge can make an order appointing a Mediator from the official roster.
The practice direction provides for a Mediation Co-ordinator who has the responsibility of scheduling mediation sessions at an appointed place and time. Parties are required to submit a copy of the statement of case to the Mediator at least 7 days prior to the mediation session. Before the session takes place, parties, including their lawyers, are also required to sign a confidentiality agreement in which they agree that statements made and documents produced in a mediation session and not otherwise discoverable are not subject to disclosure through discovery or any other process and are not admissible into evidence for any purpose, including impeaching credibility.
The notes, records and recollections of the Mediator conducting the session are also confidential and protected from disclosure for all purposes. Moreover, at no time must any party summons, subpoena or call the Mediator as a witness to testify as to the fact of the mediation or as to any oral or written communication made at any stage of the mediation.
After a mediation session or sessions have been held, if parties have come to a resolution of their dispute, their agreement would then be put in the form of a court order for implementation. If they do not agree on a resolution, then the case would be returned for case management and ultimately court trial.
Court connected mediation was launched in Grenada in March 2003. As at 31 December 2013, a total of 891 matters have been referred to mediation. 758 of those have been mediated with a settlement rate of 53%. This form of settling disputes by litigants has therefore picked up steam since its inception in 2003. It is expected that the large backlog of civil cases which are presently before the court and awaiting trial would be greatly reduced.
The benefits of utilizing the mediation procedure are tremendous. The procedure itself is controlled by the disputing parties themselves and not by lawyers; it is informal with minimal legal complexity; the parties have the opportunity to choose their own neutral mediators; there is the likelihood of a speedy settlement; there are the strong possibilities that there would be very practical solutions coming out of the procedure which would be tailored to the interests and needs of the parties; there would be confidentiality of the procedure as opposed to having a trial in open court; it is significantly less costly than having a court trial in the matter; there is the likelihood that the outcome of the procedure would be durable; and the likelihood that relationships between the parties would be preserved.