Disputes in life are inevitable, whether in our personal or business lives.
In our culture, our minds have been conditioned to think of the court as the channel to resolve our disputes. However, legal systems world over have been bursting at the seams with challenges in their ability to resolve our disputes, and experts have also determined and are confirming that often, the court system is not the best medium for dispute resolution.
There has therefore been a developing complement to the court system known as ADR (meaning Alternative Dispute Resolution). ADR can refer to everything from facilitated settlement negotiations to arbitration systems that look and feel very much like a courtroom process.
The popular ADR methods used in Grenada are arbitration, mediation, negotiation and conciliation, and less known but incorporated into certain specialized contracts, adjudication.
This week’s article would address mediation in greater detail than done in an earlier article, and the others would be addressed in coming articles.
Many of us are familiar with mediation as our court has implemented a formal programme since 2006, implementation having been delayed by Hurricane Ivan and its effects.
By mediation, the parties in dispute are the ones to determine what exactly would settle their dispute – what, when, how. They are not required to accept a solution crafted by a third party. They arrive at their solution with the assistance of an impartial third person, who is called the “mediator.”
An agreement to mediation can be arrived at pre-dispute, as in the context of contractual relations, or after the dispute has arisen. Even in the context of a matter filed in court, where the judge considers that the matter should be referred to mediation, the parties must both agree, and record their agreement before the mediation session has started. Absent agreement of the parties, mediation cannot proceed.
In the context of the programme in Grenada, there is a pool of persons trained and certified to act as mediators. Even who will act as mediator has to be agreed by the parties, or the method to select the mediator has to be agreed (in the contractual context).
Once mediator and alternative mediator, time and date, and place for the session (usually the Mediation Centre at Scott Street) are agreed, the mediation session can proceed. You can even participate via videoconference if you are out of the island. Most matters are capable of resolution within the initial 3 hours slotted, but where additional time is required, the parties can also agree to this.
Mediation fees, including the cost of legal representation, are far cheaper than legal fees for a matter to be processed through the court system, even where parties choose to engage an attorney-at-law to assist them through the process. While an attorney-at-law can be very helpful in understanding and resolving the matter via mediation, one does not have to be engaged.
One of the hallmarks of mediation, and one of its important advantages, is its confidential nature. The court has rules which ensure that the confidentiality of the mediation, which is subject to an express agreement before the session starts, is preserved.
Because mediation is confidential and inexpensive, and it has enjoyed a substantial rate of success in Grenada, the process is worth risking.
It is also noteworthy that a mediation agreement, unless the parties so specify, can be enforced by a court of law, so to that extent, it provides the benefit of a judgment given by the court, without the expense and time awaited to obtain one.
However, the beauty of mediation is that because the agreement is one that the parties voluntarily entered into, and its details were created by them, the probability of them complying with its terms are considerably higher than compliance with a judgment of court. It is rare that a party would default on a mediated agreement.
Grenada Bar Association
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