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Mediation in legal circles

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You may have heard of the word “mediation” in relation to trade union dispute settlements, but it is now a catchword in legal circles in the Organization of the Eastern Caribbean States.

For a long time there has been a need for an alternative method to litigation because of the costs and length of time that matters take in the traditional court system. Mediation has been projected to help resolve some simple matters without the delay and costs that are associated with court litigation. Although it may not be the panacea for all the problems associated with court litigation, it can help to bring quick justice and agreements which are acceptable to both parties.{{more}}

The New Civil Procedure Rules 2000, which were produced to promote efficiency in the Civil Court System, provides for Alternative Dispute Resolution (ADR). As one of the case management objectives, the court has a duty to actively manage cases. In Part 25.1(h), it “encourages the parties to use any appropriate form of dispute resolution including in particular, mediation, if the court considers it appropriate.” Hence at any stage in the case management process a matter could be referred to mediation by the Master. The parties could also request mediation if they are disposed to resolving the matter voluntarily.

What is mediation?

Mediation is a process by which disputes between two or more parties are resolved with the help of an impartial third person, known as a mediator. A mediator is trained to facilitate and assist the parties in reaching an agreement voluntarily.

In St. Vincent and the Grenadines the Court Office has a list of trained and certified mediators consisting of laypersons “of diverse professional backgrounds with standing in the community” including lawyers. The Parties are required to indicate their choice of mediator to the Court and a meeting at the mediation room located at the High Court Office would be arranged.

The method is entirely different to the traditional litigation system. There are no judges, jury or witnesses. It requires the presence of the parties who are involved in the dispute in a roundtable discussion. It anticipates a give and take situation in which the parties are willing to come to a mutual understanding.

The mediator is responsible for leading and guiding the parties through the issues. At the beginning of the session the mediator would inform the parties about the rules of the mediation. Parties are encouraged to speak directly to the mediator and not to one another. The parties could terminate the session at any time if they so desire. If for some reasons, the parties are unable to reach an agreement, then the matter could be sent back to case management. The parties cannot call on the mediator to give evidence in court as to what transpired in the mediation session. The lawyers retained by the parties are allowed to attend the mediation session.

Mediation could be carried out for most civil matters including family and land disputes, personal injuries, commercial contracts, debt collection, employment, wills and estate among others.

Apart from savings in time and money, the main advantage of mediation is that the parties are able to reach an agreement on their own rather than have a settlement imposed by a judge. On the other hand, a party who cannot articulate properly might be at a disadvantage.

• Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com

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