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Legal News from the Caribbean as of
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Commentary: Whither mediation in the Caribbean after the WICB and WIPA fallout?
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| Published on Thursday, October 1, 2009 | Email To Friend Print Version
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By Abiola Inniss, LLB, LLM
Recently, the art of mediation was put in the Caribbean spotlight because of the dispute between the West Indies Cricket Board and the West Indies Players Association. For those who have no confidence in the system of alternative dispute resolution, the outcome would have given them the opportunity to snigger and utter a resounding ‘I told you so! ’.
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| Abiola Inniss LLB, LLM (Business Law), mediator, and arbitrator, is a legal consultant in business law, and law teacher, who resides in Georgetown, Guyana, with an established practice in Alternative Dispute Resolution |
This essay does not purport to give an evaluation of the mediation process as it was applied under those circumstances, indeed since it was conducted as a strictly confidential undertaking, it would be presumptuous and improper to make assumptions about what could or should have been done.
It is indisputable that the outcome of any mediation depends on the input and willingness of the parties to settle their disputes by consent; it also depends on their ability to do so. It is unfortunate that the WICB and WIPA were unable settle their disputes in a consensual manner but must now rely on another method of alternative dispute resolution(ADR) to do so, namely arbitration. While arbitration has long been used to settle disputes, it relies on a neutral third party to make a decision on the issues before her or him.
The parties relinquish the power held by them for the crafting of their own collective destiny to the judgment of someone who will not have to live with the decision which she or he will make. So one is now left to beg the question whither alternative resolution in the Caribbean?, even before that of ‘what is this mediation thing?’
The first question asked of proponents of this method of dispute resolution, is usually, what is mediation? The answer very simply is that mediation is a form of alternative dispute resolution in which a suitably trained and qualified neutral third party who has nothing to gain from the outcome of the dispute, sits with the parties to the dispute and guides them in the resolution of the matter using particular skills which are usually certified. The mediator is not a judge and so does not settle the matter for the parties; instead she or he aids them in coming to resolutions of their own, so that the final agreement is of their own creation.
The use of mediation as a means of settlement of disputes has become a part of the mainstream of sophisticated legal systems worldwide. This is hardly surprising since these organised systems rely on efficiency and accuracy to make them work. Where mediation is part of the legal system, litigants may be referred to mediation to settle certain aspects of a dispute, and having reached such a settlement, notice of it is given to the judge who will make it into a court order, this is known as court connected mediation. For example, in divorce matters a husband and wife might be referred to mediation to settle the issues of partitioning of property, in some parts of the world this is mandatory, as in the state of New York, United States of America.
This form of dispute settlement is found to be far more efficient, cost effective and satisfying to the applicants because a lot more can be said and dealt with in such circumstances than in litigation. While most people are fed a diet of the fantasy of winning and losing a court battle the harsh realities are far less palatable to most that experience the system.
It takes a significant amount of fortitude to have one’s personal life dragged into open court along with accusations and vilification which will come from the other side. The idea in litigation is to convince a judge and jury using any method possible and necessary that one party’s rights are greater than the other, and so it is often said that he who has the better lawyer wins the case.
Mediation is guided by rules and regulations aimed at creating an environment conducive to productive discussions in which each party is given the same amount of time to disclose their side of the issue. The mediator will then ask questions and guide the conversation so that the parties can work their way through their problems and come up with viable solutions.
Mediation is a particularly popular form of conflict resolution because it can be done almost anywhere, from a living room to under a mango tree. In Jamaica, community mediations have aided significantly in resolving disputes between gang members and between gangs and communities which eventually led to the dissolution of several gangs.
The formula then seems to be that where people can have their grievances aired there is less likelihood of conflict becoming confrontation and confrontation becoming war. The formulation of mediation is based on respect and evenness in the balance of power for all the parties involved, it therefore does not matter if you have a famous lawyer or none at all, in fact lawyers for the parties are present only at court connected mediations and at that time only in the capacity of advisor to their client.
The lawyer’s intervention is minimal or non-existent and the mediator has absolute control of the proceedings. Community or private mediations use the same rules as that of the court connected systems and parties come to those sessions with the understanding that the onus rests upon them to settle the matter for their own benefit, since further conflict would be costly and most times create discomfort and unhappiness in the lives of the parties.
The power of mediation lies in giving individuals the ability to make their own decisions and to have control of their lives, it is used to resolve complex contractual disputes between huge international companies , political disputes in war torn territories and simple issues of sale and purchase of consumer goods. This system is less stressful, less expensive, more manageable and less time consuming than litigation and leaves the parties feeling less anxious and unhappy in the long term.
The public will find mediations useful to resolve issues of landlord and tenancy, sale and purchase, contractual matters, family issues, consumer rights problems, occupational safety, employment law and contract and medical issues and a whole range of other concerns. It is not a panacea, but is recognised world -wide for its ability to manage conflict. It is entirely voluntary and so no one can be forced to attend a session and parties still retain the right to resort to litigation if it does not work. Though it should be noted that the rules of the common law or those laid down by statute can be far harsher on litigants than compromises reached on their own. It is for this reason that mediation should be a first resort to settling of disputes.
It is quite clear from the example of the Jamaican mediation programme, that mediation works even in the most virulent and vicious circumstances .In Guyana and the rest of the Caribbean, other programmes have shown significant potential for great successes in the resolution of disputes.
Alternative dispute resolution, in particular mediation, ought therefore to be marketed aggressively by Caribbean governments and NGOs as a serious game in which everyone wins, since it will require much more than a few optimists to convince the general public that this system can work for them, especially in the face of the WICB and WIPA failure at mediation.
Even as President Jagdeo in his capacity as CARICOM Chairman must be commended for proposing this ADR tool to help resolve the cricket issue, one can only hope that the elected officials Caribbean wide will have the foresight to continue to promote its use nationally and trans-nationally. | | | | Reads : 1089 | | | |
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