Tuesday, November 23, 2010

Mediation in Caribbean Justice

BY Abiola Inniss, LLB.LLM,ACIArb


The use of Alternative Dispute Resolution in the Caribbean is as yet in a fledgling state and there is little information about it in most parts of the region, except for Jamaica which has a considerably developed ADR scheme which focuses on mediation, and there is substantial ignorance about what constitutes Alternative Dispute Resolution. While Jamaica’s Dispute Resolution Foundation has made significant strides in the promotion of peace and reconciliation in various communities as well as in providing useful support to its Justice system, the example has not resounded strongly across the region. Caribbean Justice systems and seekers of justice remain strongly entrenched in the adversarial, combative methods of resolving matters, even with all the attendant difficulties and disappointments which often accompany litigation. It needs to be clear that ADR usually applies to civil matters (person to person non-criminal claims)and that where ADR is applied in the Criminal jurisdiction it is known as Restorative Justice and remains distinct from the other ADR methods comprising conciliation, negotiation, mediation, and arbitration. In selecting mediation for particular attention in the discussion of Caribbean Justice, it is intended that this form of dispute settlement might be considered within the context of the issues which trouble the region at community levels within Caricom countries and their impact on the Justice system. A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities. Citizens need to see and feel the benefits for themselves in order to promote a culture of mediation, negotiation and conciliation Arbitration is hardly a community based option since it is more suitable for business arrangements and industrial and commercial disputes. The concept and use of mediation in Caribbean Justice requires far more effort and application than is currently exerted. Certainly it is to be hoped that Caribbean leaders in the legal field and in government will not wait for the gates of perdition to be opened upon our society before embracing Alternative Dispute Resolution.