MEDIATION THE WAY TO GO
November 10 to 16 is mediation week. It is a week designated by the Mediation Board of Trinidad and Tobago for the promotion of mediation as a reliable and accessible conflict resolution mechanism. The board is a regulatory body created by the Mediation Act No 8 of 2004. Its main objectives under the act are to certify and to regulate mediators, mediation trainers, mediation agencies and mediation training programmes.
As regulators they consider it important that the public be aware of the nature of the process of mediation, its benefits and its various applications, which can have a huge impact in positively transforming lives by peacefully resolving conflict. The theme for this year’s mediation week is Building a Caring and Peaceful Nation Through Mediation. Today, the T&T Guardian continues a series of articles in commemoration of the activities.
In a commercial dispute arising out of a building contract, the parties were at loggerheads for years.
The claim itself spent some years in the court system with applications for further discovery, procedural applications to strike out the case, then appeals to the Court of Appeal over those procedural applications, several case management conferences to manage the boxes of documents being produced by the parties, which they saw as important for the trial and pre-trial reviews to determine which issues needed to be tried. The court referred the matter to mediation. The matter was settled in less than two hours.
In a commercial dispute between landlord and tenant over the breach of a covenant to repair and the landlord’s counter-claim for repossession for non-payment of rent, the case was referred to mediation and was settled in less than 20 minutes.
In a complex medical negligence suit brought by a claimant who alleged the medical institution had botched her surgery, even though the matter was well advanced with pre-trial applications filed, the parties walked away after a successful mediation with a private agreement off the record or, as endorsed on counsel’s brief, after three sessions of mediation. Think about the time and cost that those commercial entities saved in not conducting a full trial.
Think about the uncertainty of the litigated outcome which causes internal corporate panic and the calm of a quick solution to commercial problems. In the Judiciary’s court-annexed pilot project, conducted from 2010 to 2011, where 60 commercial disputes were sent to mediation at various stages of preparation for trial, 60 per cent of the cases were successfully mediated and in many of them the matter was settled in the first session and in less than three hours.
In those cases, 90 per cent of those interviewed said they would mediate their dispute if one should arise in the future. Since 2010, the Mediation Board of Trinidad and Tobago has seen a rapid increase in applications for certification to become mediators from attorneys, corporate counsels, state counsels, human resource personnel, project managers and engineers.
Training programmes in mediation are now being offered to various companies. From speaking to some mediation trainers, it would appear mediation training or exposure may have already become a sine qua non of the development of a CEO or human resource management personnel. There are now four private mediation agencies which were developed by either attorneys or the corporate sector.
They are the Dispute Resolution Centre, Direct Resolve Ltd, Mediate It Limited and Conflict Resolution and Mediation Centre of Trinidad and Tobago. These developments signal that rapidly in the business sector, the word catching on is not “why mediation? but “why not.” Why not indeed. In the commercial world mediation is the most appropriate form of dispute resolution.
Mediation of construction and commercial disputes is in essence a dialogue within a relationship and a quest to determine how this relationship is to work or end. Its attraction in the commercial world can be summarised under the 5 Cs: Commercial solutions, consensus building, continuity to business relationships, taking control over the solution and preserving the confidentiality of the business.
Such a process is more enduring than one that is imposed on the parties and is one of the principal advantages of mediation over arbitration. In the construction industry, for instance, projects may last some years. During that period, disputes frequently arise and it is vitally important to maintain harmonious relationships to see the project through to a successful completion.
If the dispute can be resolved at an early stage, there is less scope for parties to take up entrenched positions, retreat from which may be perceived as a sign of weakness or loss of face. If the parties can establish a precedent for settling disputes, this can only enhance the relationship on site so that a constructive atmosphere with the parties working together to achieve a completion as a team can be established, rather than what is often an acrimonious and adversarial climate on site.
For this reason, the Mediation Board has advocated that the business community should pledge their allegiance to a mediate’s first credo. The mediate first pledge is taken by the company to explore the use of mediation as a first resort to resolve any dispute before pursuing litigation. Indeed, mediate first before litigating must be the new pledge of the business community, not only because of the benefits of mediation but because the rules of court which govern civil litigation promote a culture of mediating first.
In the rules governing the management of cases, a judge is empowered to encourage parties to explore mediation before continuing the litigation. If parties unreasonably refuse to mediate, the court can in its discretion penalise that party in costs. Further, there are pre-action protocols which require parties to explore mediation after exchanging “pre-action protocol” letters.
The fundamental premise of the Civil Proceedings Rules which govern the resolution of commercial disputes is in fact that a trial is a last resort. So for those men and women of commerce who still wish to be unyielding and uncompromising, who prefer to go to their grave with their court clothes rather than mediate … you will find no sympathy with the court.
For attorneys, their role is to counsel their clients on the mediation process. In fact, it is an obligation of attorneys in their code of ethics to seek to obtain reasonable settlements of disputes for their client. It calls for a shift in focus on addressing the interests of a client outside of the acrimony of battle in litigation and co-operating with the opponent to look for logical solutions. Indeed, the quicker a dispute is resolved the greater the benefits to the attorneys’ practice and reputation.
In promoting a mediate first pledge, the Mediation Board is therefore advocating a new culture from “I’ll see you in court” to “let’s mediate.” It is a rational and realistic approach to dispute settlement. It begins and ends with your creativity and sensibility. The opportunities to use mediation to solve commercial disputes are endless, and we are only limited by the extent of our own imagination. (Mediate First).
Extracted From: Trinidad Guardian Newspaper
Published: Wednesday, November 13, 2013