I SSUE

ONE

RESOLUTIONThe Volume 2 Issue 1 April 2018

A Newsletter by the ADR Specialist Clinic Hugh Wooding Law School

Moving beyond the Sword of Litigation - to mediation

The New Lawyer - A view on more trials versus negotiations

The benefits: Mediation is the way to go!

Seven questions on mediation – sharing perspectives

IN THIS ISSUEOpening Remarks

In this second issue, a special project comprising two Alternative Dispute Resolution (ADR) Specialist Clinics of the Academic Year 2017/2018, the Hugh Wooding Law School showcases interesting and diverse contributions from its ADR Programme. The ADR Specialist Clinics provided the opportunity for exposure to training in mediation techniques of the mediator (30 contact hours) and for interaction with real life mediators through interviews conducted and a field trip to a mediation centre in Trinidad.

Legal Career - More use of ADR

than trials?Mr. Patterson Cheltenham Q.C.

1418

Mediator Success Stories

Ms. Elizabeth Solomon

Difference to mediation of well-prepared attorneys

Mrs. Hazel Thompson-Ahye

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The Alternative Dispute Resolution (ADR) programme at the Hugh Wooding Law School presents this second issue of its Newsletter -The Resolution.

A CAREER IN MEDIATION

VIABLE NOT? OR

3 4

2PAGE 2

CONTENTSA Career in Mediation

-Viable or Not?

Strategies from the frontline - where peace and conflict intertwineConversation with Elizabeth Solomon By Jacqueline Belgrave

A mediator success story - Featuring Ms. Natasha SeecharanBy Victoria White

Seven questions on mediation - sharing perspectivesWith Ms. Paula Maria Fortuné By Vishal Kissoon

Considering Career viability as a mediatorBy Renelle Maharaj

Moving beyond the Swordof Litigation - to mediation

By Glendon Greenidge, Kaycia Ellisand Sueanna Frederick

Embracing ADR -A perspective on regional opportunities

By Lisa-Anne Arthur

Mediator Success Stories

Difference to mediationof well-prepared attorneys

Preparation of the Attorney -making a (positive or negative) difference

to mediation outcomes? Featuring Mrs. Hazel Thompson-Ahye

By Codie Hinds, Aliyyah Khan, Asha Smalland Shayne Williams

Legal Career -More use of ADR than trials?

Negotiating, Mediating or Litigating - More or Less in 30 years? Real Life Story - Mr. Patterson Cheltenham Q.C.By Lisa Somra

The New Lawyer - A view on more trials versus negotiationsBy Kemar White

Achieving a More Peaceful Society -through mediation featuring Justice V. KokaramBy Jayanti Teeluckdharry

Forecasting - to 2048: Properly equipped for mediationBy Dayna Taylor-Lavine

Justice and the Law - the end and the means?By Gregg Rampersadsingh

The benefits: Mediation is the way to go!By Mariah Celestine

Mrs. Giselle Yearwood Welch

Mediation Representation- Bagging Your Special Tools!

3PAGE 3

What’s in your bag of special tools as you leave law school? What’s in your bag of special tools if you have been practising law for several years? ‘Mediation Representation is in my bag!’. This should be the ready call. It is a different approach to the representation of your client in a trial. But what does mediation representation really mean? This means being trained to appear in the mediation, together with your client. In this case, it is different from a trial, where you appear before a judge who makes the decisions (judgment). In mediation, the setting is before a third party neutral (the mediator) who will typically make no decisions on the outcome (unless there is mutual agreement of the parties for the mediator to do such). Rather, the mediator expects that you will be prepared to assist your client in devising innovative solutions to the client’s problem. You are expected to understand the techniques of negotiation involved during a mediation.

Are you ready then for a change in your approach to representation? This requires you to understand your role - what do you actually do as an attorney in a mediation with your client? Do you merely show up and leave all the talking to your client? Are you familiar with the structure and phases of a mediation session? Do you know how to use the power of the mediator in a caucus? Do you understand when to call a caucus? How do you communicate in a mediation? Do you say, “I

object m’lud”, as in a trial? What are the expectations that the mediator has of you, the attorney, and your client? What can you do if the mediator says that he/she only wants to hear from the client? If these, or any other, questions are troubling you, or, have crossed your mind, and you have chosen to ignore them, be troubled no more. The time has come for you to move beyond your trial advocacy training or, the adversarial orientation, to which you gained exposure at law school and in practice.

Your bag of tools in this evolving world – where space is being unveiled for a new type of advocate – requires you to build on your skills to become the mediation representation advocate. This mediation representation advocate still has a sharp probing mind; however, this mediation representation advocate probes to build collaboration with the other side, rather than slay them as under trial cross-examination. This mediation representation advocate understands the power of paraphrasing and effectively communicating (by words and body language),

Mrs. Giselle Yearwood Welch, Attorney-at-Law Tutor/Course Director Alternative Dispute Resolution Programme/Mediation AdvocacyHugh Wooding Law School

Mediation Representation

Bagging Your

Special Tools!

How do you communicate in a mediation?

Do you say, “I object m’lud”, as in a trial?

4PAGE 4

so that the other side feels heard and acknowledged. Where will you fit into this vision of a new world of advocacy?

The captivating vision for our Caribbean landscape is that we can produce a cadre of Caribbean-bred attorneys who can start conversations from a perspective beyond belligerence. Since 2010, the Hugh Wooding Law School has been training persons both with mediation skills and techniques as mediators, or with skills that will equip them to be mediation representation advocates, as attorneys, representing their clients in a mediation. This has been accomplished through early exposure to negotiation and mediation representation techniques. The goal is that by 2020, approximately 1500 attorneys would have been trained.

The effects should then be noticed in the next decade or so (between 2020-2030), within the Caribbean region, that we possess within our midst a cadre of robust and well-informed mediation-minded attorneys. The expectation is that these attorneys will be better able to negotiate or mediate the litigated or non-litigated case (recalling that mediation is facilitated negotiation with a third party neutral)– be it family, commercial, shipping or construction matters - with a tool bag of mixed negotiation techniques and approaches. These attorneys will appear at mediations, be well-prepared and understand the meaning of an opening statement in a mediation, or be ready with a briefing or position paper. These attorneys will understand the importance of an agreement to mediate (before the mediation begins) and their role in drafting the terms of the settlement agreement (at the outcome of the mediation). These attorneys will have done their homework with their analysis of the BATNA (best alternative to a negotiated agreement) and WATNA (worst alternative to a negotiated agreement). These attorneys will also have their prepared representation plans

(outlining their negotiating strategies) in advance, with built-in flexibility for creative options and solutions mapped to both their client and the other side’s interests.

The approach will no longer be that mediation is just something for the attorney to run with ‘on the fly’. In this emergent Caribbean context, our attorneys will be attentive, fully focused on using mediation effectively and be problem-solvers, all while still advancing their clients’ interests. Attorneys will now be seen as the promoters of, rather than the hindrances to, the progress of mediation. Attorneys will give mediation its due respect as a meaningful process with impactful outcomes.

So, where do you stand with your toolbag today? Start nailing your readiness for the mediation ignition, within or without a court-mandated process, by arming yourself with your toolbag of mediation representation skills. This can only augur well for positive conflict transformation and a more sophisticated practice of the law. I can hardly wait!

Attorneys will now be seen as the

promoters of, rather than the hindrances

to, the progress of mediation.

Aliyyah Khanattentive, authentic,

assertive

Jacqueline Belgrave just, jovial, joyous

Kaycia Ellis empathetic, easygoing,

enthusiastic

Lisa-Anne Arthur assertive, amiable, articulate

Sueanna Frederick focused, fearless, formidable

Glendon H. Greenidge go-getter, honest, good

CONTRIBUTORSADR Specialist Clinic -The Mediator In You 2017/2018

Mariah Celestine caring, compassionate,

charismatic

Codie Hinds cool, calm, collected

Vishal Kissoon vibrant, victorious, vigilant

Monic Lennardmodest, mindful, mannerly

Renelle Maharajresponsible, reasonable,

realistic

Gregg Rampersadsingh go-getter, gallant, grateful

Asha Smallattentive, affectionate,

ambitious

Lisa Somra straightforward, strong,

successful

Dayna Taylor-Lavine dainty, disciplined,

dependable

Jayanti Teeluckdharrytrustworthy, truthful,

tranquil

Victoria White worker, wise & wonderful

Kemar White workaholic, wise, witty

Shayne Williams sincere, sensitive, sweet

BARBADOS BARBADOS TRINIDAD & TOBAGO GUYANA ST. LUCIA GUYANA

BARBADOS TRINIDAD & TOBAGO TRINIDAD & TOBAGO TRINIDAD & TOBAGO TRINIDAD & TOBAGO TRINIDAD & TOBAGO

BARBADOS

BARBADOS

BARBADOS BARBADOS TRINIDAD & TOBAGO TRINIDAD & TOBAGO BARBADOS

Hugh Wooding Law School Administrative Staff - Mrs Shenika Cashie-Daniel (Prin ng/Publica on assistance).General Editor - Mrs. Giselle Yearwood Welch (Hugh Wooding Law School Staff)

Editorial Panel - Mrs. Cheryl-Ann Jerome Alexander ( Senior Tutor), Mrs. Giselle Yearwood Welch (Tutor/ Course Director, ADR Programme and ADR Specialist Clinic, Hugh Wooding Law School), Mrs. Annika Fritz-Browne

(Tutor, Legal Aid Clinic and Guest Co-Tutor, ADR Specialist Clinic, Hugh Wooding Law School),

Editorial contributions are welcome for future issues and can be provided to the General Editor.Digital Rendering - Carlyle Mason, Communica on Alterna ves Ltd.

SPECIAL THANKS to the Principal, Ms Miriam Samaru, and the Senior Tutor, Mrs. Cheryl-Ann Jerome Alexander, for their continuing support to the

ADR programme and the motivation to keep progressing. Onwards and upwards!

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Considering Career Viability as a Mediator

It goes without saying that the average person in our society today has the belief or, is somehow connected to a person who strongly perceives, that the most viable careers are within the fields of Medicine, Law or Engineering. A career in any of these fields is deemed practicable simply on the basis that it offers the path eventually to being lucrative. When assessing the viability of a career, society somehow co-relates this with earning capacity. Forbes published an article in 2013 entitled, “America's Most Surprising Six-Figure Jobs,” by Klaus Kneale in which it stated that mediators and arbitrators made the six-figure cut for top earners. The difference between the United States of America (USA) and the Caribbean is that mediation (as a formal profession) is fairly new within the Caribbean society whilst in the USA, mediation has been around for a very long time. The Caribbean Society’s unawareness of what mediation is, and its impact on resolving issues, contributes to the reason why becoming a mediator may not be perceived as a viable career. The average person on the street may not know that mediation is available as a tool to resolve a legal problem. Going to court is perceived to be the only option. The mission of the Mediation Board of Trinidad and Tobago is, “To create a culture in Trinidad & Tobago of promoting peaceful interventions and harmonious relationships in the settlement of disputes. To this end, members of the public are encouraged to learn more about mediation as

an effective conflict resolution tool.” However, spreading the awareness of alternative dispute resolution will, in time, heighten the demand for more mediators and, it will be deemed a more viable career choice by Caribbean society.

In assessing whether becoming a mediator is viable as a career, it is important to look at the process of becoming a qualified mediator and the accessibility to the average person. Section 1 of the Third Schedule in the Mediation Act of Trinidad and Tobago Chap 5:32 (‘’Mediation 6PAGE 6

By Renelle Maharaj

To create a culture in Trinidad & Tobago of promoting

peaceful interventions and

harmonious relationships in the

settlement of disputes. To this end,

members of the public are

encouraged to learn more about mediation as an effective conflict

resolution tool.

Act’’), lays out the requirements for a person to become a certified mediator in civil non-family matters. A person must complete a minimum of 40 hours in a standard mediation training programme accredited by the Mediation Board, and must also meet the requirements of observation of a minimum of four mediation sessions conducted by a certified mediator, together with the conduct of four mediation sessions under the supervision of a certified mediator. This is then followed by an assessment by the Mediation Board. Training programmes are quite rigourous and these programmes may be expensive for the average person. Some programmes cost between Trinidad and Tobago Dollars $7,500 (US$1200) to Trinidad and Tobago Dollars $15,000 (US$2500) for five-day sessions. Whilst they are accessible to the public, affordability poses an issue which may deter persons from considering becoming a mediator. The viability of mediation as a career option may therefore be challenged, on the basis of affordability alone. Recently, Trinidad and Tobago has seen a shift in the way that civil litigation is conducted. The introduction of the Civil Proceedings Rules 1998 has led to more civil cases being resolved at the Case Management Conferences (CMCs) stage. This is the stage at which the court usually orders the parties to utilise the process of mediation to attempt resolution. The promotion of mediation is consistent with the overriding objective of dealing with cases justly. Utilising the process of mediation not only lessens the strain of trials in court but it increases work for mediators. The culture of our judicial system is therefore slowly, but surely, changing through incorporation of mediation into CMCs. Following the Inaugural Mediation Symposium hosted by the Mediation Board of Trinidad and Tobago on the 12th November, 2010 at the Hyatt Regency hotel

(Trinidad) with its theme,’Building a Culture of Mediation in Trinidad and Tobago’, the first Court-Annexed Mediation Pilot Project in Trinidad was initiated in March that year. In the Pilot Project, the Dispute Resolution Centre of Trinidad and Tobago (DRC) supplied the certified mediators and conducted an extensive court-annexed mediation training programme with the mediators. The Pilot Project was designed to cater for 60 civil non - family matters and achieved a 60% settlement rate (a second Pilot Project subsequently followed). This statistic can be improved within the coming years when Trinidad and Tobago becomes more attached to the idea of using this tool of dispute resolution. The first Pilot Project shows that there is an initiative to cascade the mediation culture throughout Trinidad and Tobago. This can make becoming a mediator a viable career.

As our Caribbean society begins to embrace the culture of mediation, this, in turn, expands the demand for mediators. If given some time, there is a possibility for the Caribbean to be on

par with Canada and the USA, in the way that our society treats mediation. The recognition will come that being a mediator can be, not only purposive (aiding in the

administration of justice) but, profitable. So, put promotion (awareness), practicability (affordability) and process (training) altogether, and this will lead to more viability, in the long-run.

7PAGE 7

As our Caribbean society

begins to embrace the culture

of mediation, this, in turn,

expands the demand for mediators.

References:Civil Proceedings Rules 1998 (Trinidad and Tobago)Kneale, Klaus, 2013. America's Most Surprising Six-Figure Jobs, Forbes Magazine, available at www.forbes.com/2009/05/28/surprising-six-figure-careers-leadership-jobs. Mediation Act of Trinidad and Tobago Chap 5:32

8PAGE 8

By Glendon Greenidge, Kaycia Ellis and Sueanna Frederick

Moving beyond the Sword of Litigationto mediation

Mediation as a recourse

Mediation, as defined by the Eastern Caribbean Supreme Court (ECSC) Civil Procedure Rules 2000, is a structured dispute resolution process where an impartial third party, the Mediator, meets with disputants in an effort to identify the issues, explore options and clarify goals, outside of a court environment.

In recent years, the idea of utilising mediation as a primary method of dispute settlement has taken root in the Caribbean judicial systems. In Trinidad and Tobago, the Mediation Act No 8 of 2004 (“Mediation Act, 2004”), was enacted to facilitate the use of mediation. Section 14(1) of the Mediation Act 2004 provides for court-annexed mediation in matters, other than criminal matters. Similarly, the ECSC has adopted the approach that mediation, and by extension court-annexed mediation, is useful and beneficial within Caribbean societies.

Rule 6 of the Mediators’ Code of Ethics of the Mediation Act 2004 states that a mediator shall make the mediation parties aware of the option and importance of consulting other professionals, to assist the mediation parties in the making of informed decisions. This recognises the avenue available for attorneys-at-law, who are trained as mediation advocates, to represent and assist

their clients during mediation. Furthermore, the opportunity exists for specialization, as the Mediation Act 2004 recognizes the need for family mediators.

In Guyana, mediation was introduced in 2003 by former Chancellor Justice Carl Singh, CCH (Cacique Crown of Honour, one of three of the highest national awards of Guyana) with the aid of the Carter Center (an international observer mission set up in Guyana since 1992 by former United States President Jimmy Carter to strengthen the rule of law, civil society and governance, including fostering peacebuilding). The current legal framework for mediation is contained in the Civil Procedure Rules 2016 (CPR), Family Proceedings and Procedure Rules 2016 and Alternative Dispute Resolution Act 2010 No. 24 of 2010 Cap 7:05 (“the ADR Act”). The Family Court of Guyana has also adopted a mediation approach in many family law cases. Justice Younge, who presides over the Family Court, has explained that, “For the most part we try to get [parties] to [arrive at] an agreement which is satisfactory for both sides …we are dealing with human beings and a lot of emotions. So, sometimes you find that persons want to hold onto their positions; so, you have to get them to recognise that it is not about them, but the child.”

In former years, the sword of litigation served as the primary tool of seeking justice and obtaining

vengeance. However, alternative dispute resolution procedures, in particular mediation, are becoming the new tools in the pursuit of justice, whilst simultaneously providing an attorney-at-law with his daily bread.

Une célébre cause - Honoré Daumier Artist (1808 - 1879) www.repro-tableaux.com

9PAGE 9

Training Mediators and Mediation Advocates

Improved Access to Justice in the Caribbean (IMPACT Justice Project), which is funded by the Canadian Government, has also trained approximately 240 persons as community mediators in Barbados, Dominica, Jamaica, St Kitts and Nevis and St. Vincent and the Grenadines. Thirteen of the forty-one mediators who were identified as court–connected mediators by the ECSC, are attorneys-at-law. Additionally, there are currently 65 trained mediators on the Court roster in Guyana, all of whom are attorneys-at-law. This is in stark contrast to a mere 19 trained mediators in Guyana (as at 2003). This data puts into sharp focus, the possibility that mediation is likely to become a viable career path for upcoming attorneys-at-law, as well as seasoned practitioners.

Through interviews conducted with student attorneys from the Hugh Wooding Law School, legal practitioners and members of Judiciary in the OECS (The Organisation of Eastern Caribbean States), Guyana, and Trinidad, many persons agreed that practising as a mediation advocate, or as a mediator, has the potential to be holistically and financially beneficial. The interviewees expressed the view that the public’s attitudes towards mediation were evolving, and in so doing, this facilitates the possibility that trained attorneys-at-law could work as full-time mediators or mediation advocates.

Roles available in ADR- avenues Candice Ducreay, Dominican Student Attorney, suggested that, “Mediation is being recognised more widely as a special skill to have, in dealing

with conflicts. A mediator now has an important role in law to bring two strongly opposing sides to a common ground beneficial to both parties.” Vincentian Student Attorney, Kensha Theobalds, shared a similar view, observing that, “Presently in St. Vincent and the Grenadines, mediation is being used more frequently in comparison to 10 years ago. Attorneys and the ordinary citizen are now more knowledgeable and trained in dealing with matters at mediation and, are now choosing to settle their matters via mediation agreements, rather than going to court”.

Mr Teni Housty, Guyanese attorney-at-law and certified mediator of 15 years, recommended that, “As a young Student Attorney, [you should] add mediation to your legal arsenal. Your training is as a lawyer first. Mediation is an asset to the lawyer. The more experience you gain in life, the stronger you are as a mediator. Pursue mediation as a career, not [only] but, in tandem with a legal career”.

The Stitt Feld Handy Group (experienced Canadian mediation trainers) have further expressed the view (on their website www.sfhgroup-com/alternative-dispute-resolution) that due to the increase of conflict in the workplace inclusive of employee conflict, labour disputes and discrimination claims, and the escalating costs attached, employers are increasingly turning to ADR as a solution.

When asked specifically about whether mediation was capable of being a viable career, most interviewees agreed with the proposition. Algitha Richelieu, a Student Attorney from Saint Lucia stated, “It is a viable career option as we have adopted new methods of settling matters which can be tried in court and also, as modern-day attorneys, [we must seek to] encourage clients to take a cost-effective and less time-consuming method of settling matters. However, it will become even more viable in the future when the general public becomes more sensitized about the other methods of conflict resolution, which, above all else, are confidential”.

For the most part we try to get [parties] to [arrive at] an agreement

which is satisfactory for both sides

…we are dealing with human beings

and a lot of emotions.

10PAGE 10

Mrs. Nalini Persad-Salick, Course Director for Legislative Drafting and Interpretation at the Hugh Wooding Law School, expressed her belief that mediation was the way forward and that being a mediator was a viable career. However, she opined that although mediation has the potential to be both professionally and economically rewarding, we must be willing to give it a chance.

Costs of Training

Another consideration in determining whether mediation is capable of being a viable career is the cost of training. The Hugh Wooding Law School currently provides student attorneys with an optional course in Mediation Advocacy which is focused on training attorneys to represent a client in mediation. However, the cost of becoming a trained mediator varies within the Caribbean. For example, in Trinidad and Tobago, the Dispute Resolution Centre provides a specialized package of Conflict Resolution and Mediation Workshops. Other training providers in Trinidad and Tobago which provide mediation training workshops include the Conflict Resolution and Mediation Centre and Mediate It Limited. The Stitt Feld Handy Group also facilitates training workshops on dealing with difficult people and other conflict resolution workshops in Port of Spain, Trinidad. One of Stitt Feld Handy’s training programmes (Dealing With Difficult People) is currently advertised online on their website at a cost of USD $1800 (carded for 2019). Additionally, the UWI St Augustine Campus offers a Graduate Diploma in Mediation Studies and Masters in Mediation Studies.

Fees payable to mediators

The fees which are paid to mediators have also had an impact on the views of attorneys-at-law on whether mediation may be a viable career. In Guyana, the first three sessions of three hours are funded by the Government of Guyana at

$20,000 GYD ($100 USD) and thereafter the cost is borne by the parties at an hourly rate of $8,000 GYD ($40 USD). Section 6 of the ADR Act also provides that costs and remuneration of a

mediator are to be borne by the parties in such proportions as agreed by them or shared equally upon failure to agree. It may be argued that this is in stark contrast

to the fees which attorneys-at-law, who are engaged in criminal litigation or conveyancing transactions, are likely to receive.

Reservations

However, despite the apparent benefits of mediation and mediation advocacy, and the potential for attorneys-at-law to serve in the capacity of mediators, concerns have been expressed by the

judiciary and other attorneys-at-law (in Guyana). The Honourable Madame Justice Priscilla Chandra-Hanif stated, “We would need [a] complete revision of [the] training of lawyers for them to be trained as problem solvers and remove the "battlefield" mentality in order for mediation to be more utilised and for a career as a mediator to be more viable”.

Some interviewees also intimated that mediation is still in a fledgling stage and is therefore not financially feasible at this juncture, as a full-time career. One Guyana Land Court judge (who adjudicates in that court, created by Guyana statute, upon matters involving issues affecting land) noted that, the ‘litigation’ mentality of lawyers is impeding mediation’s success as they view ‘settling’ as a sign of weakness.

However, one mediation advocate opined that the inability of clients to pay their legal fees is becoming an increasing practice. He expressed the view that the greater the number of matters that are settled, the more time that would be made available to attorneys-at-law for additional work to be done. This advocate suggested that despite the concerns expressed

above, mediation, in fact, may contribute to more economical time management by attorneys-at-law.

Conclusions

In summary, a growing change in the public’s view of mediation has facilitated the increase in the number of mediators within the Caribbean diaspora. However, there are still impediments,

such as the cost of training and the rate of remuneration, which may discourage attorneys-at-law from serving as full-time mediators and mediation advocates. Nevertheless, mediation is indeed capable of being a viable career in the future. This requires attorneys-at-law to view the idea of serving as mediators holistically, and the training programmes across the Caribbean must continue to develop.

We would need [a] complete

revision of [the] training of lawyers

for them to be trained as problem

solvers and remove the

"battlefield" mentality in order for

mediation to be more utilised and

for a career as a mediator to be

more viable.

DID YOU KNOW? MEDIATION HISTORYBy Vishal Kissoon

11PAGE 11

Mediation has proved itself as a vital tool in the modern world of resolving disputes. But, did you know that mediation also has a deep-rooted history around the world? This is a summary of some fun facts from the Mediation Ma ers website.

CHINA AND ASIA

The cultures of China and Asia have always promoted dispute resolu on through the teachings of compromise as opposed to coercion. Moreover, Confucius believed that the best way to resolve a dispute was through moral persuasion and agreement rather than force. Buddhist tradi ons have always encouraged compromise as a form of dispute resolu on. Importantly, both approaches iden fy that there is a natural harmony in human affairs that should not be disrupted but instead maintained. In Japan, historically the leader of the village was expected to help people resolve their disputes. This rich history of media on has now resulted in a rela ve absence of attorneys-at-law in Japan. It is evident in these countries that li ga on is an absolute last resort.

AFRICA

In African communi es, disputes were settled in an informal neighbourhood assembly called a “moot”. A respected member of the community would serve as a mediator to help par es resolve conflicts coopera vely.

FROM ISLAM TO CHRISTIAN CULTURES

In the Islamic culture, a strong aim is to preserve social harmony among its people. This is seen by the use of “quadis”, specialized go-betweens who attempt to reach an agreed upon solu on to a dispute. In the West during the Middle Ages, Chris an clergy were called upon to mediate disputes between families and even in

diploma c disputes. Even today Churches have been used as places of sanctuary and clergy o en acted as mediators between criminals and authori es. Historically, Quakers have a long history of prac cing both media on and arbitra on and so most of the early U.S. model of media on was based on the work of the Quakers.

CARIBBEAN

Here in the Caribbean, in Amerindian communi es, the tribal chief would preside over a matter and headmasters were also considered respectable persons in whom confidence could be reposed to settle matters. As a result of European coloniza on, slavery and indentureship, we are made up of races from all around the world. Within the collec ve mix of persons, they brought not only their culture and tradi ons but their disputes, as well as their means of settling them. This resulted in informal means of dispute resolu on which thrived in the post-slavery period. Chinese had their own methods for their internal disputes. Indians would use the Hindu priest as a form of mediator, the Muslims would have the head of the Mosque and Africans would have their religious elders. The issues/disputes ranged from family disputes to street-vending, to livestock and other community-related issues.

GOING BACK TO OUR ROOTS

As a result of our inherited Bri sh legal system, westerniza on and dependence on the courts to settle all disputes, our society has moved away from its dispute resolu on roots. Caribbean civiliza on from its incep on has always had some form of alterna ve dispute resolu on which has been indigenous to its different popula ons. It is part of our rich culture and history and it may be more needed now than ever.

References:Alternative Dispute Resolution Act 2010 No. 24 of 2010 Cap 7:05 (Guyana)Civil Procedure Rules 2016 (CPR) Part 26 (Guyana)Eastern Caribbean Supreme Court (ECSC) Civil Procedure Rules 2000Family Proceedings and Procedure Rules 2016 (Guyana)Improved Access to Justice in the Caribbean (IMPACT Justice Project) www.caribbeanimpact.orgMediation Act of Trinidad and Tobago No 8 of 2004, Chap 5;32www.s group.com/trinidad-tobago/www.s group.com/alternative-dispute-resolution/

Reference: www.media onmatterssd.com/media onmatters/history.html

12PAGE 12

By Lisa-Anne Arthur

Traditionally, the English-speaking countries of the Caribbean have depended almost exclusively on the law courts to resolve civil disputes. However, over the last 15 to 20 years, alternative dispute resolution (ADR) processes such as arbitration, mediation, negotiation and conciliation have steadily made their way into the court systems of the region. Jamaica, Trinidad and Tobago, Barbados, Guyana and many of the Eastern Caribbean states have all passed legislation which promotes the adoption of ADR as a valid court-annexed, or stand-alone means of resolving civil and commercial disputes.

This paradigm shift, in the approach of regional justice systems, to embrace ADR may have been influenced, somewhat, by the new Civil Proceedings Rules. These Rules encourage parties to take all possible steps to try to resolve their dispute and avoid a trial. It is evident that ADR has added meaningful value

to the judicial system in the region, such that it is now being recognised as the wave of the future. In the face of an overburdened court system, which plagues the English-speaking Caribbean, ADR provides an alternative to litigation. ADR therefore lessens the economic and administrative load on the courts, particularly, as it relates to petty civil matters, which can be addressed by way of mediation. The resources of the courts, can therefore be freed up to deal with substantial legal issues.

The use of ADR processes has also had a positive impact on the economic development of countries in the region. For example, in Trinidad and Tobago, commercial arbitration is readily practiced to resolve domestic and international commercial disputes. Through relevant treaties and legislation, the Government of

Embracing ADR A perspective on

regional opportunities

13PAGE 13

In anticipation of this new direction

of the regional judicial systems, the

Dispute Resolution Foundation of

Jamaica annually provides ADR

training to law school graduates of

the Norman Manley Law School.

Here, at the Hugh Wooding Law

School, we are proud to say that we

also play our part in helping to train

future attorneys-at-law to become

mediation specialists. By offering

mediation workshops, a course in

Mediation Advocacy and an ADR

Specialist Clinic, we are part of the

wave of the future, laying the

groundwork for viable careers.

Trinidad and Tobago has given domestic courts the power to compel parties to honour arbitral decisions and awards. Such legal infrastructure plays a critical role in supporting the development of the island’s commercial sector and supports ADR. ADR is easier to access, less costly and less time-consuming than the traditional court system, making it an attractive option for industrial and commercial disputes. As such, by way of example, the Dispute Resolution Centre in Trinidad and Tobago is committed to providing arbitration and mediation services in response to both regional and domestic commercial disputes, aiding in the reduction of the business interruptions that are caused by such disputants.

The Dispute Resolution Foundation of Jamaica successfully provides ADR services to the general public to resolve matters such as community disputes, gang-related disputes, tenancy disputes, among many other issues.

Given the socio-economic benefits derived through the use of ADR processes, regional Governments should become more eager to adopt and promote ADR techniques to help manage social development and drive economic growth. This would also facilitate increased regional trade and movement of skills

envisioned by the CARICOM (Caribbean Community and Common Market) Single Market and Economy. The adoption and promotion of ADR processes on the parts of regional governments can become the catalyst for a plethora of career opportunities for mediators and mediation advocates throughout the region.

ADR

14PAGE 14

Preparation of the

A orney-at-lawmaking a (positive or negative) difference

to mediation outcomes?

Featured Interviewee - Mrs. Hazel Thompson-AhyeBy Codie Hinds, Aliyyah Khan, Asha Small and Shayne Williams

Well-known negotiation theorist, William Ury in, ‘Getting Past No: Negotiating your way from Confrontation to Cooperation’ (1993) stated, “Most negotiations are won or lost even before the talking begins, depending on the quality of preparation.” This article contrasts the differences between being well-prepared as opposed to beingunderprepared as an attorney-at-law and the impact on the outcome of a negotiation or mediation. The Table below summarises.

Well-prepared a orney-at-law VS Underprepared a orney-at-law

• Thinks like a businessman, a salesman, even a promoter. • Adjusts the client’s attitude from that of a litigant, to that of a decision maker. • Ensures that adequate information is obtained and the relevant research is undertaken

• Has only a general understanding of mediation.• Carries misperceptions about its purpose. • Fails to self-educate or educate the client about the mediation process.• Underestimates its value and usefulness. • Attends the mediation as an opportunity for easy billing. • Adopts an attitude of, “Let’s ‘wing it’ at mediation and see if the dispute resolves.”

• how the mediation will be conducted;• the roles of the various participants; • the client will be the one to decide what is acceptable to him/her; • the difference between litigation and mediation and the role of the mediator;• if the client will speak and the content of remarks; • the negotiation strategy, and the importance of keeping an open mind; and• the best alternatives to a negotiated agreement (“BATNA”), and the worst alternative to a negotiated agreement (“WATNA”).

• Makes no active preparation for mediation.• Results in time-wasting.• Requires the mediator to educate the client for the first time about mediation.• Allows the client to attend the mediation with the standard philosophical idea of a dispute (win-lose) and with the mentality of ‘being in a dispute’, resulting in a more difficult process.

• Tells the client that mediation is not a place to win or lose. • Tells the client mediation is about what the client is willing to accept (he/she decides).

• Lack of preparation may cause missed opportunities for joint gain.

Explains to the client beforehand:

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• Allocates time and goals appropriately: spends about ten percent of the time advocating viewpoints, and the remainder of the time asking questions, and exploring interests.

• Focuses unduly on adversarial advocacy. • Spends too much time advocating legal positions (to the disadvantage of both yourself and your client).

• Understands the mediation process.• Appreciates differences.• Listens to what the other side has said and practices paraphrasing, which gives you, the attorney with your client, the opportunity to state the other side’s statement as your own (in your own words). • Uses reframing which also assists in problem-solving, promotes building understanding and/or resolution.

• Adopts a competitive strategy during mediation by which you demean/insult opposing counsel and/or the opposing party.• Claims unreasonableness of the other side.• Acts dismissively of the need for mediation, expressing frustration. • Describes similar cases you have won and deliver a well-prepared trial opening statement and closing argument (not suited for mediation).

• Provides encouragement to the client and reinforces the client’s interests (which underlie positions) throughout the mediation process. • Ensures that the focus remains on mutual interests (common interests of both parties).

Some general guidelines to enhance your effectiveness in preparation and response at mediation: • Leave your litigious inclinations at the door. Aggressive or hostile behaviour will do your client a dis-service; it acts as an inhibitor rather than a promoter of a favourable outcome.• Conduct research on the process - gain familiarity with what the mediation session may entail.• Know the facts of your client’s case thoroughly; this includes knowing your client’s weaknesses and strengths. • Develop a negotiation strategy or a representation plan that will illuminate all relevant facts and issues that may impact your client’s interests. • Remember to give your client a chance to express his/her thoughts and feelings and know your role in the mediation process. • Mediation is confidential; this key feature can be used to disclose key facts to the mediator, or the other side, when you think it is appropriate, to facilitate a positive outcome.

• Presents an opening to the mediator as if the mediator were a judge, to persuade the mediator that your position is correct (showing total ignorance of the role of mediator as facilitator not decision-maker). • Overlooks the interests of the other party.• Loses sight that you seek to persuade the other party, and not the mediator.

Table: Differences between a well-prepared and underprepared attorney-at-law. Adapted with reference to Ury, 1993.

Being Well-prepared as an attorney-at-law – Enrol in Mediation Advocacy TrainingJust as in litigation, preparation is key to ensuring that you act in the best interest of your client. This is true whether your client has requested mediation or, has agreed to participate in mediation. The next important question addresses, how an attorney-at-law prepares for mediation, since it is different from preparation for litigation. Ideally, the best advice one can give is seize the opportunity offered by Mrs. Giselle Yearwood Welch in semester one of your second year at the Hugh Wooding Law School. For some of us, this is no longer an option as the elective course has been completed. This sufficiently equips an attorney-at-law with the knowledge required to prepare himself, as well as his client, to ensure his client’s best interests are well-represented.

Tips for the well-prepared attorney-at-law in a mediation session

References: Ury, William (1993), Getting Past No: Negotiating your way from Confrontation to Cooperation, New York: Bantam Books.

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Practical

InsightsInterview with

Mrs. Hazel Thompson-Ahye

Q. What is mediation to you?

A. A very useful and practical way of settling disputes between persons without the intervention of the Court. The ultimate decision comes out of the mediation session.

Q. Can you, from your experience, speak a bit about the importance of an attorney-at-law being well-prepared in a mediation?

A. It is important because the role of the attorney-at-law in a mediation is to safeguard his client's interests and to ensure his client is not taken advantage of. To that end, the attorney-at-law must be well-prepared, knowing his client's case and having a good understanding of the mediation process. Ultimately, the decision is the parties' and the attorney-at-law should ensure it is one that is in line with what his client wants.

Q. Is mediation merely a stepping stone to inevitable litigation or, is it an aim for disputing parties?

A. It should be an aim for disputing parties.

Q. Does mediation require less preparation than litigation?

A. Yes. As an attorney-at-law, mediation requires you to know the facts, your client's case, but [in my view] there is less research than in litigation.

Q. What are some of the benefits of a successful mediation?

A. There is an agreement, in the end, with which both parties are happy. The agreement is the parties' own decision, so they feel more involved in its implementation. The relationship of the parties is kept intact. Mediation wards off the ill-feeling which occurs after the outcome of a litigation.

Mrs. Hazel Thompson-Ahye is an attorney-at-law, Cer fied Mediator (Civil and Family), and the current Tutor of the course, “Ethics, Rights and Obliga ons of the Legal Profession,” at the Hugh Wooding Law School. She is the former Director of the Hugh Wooding Law School Legal Aid Clinic, Trinidad and Tobago and former Senior Tutor at the Eugene Dupuch Law School, Nassau, Bahamas. She has a passion for family law and children’s rights. She has been conduc ng training in children’s rights and juvenile jus ce, for over 20 years . She has presented extensively at conferences in

the Caribbean, La n America, Central and South America, Europe and South Africa. She is committed to implemen ng restora ve prac ces in Trinidad and Tobago and in the wider Caribbean.

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Insights and Insidea Mediation Centre in Trinidad and TobagoThe Dispute Resolution Centre, Westmoorings

"It was enlightening to see the rooms in which media on sessions are held and the level of thought that went into selec ng the wall colours, the type of sea ng, the ligh ng, the design of the tables and the layout of the rooms. This underscored the importance of crea ng a warm, comfortable and private space as a key element in facilita ng conflict resolu on through the media on process". Lisa Ann-Arthur

“What stood out to me was Ms Solomon’s knowledge of the process and her experience. I also loved the décor and it solidified the importance of se ng up the room for media on (from the sea ng arrangements, to temperature and colour scheme.” Sueanna Frederick

A group of 10 students from the Year 2 ADR Specialist Clinics, together with two Tutors, of the Hugh Wooding Law School, visited the Dispute Resolu on Centre, Westmoorings, on Wednesday 27 March, 2018. They were kindly hosted by the Execu ve Director, Ms. Elizabeth Solomon, for a fast-paced and intensive hour of insights.

Some key learnings and Insights from the visit:Physical matters count! Be alert to the table setting and seating arrangements – it can promote or prevent an adversarial environment. Can the table configuration be easily moved or is it fixed? Is your preference for a u-shaped, oblong, round or triangular table? Do you prefer the parties be seated closer to each other and you, as the mediator, or further apart? Do you want a larger conference room or a smaller room?Room presentation – can promote a good mediation or mediation deal/outcome and help discussions by promoting calm. Lack of a well-thought-out room presentation can trigger anxiety. Is the lighting overhead sufficiently bright or more ambient? Will the parties feel under the glare of each other or will they be in each other’s shadows? Consideration must be given to the design in terms of all aspects – from space usage and lighting elements to wall colours, seating texture and shade, artwork and natural elements (plants). This can promote a comfortable, working environment conducive to discussions which can foster collaboration and getting to a deal or bridging understanding.

Managing the parties and mingling - allot separate break-out rooms which gives each party a separate space for discussions with the mediator or with their lawyer or representative. Manage the timing of breaks and the interactions of parties. Food matters. Determine ahead of time, the range of needs to be met with suitable menus. Keep the parties focused and use food as an incentive (when parties are getting weary and the day is long) to push forward.Be prepared for online mediations - have your technology tested and ready with television or video screens and efficient internet and audiovisual capacity.Determine any special needs in advance – accessibility, special chairs, writing paper, markers, pens, flipchart, seating of each party and the mediator (who typically sits closest to the entrance/exit door).

The HWLS group with Ms Solomon (far right).

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Negotiating, Mediating

or LitigatingMore or Less in 30 years? Profile – Mr. Pa erson Cheltenham Q.C.

Barbadian attorney-at-law, Patterson Cheltenham Q.C., was called to the bar in 1978 and has been a Queen’s Counsel since May 2001. Now in his 40th year of prac ce, he s ll has a passion for the profession. In his first 10 years of prac ce, he did a combina on of criminal and civil work including criminal work at the Assizes. A er his tenth year, he devoted his prac ce to civil and commercial work. Mr. Cheltenham is an accredited Arbitrator and Mediator. He took me to share his views on the topic whether he would

do more li ga on, as opposed to nego a ons or media ons (30 years from now), drawing from his 40 years’ experience in law.

1. You have been called to the bar for almost forty years. What do you like most about having chosen this profession?Every day is something different and challenging; one never knows what one will encounter at the office on any given day. It is the uncertainty I find appealing and captivating. I have always enjoyed pouring over the texts and law reports and in more recent times, given the extensive resources one has electronically, one can extend that exercise to several foreign jurisdictions as one continues to search to find the answer to the problem at hand. The requirement for written advocacy, is a development for most of us trained in oral advocacy to reposition ourselves and embrace this new feature on the legal landscape. It is demanding but, it gives one a good sense of where one’s case is located. Somewhat differently, it tells you whether you have a viable case or whether you are wasting your time. I like that new feature of litigation.

2. Do you now see yourself choosing mediation over litigation?I have always done a lot of negotiations. These skills were self-taught and I believe, if I were properly trained at the onset, I would have been a better negotiator. I am not bad,

but if I were taught the rudiments of the negotiations, I would have definitely been better. I acquired those skills on the job which meant I committed horrendous errors and got a few things right. With the passage of time, I have improved on my negotiation skills but some formal training would have been extremely helpful.

3. Most a orneys-at-law are late on hopping on the band wagon of alternative dispute resolution and are now recognizing it, as probably the way forward, to assist with the backlog in the courts. You are an accredited mediator and arbitrator, why have you found it so important to be contemporary in the field of law and not merely a traditionalist?In the 1990s, I explored being qualified in arbitration. My enquiries pointed me to England for that qualification. Arbitration went off my radar for a substantial period of my professional life but within the last seven years I have refocused my gaze. I undertook the training programme offered by the Caribbean branch of the Chartered Institute of Arbitrators. I went through all stages from Associate to Member to Fellow. Once I became a fellow, I turned my focus to mediation which I felt was necessary if I wanted to be properly equipped in

By Lisa Somra

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alternative dispute resolution. I sit on the Executive Board of the Caribbean Branch and I have the responsibility for training. I thoroughly enjoy this role.

4. What advice do you have for a orneys-at-law who are still not convinced that ADR is an area in which they should be trained?Court systems are overwhelmed, undermanaged and suffer from an inadequacy of funds necessary for the development of courts. The courts cannot manage the significant load which they have and many of the matters, when analyzed, are quite amenable to either being resolved through mediation or arbitration. Barbados has a court-annexed mediation system launched in 2016, designed to assist in taking matters out of the court system. There have been early discussions focusing on the need to introduce a companion system in court assisted arbitration. The general movement is towards a more expansive role for ADR in the court system. Given this development, it would be an act of imprudence for an attorney-at-law to ignore or rather not to become familiar with the principles of practice in ADR.

5. What has been your experience using mediation as a mechanism to resolving disputes instead of litigation?Some lawyers still seem to think they are in a court setting and display no understanding of how the mediation system works and what is the proper role of counsel in these matters. There was one particular matter in which I was involved as counsel for the defendant. The mediation was well-handled by the mediator. The innocence of counsel for the claimant led to a complete collapse of what should have been a sensible compromise between the parties. The biggest obstacle to mediation is untrained attorneys-at-law. There is a need for introductory courses to sensitize attorneys-at-law to the rudiments, so that they can play a more productive role

as counsel in mediation. Attorneys-at-law need to re-fashion themselves to a non-aggressive role, contrary to what is done in litigation. Counsel need to recognize that there are some opportunities for their intervention; but for the most part it is the client’s matter and the client is the decision maker.

6. How do you sell mediation to a client as a viable alternative which is possibly just as efficient as the litigation process? You can explain carefully to the client that the mediation process is new to our system and one of its greatest advantages is that it can short circuit the legal matter by giving the client a chance to be heard and to articulate grievances before a trained and accredited mediator. The mediation process requires the mediator to listen carefully and appear balanced and fair, while pointing the parties towards a resolution to the matter. One should always emphasize to the client that it is quite possible in a mediation to bring a protracted matter to conclusion rather than await the uncertainty of protracted litigation. Most Barbadians are cognizant that the court system malfunctions and that delay is the order of business. It is incumbent on counsel to sell the mediation option to clients as a faster and more satisfying manner of resolving the dispute. In the area of divorce and commercial matters, that can be a very powerful selling point.

7. Would you recommend an automatic mediation referral to get rid of the backlog, especially for ma ers that have a small fiscal value?There are some matters that are completely out of the zone for mediation. Hence, I would not recommend automatic mediation referral. Forgetting those matters which do not fall within the purview of the mediator, certainly I would move quickly to mediation of all other matters. Attorneys-at-law must be given a fair chance to have the matter

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resolved. I do not want to marginalize the attorney-at-law who must be given the chance to have the matter resolved using his skills [negotiation]. If there is failure, then resorting to mediation would be appropriate.

8. How do you see ADR fi ng into the area of law for the future? I would like to see a further acceleration of ADR. This requires the training of both the judiciary and attorneys-at-law. The business community and clients generally must be sensitized to the overall value of ADR, compared with the well-known defects of the current legal system.

9. What feedback have you got from clients who chose mediation as a mechanism for dispute resolution?The feedback was positive and the clients were astonished at how attorneys-at-law, at times, can derail the process. Clients with little resistance, bought into the role of the mediator and the goal of mediation.

10.What advice regarding ADR do you have for a orneys-at-law about to embark into the legal profession?Embrace it! It will be the future. There is no turning back once one has committed him or herself to it. The court system is falling apart and there is no resolution in the near future. ADR will offer itself as a realistic and viable option. I would certainly encourage all young attorneys-at-law to acquire requisite training and skills to become effective ADR practitioners. “It is the future that steers you and it has arrived.”

11.What are your final words of wisdom, having been exposed to both litigation and mediation in your forty-year career in the legal profession?Litigation was a sport for some attorneys-at-law at the expense of their clients. Some clients by virtue of their behavior do insist that you participate in the sport because they must have their “day” in court. I advise clients to avoid their day in court and to have a day allocated to the resolution of their matter. More attorneys-at-law need to be exposed to training in ADR so that they can more effectively advise their clients of its merits. Hopefully, if we achieve having a court-annexed arbitration system, there will be enough scope for attorneys-at-law to simultaneously earn a living and bring early resolution to their clients’ matters. Much work needs to be done and until the requisite training is effected, there is much that will remain undone.

12.Some posit that ADR provides a simpler, quicker and more proportionate system. Have you found this to be the case?Yes, I refer to the answers of some of the earlier questions.

Litigating

Negotiating

Mediating

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BACK ROW: Gregg Rampersadsingh, Mrs. Giselle Yearwood Welch, Renelle Maharaj, Jacqueline Belgrave, Vishal Kissoon

FRONT ROW: Victoria White, Dayna Taylor-Lavine, Lisa-Ann Arthur

LEFT TO RIGHT: Aliyyah Khan, Mariah Celestine, Mrs Giselle Yearwood Welch, Kaycia Ellis, Codie Hinds, Sueanna Frederick, Glendon Greenidge, Lisa Somra, Monic Lennard, Kemar White, Jayanti Teeluckdharry

MEDIATION IN MOTIONADR SPECIALIST CLINIC 2017/2018

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When I was told of the topic, “If it were 30 years from now, whether you would prefer more mediations or more trials?” and subsequently chose to do it, I ques oned my ability to adequately and accurately reflect on this. My only experience with media ons spans from the undergraduate law degree programme, where I did Alterna ve Dispute Resolu on as an elec ve course and, also, from any little conflicts that I needed to resolve among my peers and close friends. However, how could I, a law school student with no experience in conduc ng either trials or media ons be able to state what her preference would be 30 years from now? I decided to take advantage of the opportunity offered by Mrs. Yearwood-Welch to interview a cer fied mediator who had experience in media ons. I chose

to interview Jus ce Vasheist V. Kokaram, a Judge of the Supreme Court of Trinidad and Tobago who was appointed on 20th April 2009. He is also the former Chairman of the Media on Board of Trinidad and Tobago (2010-2017), who has served as a part- me mediator and is currently a Judicial Settlement Conference Officer.

Achieving a More Peaceful Society through mediationFeatured IntervieweeJustice Vasheist Kokaram

By Jayanti Teeluckdharry

What Mediation Training can offer – empathy and more

In the interview, Justice Kokaram emphasized the importance of attorneys-at-law to a peaceful society and he advised that trials may not be the best process to achieve such an end.

He stated,

“Mediation training for lawyers is important because they become a little more empathetic and sympathetic to human conditioning and, as lawyers, we are champions for better human conditioning. We are warriors for better human rights. We fight for the oppressed so that they could have a better life. So, as lawyers, we are trying to obtain a better standard of living for people. We are trying to obtain protection for their dignity which is the protection of their rights. The ultimate goal is that you promote peace, you promote the end of disputes, you promote the end of despair and

you promote the end of hopelessness. When parties come to us as lawyers, they are already in a hopeless situation over which they have no control or, they believe they have no control and they need to regain control over their lives. Procedurally and substantively, it [a trial] is introducing that person who is already broken into a process which further breaks them. Is that helping them? That person is already broken, to put them in that process, you have not achieved a better human condition. You may have resolved one aspect of the dispute but you still leave the person in a despair. So, is it good for the client?”

Promoting civilised warfare or peace

Justice Kokaram also highlighted the problems with trials and its lack of focus on promoting peace between parties.

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As a trial stands now,

it only perpetuates

civilised warfare.

In his words,

“As a trial stands now, it only perpetuates civilised warfare. What it does is that it says: you bring your best army and let us fight it out in Court. As lawyers , your priority is to perceive yourselves as a gatekeeper of justice, as someone to protect, as someone to promote peace because that is what the civil system is supposed to do. The civil system is a civil resolution of a dispute. The Court is there to resolve a dispute. The problem is the approach in that system (trials) is positional, adversarial, factious, unhealthy and lacks focus on the real human condition. You could talk about the rights of land and property but what about dignity, a person’s sense of worth or, their sense of belonging to their community. Mediation opens up all those social issues that are not available in that civil process (trials).”

A further area of emphasis for Justice Kokaram is the difference between mediation and trials and how mediation helps to meet the social needs of the parties who voluntarily choose mediation.

He opined,

“In mediation, parties are sharing different experiences and realizing that there are different perspectives in the dispute. They further realize that even though they have

different prospective perspectives, they have a common interest. Accordingly, they realize they share their different prospective perspectives and work something out, so that it would be a better future for the both of them. In the process of mediation, there is alot of empathy. There is a lot of therapy (meaning a lot of venting) and people express themselves, which they are unable to do in a trial system. There is also a lot of problem solving. I have seen a lot of mediations resolved by people just being humans. For instance, by just apologizing to one another.”

Justice Kokaram also referenced the case of Shanique Myrie v Barbados [2013] CCJ 3 (OJ) and acknowledged that while an important point of law required articulation, he stressed that the issue could have been resolved by mediation. He said,

“What was the potential for Ms. Myrie and the customs officers to sit down and talk about these things. What would have happened if the customs officer were wrong or, even if they were not wrong, [were able] to apologize. What could have come out of that is that there would have been a difference in the way custom officers treat with women or, visitors on the whole. Customs relations training could have been implemented in Barbados.”

Gatekeepers for Justice – intertwined with social needs

From his explanations, Justice Kokaram was able to provide meaningful insights on just how impactful mediation can be on the parties who choose to do it and society on the whole. He was able to underline the main issues with trials and its inability to meet the social needs of disputants. As Justice Kokaram underscored, as attorneys-at-law in training, we are the “gatekeepers of justice” and justice cannot be achieved in a system that does not recognize the social rights which lie underneath the dispute that is presented in our Courts.

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Justice Kokaram stated,

“In law you will get a remedy but the dispute has not been resolved. How many times has someone lost a Court case and walked out of the Hall of Justice and said ‘there is no justice’. This just does not make sense to me. Therefore, what does make sense is that their idea of justice is not being delivered to them in that system (trial system) because that system cannot recognize those social rights which lie underneath the dispute that is presented in Court. Sometimes, a party’s issue may simply be that they want to be heard which is severely hindered by the rules of the Court, as parties are restricted in what they can say, as this may be deemed hearsay or irrelevant and subsequently be struck out. However, in a mediation, parties are free to express themselves and be heard. Both the confidentiality and informal nature of mediation gives the parties the opportunity to deal with underlying issues such as the emotional issues of a case. As a result, parties may sometimes seek no more than an emotional result, an apology perhaps, or, an opportunity to vent anger over a situation which they perceive as unfair”.

My choice – 30 years from now

I have become more aware now that as attorneys-at-law in training, our prime duty to our clients is to seek their best interests. However, if at the conclusion of a trial, there is the possibility that the core issues of the client are not being resolved, but merely one aspect of their dispute, we must consider how are the interests of the client being met? Is justice being achieved if we do

not address a client’s social needs? If these are not met, are we actually preserving harmony in society or promoting a culture of hate and animosity among persons? Accordingly, as Justice Kokaram advocated and, I now recognise, we need to more readily adopt an approach which will help to promote peace and help society to move forward. A system which empowers the parties to make the decisions themselves while understanding each other’s perceptions. Mediation can assist to achieve this. Therefore, if it were 30 years from now, I would prefer to do more mediations (where appropriate) than trials, as mediation offers the benefit of helping to achieve justice, in addition to addressing the social needs of the parties.

References:Shanique Myrie v Barbados [2013] CCJ 3 (OJ)83 WIR 104

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Mr. Shane Parris, Barbados na onal and attorney-at-law, is a 2017 graduate of the Hugh Wooding Law School who par cipated in the elec ve courses Media on Advocacy and the Alterna ve Dispute Resolu on Clinic, during his me at the Law School. I had the pleasure of conduc ng an interview with Mr. Parris, on the following topic: “If your career as an a orney-at-law spanned for 30 years from today, would you do more trials or more negotiations?”

The New LawyerA view on more trials versus negotiationsFeatured IntervieweeMr. Shane Parris, A orney-at-Law

By Kemar White

How were you first exposed to alternative dispute resolution (hereinafter referred to as “ADR”)?

Mr. Parris: I was first exposed to ADR during my first year at the Hugh Wooding Law School.

Do you think that there will be more trials or negotiations in the future, in light of the economic challenges experienced in Barbados and the backlog of cases in the courts?

Mr. Parris: I think that the economic challenges will mean less court cases in general, as people will be unable to afford the legal fees. Economic challenges and the backlog will not lead to more negotiations, unless the general public is aware that negotiation, and ADR in general, is an option.

To put it simply, the public must be educated on the benefits of ADR. More negotiations will follow regardless of the country’s economic situation.

What are the benefits of conducting negotiations through the process of ADR as opposed to having a matter heard at trial?

Mr. Parris: Let’s see if I can remember…… benefits include: it’s faster, less expensive in the long run and you (the disputant party) can figure out a creative solution to your problem. I remember a class scenario from last year involving a scientist who was fired. We (as attorneys-at-law with the parties) devised many solutions but if that matter went to court, she [the scientist] would simply have received damages or been rehired.

What are the shortfalls/weaknesses of ADR in comparison to litigation?

Mr. Parris: It may be more expensive up front [shared costs of the mediator and separate legal representation fees], but because it’s shorter [in the time spent to dispose of the matter], it ends up being less expensive than court. I guess that really is not a weakness. Moving on…… ADR is not appropriate for every situation. It is dependent on the parties involved; if one party doesn’t want to negotiate in good faith, then it is a waste of everyone’s time.

What are some of the challenges in having attorneys-at-law conduct negotiations on behalf of clients, through ADR, when they are primarily experienced in resolving disputes at trial?

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Mr. Parris: Well, if those attorneys-at-law have not been exposed to ADR before, they might come to the negotiation table with the same mindset they take into the court room- an adversarial mindset. This mind-set is not appropriate for a negotiation. They might also think it to be a waste of time and then not devote enough time or energy to it; solely viewing it as a temporary distraction until they can return to the court room.

Do you think that the use of negotiations through ADR will reduce the backlog of cases featured in Barbadian courts?

Mr. Parris: Yes.

Will the use of ADR through negotiations eliminate the need for clients to have a matter heard at trial?

Mr. Parris: In some cases yes; in other cases no, because ADR is not appropriate in all matters.

What role do you think that newly admitted attorneys-at-law have to play in conducting negotiations and having a matter heard at trial?

Mr. Parris: I think it is our role to educate our clients on the mediation process and its benefits. It is also our role to educate the older generation who may be unaware of ADR and how it works.

What do you think is the future of ADR in Barbados?

Mr. Parris: I don’t have a crystal ball, but if I had to guess, I would say the future of ADR is bright.

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Forecasting – to 2048: Properly equipped for mediationBy Dayna Taylor-Lavine

I wanted to be an attorney-at-law for as long as I can remember. I never had any alternative plans for a career. Until July 2017, I was almost sure that I wanted to practise solely in the area of international law. I was convinced that I was born to practise international law from my days at the University of the West Indies (UWI), Cavehill Campus, Barbados. However, as we all know, change is the only constant in life. Consequently, by the end of my in-service training in August 2017, at the Office of the Director of Public Prosecutions (Barbados), I decided that criminal law was made for me.

As one would appreciate, these are two vastly different areas of law and whereas, international law allows for mediation, in criminal law the idea of mediation or negotiation is less well-known. Most of the time, the main purpose and aim of criminal law is to punish the offender. However, because the

timeline stipulated for this article is 30 years from the year 2018 (2048), I would expect a significant increase in attorneys-at-law who are more properly educated in mediation, in the Caribbean region. This acceleration will occur in no small part due to the various courses in mediation which are offered at the Hugh Wooding Law School. Additionally, developments in technology now provide for active online distance learning and training. These opportunities will result in more attorneys-at-law in the Caribbean with a deeper appreciation and understanding for the mediation process and other forms of alternative dispute resolution (ADR), such as negotiation. Resultantly, by the year 2048, there will be more negotiations between parties and the increased use of civil mediation, together with the implementation of mediation in the criminal justice system, as an option in certain cases.

Introduction

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Negotiation and Mediation

Negotiation is generally not a new concept. For decades, businessmen and women have used negotiation as a method and a tool to come to mutually acceptable solutions when there is some disparity in what two people may need or desire. Mediation is no different, as one can also argue that this process is not new. Mediation, usually involves two or more parties coming together to resolve a dispute, with the assistance of an impartial third party, whose job is to assist parties in coming to a solution (that the parties determine). I am sure that during our younger years, we have all experienced situations where our parents, some family member or teacher had to play a mediator-like role, so that issues could be quickly and easily resolved between siblings, cousins or even friends. When it is viewed in this sense, one can see how mediation and negotiation are not foreign concepts in life generally. They are however ‘new’ and often still ‘foreign’ concepts as a solution or tool to be utilised for the resolution of legal disputes (especially, still evolving in the Caribbean region).

I have witnessed the ill effects of their ‘newness’ or the ‘foreign’ dimension of these solutions, on numerous occasions, where very simple matters which could have been quickly resolved by mediation or negotiation go through the legal process. Very often this has resulted in an outcome which was vastly unfavourable to at least one party. I believe that litigation is often used as a first resort, because it is human nature for persons to get very emotional when some wrong is done against them and make hasty decisions to try to “get back” at the offender or, “to teach them a lesson” or “to make them pay”. Also, the lack of knowledge and education about how the mediation process works contributes to the default litigious modus operandi of the parties to a dispute and their attorneys-at-law.

I have seen parties previously unable to solve an issue due to the emotional attachment to the situation, which inhibits critical thinking, come

to a speedy solution using mediation. I have also seen attorneys-at-law who do not wish to take off their ‘litigator hat’, when dealing with mediation. I believe that often, this approach occurs because of a lack of education and understanding about the role of an attorney-at-law in the mediation process. On the other hand, the disputants look to their attorneys-at-law for advice about the proper legal action to be taken. Unfortunately, because of the lack of education about the mediation process (which could result in an attorney-at-law having a lack of faith in the process), mediation is often overlooked as the first option to solve any legal matter. However, one cannot deny that there are certain types of legal issues which may be unsuitable for mediation or negotiation.

Appropriateness of process – Mediation or litigation

In some instances, legal matters are better suited for litigation. For example, initially there is no place in mediation for a murderer or a rapist as there is nothing to be resolved between the parties. I myself have never seen mediation used in criminal proceedings. However, the use of mediation occurs in criminal matters, after the sentencing of the offender, in other countries such as the United States of America. Although, on the surface, it may seem as if there is no place for mediation in the criminal system (neither pre-sentencing nor post-sentencing), this has proven useful in other parts of the world.

They are however ‘new’ and o en still

‘foreign’ concepts as

a solution or tool to be

utilised for the resolution

of legal disputes

(especially, still evolving

in the Caribbean region).

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The article by Simms (2007), ‘Criminal Mediation is the BASF of the Criminal Justice System: Not Replacing Traditional Criminal Adjudication, Just Making it Better’ explores how mediation can be used as a tool to improve the criminal justice system. For example, if there is a minor crime, such as the theft of a small amount of money, it may be best for the parties to choose mediation. This way the parties can sit with an impartial third party and decide that restitution may be the best solution. This decision would be made faster and at a lesser cost than if one had to wait for the matter to be heard before a court. Such court process would entail going through numerous adjournments and the payment of legal fees, and the judge would ultimately come to a decision six or seven years later.

The mediation process can also lessen or eradicate the emotional effect on parties, as one may well be aware that the everyday man never likes the idea of a court setting which can have a negative emotional effect on both parties. Further, mediation can be used to help assist in reducing the sentencing of offenders. It seems far-fetched and difficult to do. However, by way of example, Simms (2007) provides an illustration where the families of two murder victims met with the offender to create an agreement, through mediation, which the court used as a recommendation to reduce the offender’s sentencing. I can say that I can see myself making efforts to have mediation implemented into the criminal justice system in this way.

Looking into the crystal ball to 2048

Therefore, I urge you to look forward to 2048, where I see attorneys-at-law and litigants alike, more educated about the options of mediation and negotiation in legal matters. I see more use of mediation in civil matters and more countries throughout the Caribbean building mediation centres away from the court setting, to facilitate the proper functioning of the mediation process. Thirty years from now, I see people being more aware of the benefits and need for having

mediation centres. Benefits such as having an environment specially created and tailored to promote resolution between parties, with the use of calming colours painted on the walls, round tables that promote a sense of unity and the use of paintings which all positively assist in the promotion of an amicable solution being reached between the parties to mediation.

Thirty years from now, I see mediation as an option in the criminal justice system especially for first-time minor offenders. These offenders could meet with victims and negotiate or use mediation to explore more viable and realistic options, without the inclusion of litigation. Instead of having to pay expensive legal fees for an ongoing trial and having to deal with delays and continuous adjournments, I see parties coming to quick decisions on how to handle minor criminal matters. I ultimately see mediation and negotiation being added as tools to make the entire justice system better. Attorneys-at-law will now have at the forefront of their minds that, in order to effectively carry out their ethical duty, to properly represent their client, litigation is not the sole answer. Rather, attorneys-at-law will realise that they must firstly, seriously explore alternative methods, such as negotiation or mediation, as an option and be well- trained in the execution of both processes.

We live in a society which is always changing. As stated at the outset, change is the only constant in life. Because of this premise, and due to the high possibility of attorneys-at-law and parties alike becoming more educated about mediation, I believe, and it is my hope that, as an attorney-at-law in 2048, I will be participating in more mediation and negotiations than trials.

References: Simms, Larysa, 2007, ‘Criminal Mediation is the BASF of the Criminal Justice System: Not Replacing Traditional Criminal Adjudication, Just Making It Be er’. Ohio State Journal on Dispute Resolution Vol 22: 3 pp. 797-838

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Justice and the Lawthe end and the means?By Gregg Rampersadsingh

ADR at a Glance

The Honourable Mr. Justice V. Kokaram, Supreme Court Judge of Trinidad and Tobago in Shamie Budhu et al v National Agricultural Marketing and Development Corporation, High Court Action No 01518 of 2010 at page 2 stated,

“ I must comment at the outset that a settlement of legal disputes of parties without resort to a trial is encouraged by the Court. Alternative Dispute Resolution (ADR) is a manifestation of the overriding objective of the CPR. It is the centrepiece of the CPR in articulating the promise of an expedited and just resolution of a legal dispute in the new civil litigation landscape.”

The learned judge recognized the revolutionary nature of alternative dispute resolution (ADR), in the new civil litigation landscape. ADR was unheard of 30 years ago, in a landscape built on rigid, arena-styled litigation. The term ‘lawyer’ was almost synonymous with ‘suit’ and the job was characterized as civilized warfare.

As at 2018, ADR has built quite a track record. As Justice Kokaram stated, parties can pursue

an expedited and just resolution. This is often at a significantly lower cost than litigation. Overall, negotiation and mediation have given parties the power to trade the adversarial courtroom environment for a more informal, amicable setting.

ADR as a first resort?

Woolf (1997) stated, “My approach to civil justice is that disputes should, wherever possible, be resolved without litigation.”. Woolf ’s approach is both pragmatic and forward-thinking. It leads one to wonder why so many ‘settlement-friendly’ cases clog the court system each year? Who really benefits from the rapid fire filing of Claim Forms each day? Could there be another way?

If one were to venture outside the conservative arena of litigation, there is indeed the option to negotiate or mediate. Parties, upon mutual agreement can sit face-to-face, or in the presence of a neutral professional, and discuss the problem. They can identify their interests and impediments to their goals… and seek the closest option to a win-win settlement. This is the other way!

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ADR is becoming more prominent in the Caribbean region, offering quick, more affordable, binding decisions for disputants. At the same time attorneys-at-law are offered employment and an opportunity to practise their skills, while developing and enhancing new skills.

To ADR or to Trial? Therein Lies the Question…

In my legal career, over the next 30 years, I would choose more negotiations and mediations (within the ADR fora) than litigation. The ADR arena is highly specialized and compelling. It allows people to explore their needs and motivations, empowering them to rationalize and reason for themselves. I am highly interested in practicing ADR for corporate, land and family matters. I believe that if the demand for ADR increases, the court system can be unclogged of many land and family matters.

As time goes by, the research, methodologies and precedents will build and develop, transforming the legal landscape. I believe we can and should remain optimistic that over 30 years from today, I, and any other ADR-aspiring attorney-at-law, can have a successful future in ADR.

An Alternative View Looking Forward

As an alternative view, perhaps the underlying question of ‘Litigation or Negotiation?’ can be answered differently than explored above. Menkel-Meadow (2000) discusses a curriculum that creates a problem-solving and peace-making capacity in all attorneys-at-law. The training is designed to enhance and extend the typical attorney-at-law’s skill set to include ‘counselling, interviewing, case valuation, negotiation planning, meeting facilitation, mediation, decision making, and leadership’. Menkel-Meadow (2000), observed that many major business schools now require all students to take negotiation courses. This is a remarkable time for legal and non-legal careers. Professionals in all fields are seeing the benefits of practising negotiation. Why shouldn’t attorneys-at-law then adapt a more synchronized fusion with litigation and ADR?

The legal landscape is rapidly evolving and changing in the Caribbean region. Certainly, the distinct line between lawyer and mediator is becoming more and more blurred, ushering in a new age for lawyers, with new skills-sets and a world of opportunities.

References:High Court Action CV 2010-01518 Shamie Budhu, Prakash Harrilal, Prem Singh, Nalef Ramjit versus National Agricultural Marketing and Development Corporation (Trinidad and Tobago), Justice V Kokaram, at page 2 Menkel-Meadow, Carrie, 2000. ‘When Winning Isn’t Everything: The Lawyer As Problem Solver’ 28 Hofstra L.Rev. 905-924 Woolf, Harry, 1997. Symposium: Civil Procedure Reform in Comparative Context, The American Journal of Comparative Law Vol.45, pp.709-736

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Fiadjoe (2004) states, “ADR is a group of processes where disputes are resolved outside of formal litigation procedures.” These processes include mediation, negotiation and arbitration. For this article, I will focus on mediation.

Scope of mediation – Mediation defined

Mediation is a facilitative process in which disputing parties engage the assistance of an impartial third party, the mediator, to help them try to arrive at an agreed resolution of their dispute (Browne and Marriott, 2011). Accordingly, the mediator has a duty to assist the parties in examining their mutual interests and preserving the relationship between the parties. The mediator does not have the power to make any binding decisions for the parties. Instead, he uses techniques and skills to help the parties solve their problem by agreeing on a solution (Fiadjoe, 2004).

Benefits of mediation

One of the benefits of mediation is the fact that the mediator cannot make decisions for the parties. The lack of decision-making authority on the part of the mediator allows the parties to be in control of their decision and allows the

parties to make the best decision for themselves. As such, this is beneficial to the parties as it allows them to come to a solution that maximizes their interests (Fiadjoe,2004) and is a solution with which they are both happy. In litigation, the parties are forced to accept a decision of a court which may not be as beneficial to either party. Additionally, by allowing the parties to make their own decisions in mediation, they may feel empowered and this may be satisfying for both parties.

Mediation may be a viable alternative where the parties to the dispute do not have equal bargaining power. A primary value of mediation is its ability to preserve and repair relationships between the parties (Lawrence, 1999,2000). Additionally, in cases where the parties are strong-willed and assertive, negotiation may lead to arguments if both parties seem inflexible. Mediation is beneficial, in this respect, as a qualified mediator can help to facilitate communication between the parties. This allows them to express their views and feelings respectfully.

Another advantage of mediation is that it allows a third party, the mediator, to use his/her skills to recognize underlying issues, which

The BenefitsMediation

is the way

to go!By Mariah Celestine

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have not been raised by the parties. It is important for a mediator to observe non-verbal communication between the parties and this may reveal issues that should be addressed during the mediation process. Mediation is also beneficial since it is more cost-effective and time-efficient than litigation. Additionally, it offers confidentiality, which may prevent the breakdown of relationships between the parties.

Effective communication skills – of the mediatorFocus on verbal and body language

As a mediator, certain skills are necessary. These are active listening, observing, non-verbal communication and effective questioning. Active listening enables a mediator to hear important information and learn a great deal about the other party. This consists of paraphrasing, validating, reframing, empathizing and summarizing. Important non–verbal communication includes the following: eye contact, nodding your head, facial expressions and posture (Brown and Marriott, 2011). By using the right non-verbal communication signs, parties would feel that they are being heard which is crucial to come to an agreement. Effective questioning lets the listener know that they have been heard. It is a powerful way of learning and finding out information. It could redirect the parties from inflammatory emotional responses and helps to avoid flammable situations. It can calm persons by going into detailed descriptions about their grievances.

Focus on the future and the positivesShifting from the past and negatives

Mediation is focused on allowing the parties to move on from the past and to focus on the future. It turns negatives into positives and it helps to build and foster relationships. It is not about a winning or losing side or breaking or pulling someone down to win. It is not about putting one party against other. It seeks to

avoid further deterioration of relationships. Being a mediator helps to improve your listening skills, helps you to show empathy for the other, makes you become more open-minded, impartial and non-judgmental. It also makes you become more trustworthy so that you can build rapport and helps you to become a critical thinker.

My view – Thirty Years Forward in Trinidad and Tobago

I believe that there will be more mediations in 30 years from today, because the benefits outweigh the challenges (from the outline shown). The court system of Trinidad and Tobago is overloaded. Mediation will assist in clearing that backlog, as well as allowing individual cases to be dealt with in a time-effective manner. This anticipated result is evident from the newspaper article published on Wednesday, November 13, 2013 by the Trinidad and Tobago Guardian titled, “Mediation the way to go” (http://www.guardian.co.tt/news/2013-11-13/mediation-way-go) which stated that during the “Judiciary’s court-annexed pilot project which occurred from 2010 to 2011, 60 commercial disputes were sent to mediation at different stages of trial and 60% percent of the cases were successfully mediated.”

Accordingly, if my career as an attorney-at-law spans 30 years from today, I will do more mediations as mediation seeks to bring a peace of mind to all parties, instead of conflict and war.

References:Brown and Marrio , 2011. ADR Principles and Practice, 3rd Edition, London: Sweet & Maxwell, pp. 154, 384. Fiadjoe, Albert, 2004. Alternative Dispute Resolution: A Developing World Perspective, 1st Edition, London: Cavendish Publishing Ltd. pp., 17, 58, 59.James K.L., Lawrence, 2000. Mediation Advocacy: Partnering with the Mediator, 15 Ohio St. J. on Disp. Resol. 425 1999-2000, p. 432.Newspaper article, Wednesday, November 13, 2013, the Trinidad and Tobago Guardian titled “Mediation the way to go” Available online at www.guardian.co. /news/2013-11-13/mediation-way-go

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Ms. Elizabeth Solomon is currently the Execu ve Director of the Dispute Resolu on Centre, Trinidad and Tobago. She is a cer fied mediator and a member of the Media on Board of Trinidad and Tobago. Ms. Solomon was recently appointed as the Trinidad and Tobago representa ve on the Commonwealth Network of Women Mediators. She also volunteers as the Execu ve Director of the Caribbean Centre for Human Rights and is a part- me Adjunct Lecturer in the Faculty of Law Interna onal Human Rights Clinic, University of the West Indies. She worked with the United Na ons (UN), spending almost two decades in conflict preven on and peace-building. In her capacity as a Deputy Coordinator of the Good Offices in Cyprus, she was a member of the UN media on team in the

nego a ons between the Greek and Turkish Cypriots.

In this conversa on with Ms. Solomon, she shares some of her perspec ves on the strategies and techniques that can assist in making a media on successful. She takes us through an experience from her interna onal background with the UN.

Mediation Success Stories Strategies from the frontline

where peace and conflict intertwineConversation with Elizabeth Solomon,

Executive Director of the Dispute Resolution Centre

By Jacqueline Belgrave

TYPE OF MEDIATION

Ms Solomon utilised a mediation experience drawn from an international mediation, where she was part of a team in the matter relating to Cyprus, between Greek Cypriots and Turkish Cypriots. This dispute involved political, financial, economic, property and psychological issues. Greek Cypriots identified with being a part of Europe and Turkish Cypriots declared their own state in the north, the  Turkish Republic of Northern Cyprus (which remains internationally unrecognised, except by Turkey).

PREPARATION

1. Background reading. An appreciation of the historical context was required to understand the psychological aspects of the issue. As such, it was necessary to do a significant amount of background reading in preparation, before addressing the current facts. This gave useful information on the

parties, together with looking at the facts of the matter at hand.

2. Room setup. The room was important. The matter was ongoing for years; however, the same room was utilised each time a meeting was held. This allowed the parties to know exactly where they were sitting at each meeting. In this case, they always sat opposite each other.

3. Representative speaker. In addition, they always knew who was going to speak. This enabled the parties to never feel unprepared, which goes to the expectations and trust. Also, this ensured that there was a fair balance of power in the room which created a sense of equality. To assist with the feeling of equality, the flags of the two parties were used – the flags were the same size and flown at the same height.

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STRATEGIES

The strategies used were determined by the level of distrust between the parties. This mediation required confidence-building methods which allowed the parties to move to their interests as opposed to sticking to positions.

Joint coffee sessions were convened with both parties before the start of the day’s session. This was held in a separate room set aside specifically for that purpose, located next to the mediation room. This gave the parties the opportunity to have normal human interaction and generally, to feel comfortable with each other. This helped to reduce the tension before sitting at the table to start discussions.

Caucusing is another strategy that can be used. Caucusing helps to reduce tensions – parties can express their individual interests to the mediator which can be translated to the other side effectively.

The opening statement also helps to reduce tension – it clarifies several things by setting ground rules. For example, agreeing that no information leaves the table, and having an agreed media position (non-disclosure) allows the parties to feel more comfortable with information sharing.

Generally, there is no need to deviate from strategy because the process uses a methodology. Flexibility is needed, based on the

level of distrust between the parties, especially where there is a power imbalance. However, any actions utilised must avoid the perception of bias.

KEY SKILLS

Calm confidence in oneself as a mediator is required to manage the emotions of people and you must have the humanness to understand people. You must also be calm but firm to avoid manipulation.

Understanding the mediation process allows flexibility in the strategies. This comes with experience. The more mediations that are undertaken the more experienced a mediator will become at understanding the process and, allowing flexibility.

RESOLUTION – CRITICAL THINGS CONSIDERED

A resolution could look like nothing anticipated. For example, in the Cyprus issue the fact that the relations between the two sides are more peaceful and less violent is not a resolution. However, there are achievements over the years and generally, items to consider would include:

knowing when to start to focus on the interests and move the parties away from positions;

facilitating the parties to generate and to explore their options fully;

making the parties feel empowered – ensuring that they feel they have the power to resolve the matter; and

finding ways for the parties to save face so they can move way from positions to explore their interests. For example, where a media statement is made or where the parties have made promises to third parties - ways must be found to reach resolution without compromising their image.

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CHALLENGES – HOW ADDRESSED

Dealing with perceptions and breach of trust between the parties are challenges. This happens, especially, if positions are taken publicly. The positions become so entangled with the emotional definition, emotions then become attached to the position. Experience helps you deal with overcoming this challenge. However, dividing the matter into smaller issues and dealing with one issue at a time, gives small wins along the way. This builds the parties’ confidence in the process, and in themselves, that they can resolve the matter.

TECHNIQUE/S FOR SUCCESSFUL SETTLEMENTS

There is no one best technique but knowing when to tease out the parties’ interests is critical. Giving equal understanding to the emotional and financial interest is also important – balance both, so that the parties feel that issues are dealt with equally. Be aware that emotional aspects are in all matters

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ADVICE TO NEW MEDIATORS

Trust your instincts - experience builds confidence in the mediation process. The more meditations facilitated, the more confidence is built. Mediate at any opportunity even in informal situations and analyse your performance each time.

Thank you Ms. Solomon, for sharing these insigh ul views, which will serve us in good stead, as we go forward as aspiring mediators.

36Summary of Dispute Resolution Centre services

by Monic LennardServices include: Training and Coaching ,Media on and Arbitra on Services (local/interna onal), Dispute Resolu on System Design Clients include: Government ministries, Public Ins tu ons, Private Ins tu ons, Communi es and NGO’s Types of disputes administered: contract, family, insurance, industrial rela ons, energy and moreTypes of training include: ADR, conflict management, managing difficult workplace situa ons

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Gaining experienceMrs. Seecharan received her first training course in Alterna ve Dispute Resolu on (ADR) in 2000 with the Sitt Field Handy Group, a Canadian based company which offers dispute resolu on training and services world-wide. Eager to put her skills to prac ce, she began media ng staff disputes voluntarily and free of charge at her place of work. In 2013, the Chief Jus ce Of Trinidad and Tobago The Honourable Mr. Jus ce Ivor Archie, launched the Alterna ve Dispute Resolu on Pilot Project which incorporated two features – Court-Annexed Media on and Judicial Settlement Conferencing.

She applied to par cipate in the Court-Annexed Media on project and was successful, becoming a part of the first group of Media on Board-cer fied mediators who championed the use of media on in the judicial system of Trinidad and Tobago. There, in the Court-Annexed Media on project, she encountered a broad spectrum of civil disputes from family matters, to land law and commercial disputes and achieved an 85% settlement rate.

A Mediator Success Story Mrs. Natasha SeecharanBy Victoria WhiteMrs. Natasha Seecharan was admitted to practise law in Trinidad and Tobago in 1992. Over the years, she has garnered experience both in criminal prosecution and criminal defence, as well as public law. She is now the Head Legal Adviser at the Service Commissions Department of Trinidad and Tobago.

Now, Mrs. Seecharan holds ADR “dear to [her] heart” and believes that mediation can truly assist clients in ways that the litigation process cannot. She recalls a particular matter between a father and son grappling with a narrow legal issue. As a mediator, she recognized that there was tremendous pain between the two and a need to mend the relationship. Through her facilitation, the parties agreed to meet at a neutral venue where the father could meet his grandchildren whom he had not seen in years. She considered the moment that the son brought his children to meet their grandfather a mediation success, as it set the family on the path to being healed. It was a recognition that a ‘successful’ mediation could mean more than just ‘achieving settlement’ and that mediation was powerful because, by its nature, parties are permitted to address interpersonal grievances beyond the legal issue.

While acknowledging that all mediation skills have their specific utility at various stages of the process, Mrs. Seecharan thinks that a critical skill which has contributed to her success as a mediator is listening with genuine empathy. She also continues to read and practise to refine her mediation skills. She admits that, at the dawn of her mediation training, she viewed the skillset of the mediator within a ‘vacuum’, as a set of skills for a particular purpose. Her approach was changed by her encounter with Professor Michael Lang and reading his book focused on mastering the mediation process. Thereafter, she was able to see the value of her unique experiences, thoughts, creativity and intuition incorporated into her training to make her an effective mediator.

Today, her mediation training helps her to see legal disputes from a multitude of angles, while her legal training is an asset in sorting through data and fact-heavy mediations and identifying the issues and pathways to se lement.

Success – not just about ‘agreement’ Listening with empathy – a key skill

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Ms. Paula Maria Fortuné was admitted to prac se law in 1994 in Trinidad and Tobago, and has garnered wide ranging experience in the private and public sector, working in a family prac ce law firm, the Legal Aid and Advisory Authority and now as Legal Manager at the Water and Sewerage Authority. Her civil and corporate background have given her a bird’s eye-view of conflict situa ons and the merits of non-li gious modes for effec vely resolving disputes. She assisted as an Associate Tutor in the Alterna ve Dispute Resolu on Programme at the

Hugh Wooding Law School during the Academic Years 2014-15 and 2015-16.

7 Questions on MediationSharing PerspectivesWith Ms. Paula Maria Fortuné,

Head, Legal Services, Water and Sewerage Authority

By Vishal Kissoon

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When did you get started as a mediator and what were your motivations?

My first official training in mediation was a Basic Mediation Course in 2001 (40 hours). Prior to this, I was a practising as an attorney-at-law in the Family and Civil Courts. It was evident that an adversarial approach, particularly in family matters, before the court, was counterproductive to continued relationships between the parties. In highly contentious matters, the judges continued to plead with attorneys-at-law to ‘put their heads together’ to mitigate some of the angst and the bitterness, so that the real issues could be dealt with. 

One particular incident stands out between a mother and a young girl aged approximately 13 years, who was deemed ‘beyond control’. The mother  was represented and I was asked to approach the court to be heard amicus for the child. Thankfully, the attorney-at-law acting on behalf of the mother was prepared to discuss the matter with the parties present. Although what followed was not ‘mediation’ per se, the discussions were conducted in similar fashion without the mediator, but

with attorneys-at-law on both sides guiding the process. I was able to see the benefit of parties speaking directly to each other to arrive at resolution. This memory stands out as a learning experience and provides motivation for continuing in the environment.

How has mediation impacted your career?

Mediation and the principles that form the basis of mediation continue to be an integral part of my legal practice. The application of  giving the litigant a voice, an opportunity to be heard by the other side, listening, reframing,  diffusing the emotional dynamic and distilling the issues from any conflict are invaluable tools.

What advice would you give to someone who is considering becoming a mediator?

Prepare for life-changing insight.

What do you see for the future of mediation as a career with respect to Trinidad and Tobago?

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Created with The Teachers Corner.net Crossword Puzzle Generator

Mediation is an invaluable niche. Alternative Dispute Resolution training is necessary to successfully pursue a legal career. Mediation has already been flagged internationally as one of the best avenues for conflict resolution, for example in Canada and Australia. It is inevitable that Trinidad & Tobago follow suit.

What is the one thing about being a mediator that is your favourite?

It is that part of the mediation process when the parties realise that resolution is possible and begin to work towards a favourable outcome.

What is the one thing about being a mediator that you dislike?

Noticing the acrimony that persons carry around and their persistence in holding on to anger and resentment.

What have you learned about conflict resolution during your time as a mediator?

That given the opportunity, most persons will choose peace.

Answers to Crossword Puzzle – The Mediation Process

Horizontal6. Communicate - Parties to mediation are required to share information and ideas.8. Informal - The mediation process is unlike the formal court process.9. Perceptions - The way in which something is regarded, understood, or interpreted by a party.11. Collaborate - Parties are required to work jointly to resolve their conflict.12. Agreement - Harmony in opinion or feeling.13. Reframe - Change the way a party has presented a thought to maintain its fundamental meaning, but still support the effort towards resolution of the conflict.14. Openness - Frankness or lacking secrecy.

Vertical1. Probe - Explore a party’s voiced concerns in an effort to determine their underlying interests.2. Summarise - Give a brief statement of the main issues identified from the parties’ voiced concerns.3. Voluntary - Parties are free to discontinue the mediation process at will.4. Impartial - The mediator is a neutral third party.5. Win-win - Mutually beneficial.6. Confidential - Private or restricted information.7. Paraphrase - Express the meaning of a party’s voiced concerns using different words to achieve greater clarity.10. Interests - The reasons underlying a party’s positions.

Horizontal6. Parties to mediation are required to share information and ideas.8. The mediation process is unlike the formal court process.9. The way in which something is regarded, understood, or interpreted by a party.11. Parties are required to work jointly to resolve their conflict.12. Harmony in opinion or feeling. 13. Change the way a party has presented a thought to maintain its fundamental meaning, but still support the effort towards resolution of the conflict.14. Frankness or lacking secrecy

Vertical1. Explore a party’s voiced concerns in an effort to determine their underlying interests.2. Give a brief statement of the main issues identified from the parties’ voiced concerns.3. Parties are free to discontinue the mediation process at will.4. The mediator is a neutral third party.5. Mutually beneficial.6. Private or restricted information.7. Express the meaning of a party’s voiced concerns using different words to achieve greater clarity.10. The reasons underlying a party’s positions. 39PAGE 39

The Mediation ProcessComplete the crossword below

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In the next issue

With almost 24 years post-admission experience, as an attorney-at-law, from both the public and private sector (civil and commercial), Mrs. Giselle Yearwood Welch’s journey at the Hugh Wooding Law School commenced in 2010. She continues to be passionately focused on the growth of the Alternative Dispute Resolution Programme to allow the talent that lies within the students to shine through, as they discover a new conversational intelligence in the world of mediation. As a certified mediator and trainer (both in civil non-family matters) with the Mediation Board of Trinidad and Tobago, Mrs. Welch is intrigued by the area of employment and elder mediation and organizational conflict management systems. Aided by her recent MBA (Distinction) in Innovation, Leadership and Entrepreneurship, (awarded by the Anglia Ruskin University, UK,) she is determined to make a positive difference to the peacemaking landscape of the Caribbean region.

ADR Course DirectorMrs. Giselle Yearwood Welch

• Developing a Mediation Centre • Mediation Competitions, Conferences and Training• Continuing Legal Education - a spark or a flame?• Getting the acronyms right (use of terminology in ADR)• Standards for mediators• Considering conflict management systems and peer resolution

With almost 15 years post-admission experience, as an attorney-at-law, Mrs. Annika Fritz-Browne is committed to the pursuit of justice and finding the most efficient means possible to do so. As a recent post-graduant, with a diploma in mediation studies from the University of the West Indies, Mrs. Fritz-Browne is determined to make a difference in the lives of the clients that she serves as a Tutor at the Legal Aid Clinic, Hugh Wooding Law School (since 2013). She volunteered as a Co-Tutor for one of the two ADR Specialist Clinics, eager to share her insights and learnings from conflict experiences with the students. Mrs. Annika Fritz-Browne

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