Mediation must be mandatory in order to work

Nov 26, 2008 News

– Chichester

More than four years after the implementation of mediation in Guyana, it is yet to play a crucial role in helping to eliminate the backlog that exists in the court system.
Director of the Mediation Centre, Colin Chichester, has said that he anticipates that by now there would have been a greater response to mediation.
According to him, since mediation started in Guyana in October 2003, a total of 477 cases have been referred to mediation. He added that, so far, they have handled approximately 100 cases per year.
“Speaking from my perspective as coordinator of the programme, I anticipated that by now we would have had a larger amount of people coming to us for mediation…I expected it to be closer in terms of ratio, but it has not been so.”
According to Chichester, as of now, the ratio is 65:35, the former being the number of unsettled cases. This is not close enough, given the expectations of the mediation process when it started.
“Given the publicity we tried to engender, I thought that by now clients would come to us clamouring with their matters, but it’s not been happening. They have been coming, but not as much as I would have expected.”
Chichester said that looking at 477 cases over a four to five-year period, mediation has not played an integral role in reducing the backlog in the court system.
He also said that once mediation remains optional to the parties involved in a court matter, it is not going to work.
He said that acting Chancellor of the Judiciary, Justice Carl Singh, has been trying to get the rules changed over the last few years whereby mediation is compulsory; so once it is filed at the Registry, it comes to the Mediation Centre automatically.
“So there will be no option; when that happens, then it will increase.”
Chichester noted that that is how it is done in other jurisdictions.
He also said that, a few months ago, the Chancellor indicated to him that these new rules should be in place before the end of the year.
“They are now looking at suggestions from Bar Association; so if not by the end of the year, then early next year, and those rules will make it mandatory and it will make a difference. But once it remains optional, where lawyers can say, ‘No’ I don’t want to try mediation,’ it’s not going to work,” Chichester added.
Chichester opined that the main issue that they have with mediation is the lawyers.
“Some of the lawyers are not on board…they just don’t accept mediation as an integral part of the justice system.”
He said that there are some lawyers who still have not bought into the concept of mediation.
One good thing, he added, is all the training going on now. He said that the University of Guyana as well as the University of the West Indies have Alternative Dispute Resolution (ADR) programmes, where they train the new lawyers.
“The new lawyers coming out will come into the bar with an appreciation for mediation; so with that along with the new rules it should help, but for now there is some resistance by the more seasoned lawyers.”
Chichester pointed out that once the lawyers are on board it is going to improve, since there are cases where it is visible that the lawyers are just there because the judge told them to try mediation and they did not want to say no.
“They don’t contribute, they don’t support the process, and inevitably it doesn’t work.”
The mediation process started in October 2003 as a brainchild of then Chief Justice Carl Singh, with help from the Carter Center and USAID.
An ADR committee was commissioned; the post of mediator was restricted to lawyers only, who would have been practicing for at least seven years.
Mediation in Guyana started with 25 mediators, who were all lawyers.
However, over time, the scope was broadened and a wide cross-section of persons were trained as mediators.
Chichester said that there are currently 70 trained mediators, including lawyers, engineers, probation officers, HR consultants, sociologists, agriculturists, surveyors, medical doctors and others.
Mediators handle all civil matters, except divorce and custody. Chichester also said that division of property matters have mainly been referred to the Mediation Centre.
A matter has to be in the court system before it can be settled by mediation; and if it is not settled, it goes back into the court system.

(Nadia Guyadeen)

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