Business Page – Accompanying the Commercial Court

Sunday, May 21st, 2006

Introduction:

Business Page of March 26th, 2006 featured the proposal for the establishment of the commercial court, an initiative driven by USAID and the Inter-American Development Bank (IDB). It appears that the recommendation contained in a report on the judicial system prepared for the IDB a few years ago found favour not only with the US which has been financing Justice Improvement Projects across the region but also with acting Chancellor of the Judiciary Carl Singh who in a seminar on March 27, 2006 predicted that 'Mediation before trial could soon be a mandatory feature of the judiciary in the country'.

The publicity surrounding the seminar on 'Encouraging the use of Alternative Dispute Resolution (ADR) and Mediation in Guyana as a Court-Connected Measure' might have suggested to the casual observer that Guyana has finally entered the era of ADR. But that is far from reality. Long before ADR became a feature of the country's labour relations with the Chief Labour Officer acting as arbitrator in disputes between employers and their workers' representatives, immigrants from Africa and India had brought with them their own dispute resolution processes.

For Africans it was regarded as a mark of shame not to be able to resolve dispute as the Yoruba saying makes clear: 'The tongue and teeth often come into conflict. To quarrel and get reconciled is a mark of responsibility.' The Indians brought with them the Panchayat, a system of arbitration first used more the twenty-five hundred years ago and one that survived the eight hundred years of Muslim rule. And right here among our First Peoples, the Touchau or Captain would sit mainly with the senior men of the tribe and arbitrate in disputes among its members.

Promised consultations:

What is new about the initiative is that it is, as the Chancellor said, a 'court-connected measure'. Perhaps anticipating criticisms from a skeptical public about anything that is considered an imposition, Justice Singh explained that the mandatory mediation proposal would be subject to open and wide consultations with members of the practising bar before there is any attempt at implementation.

The intervention by former President Carter in the run-up to the 1992 elections was an example of mediation, one form of ADR as was the Herdmanston Accord, both of which many would consider have served Guyana well. Yet the government has not shown any great appetite for ADR, perhaps as a result of some decisions by arbitrators which the government considered adverse - such as the Arm-strong Arbitration Tribunal in 1998 - fuelling the impression that the ADR process is being driven by the judiciary rather than policy makers.

Slow start:

The ADR process which was launched in 2003 has had little success and has been largely judge-driven. Of about 302 cases dealt with up to the end of March 2005, 238 of them were judge-referred, while attorneys initiated the remainder. Forty-one cases have been successfully resolved, while 75 were referred back to the court for determination. Six were described as being partially resolved, while the remaining 180 cases were said to be still pending. In crude mathematical terms, the cases resolved represent 0.28% of the backlog at December 31, 2005, less than twenty per year since commencement or just one per mediator per year!

A cynic may choose to describe the initiative as a failure but it is probably more accurate to consider it part of the learning process. A number of reasons have been cited for the low success rate and it is submitted that unless these are addressed the advantages offered by ADR will not materialise. One attorney familiar with the process and who is on the Roster of Mediators advanced several reasons for the poor results, the principal ones being:

1. The stage at which mediation is introduced in any matter

Because of the emphasis on the backlog of cases which according to the Registrar of the Supreme Court numbered 14,316 at December 31, 2005, cases have languished in the system for as much as eight years. Parties therefore have developed their own expectations of a settlement, and seem unable to disabuse themselves of their earlier expectations.

2. The investment in the matter

Many of the parties would have already invested in attorney's fees and considerable time in the process. Even Ms. Sita Ramlal, Registrar of the Supreme Court and a strong advocate of ADR acknowledges that the average Guya-nese litigant wants his or her day in court.

3. Poor client education

Despite having been in operation for three years, the public and the parties to legal action are unaware or unconvinced of the value of ADR. One attorney indicated to me that one of his colleagues walked out of a mediation matter after his client berated him for being too conciliatory.

4. Poor planning

It appears that the initiative has been inadequately planned and executed. Close to three years after its launch there are still no formal rules, insufficient professional and public education, limited focus to court matters, poor marketing and total ambiguity about unresolved payment arrangements for mediators whose morale is already being affected. This has not been helped by concerns in the legal fraternity that while mediators are in a state of uncertainty, the same is not true of the judges.

5. Choice of mediators

Only practising attorneys-at-law have been identified and trained as mediators. A number of them have distinguished themselves as extremely combative court room practitioners and it was only partly amusing that there was some sniggering among the non-lawyers when those who have been trained as mediators stood up to identify themselves at the seminar.

Lawyers have an almost evangelical faith in the nobility and exclusivity of their profession. Perhaps this is why Barbados' Chief Justice Sir David Simmons who, with a hint of defensive jealousy, said that "the monopoly of lawyers in the management and settlement of disputes is under threat from a new class of professional mediators and others offering services in ADR in the common law world. It is counsel of prudence to be forewarned and forearmed."

6. Government support

So far there is nothing to indicate that the initiative has the unqualified support of the Government. All pronouncements are made by the Chancellor who, whatever his conviction about ADR, would recognise the backlog of cases as reflecting on the judiciary of which he is the head. If the Attorney General would show the kind of interest which President Clinton's Attorney General Ms. Janet Reno had in promoting ADR, it would answer critics who argue that ADR as conceived is self-serving, financially and otherwise.

Conclusion:

The active promotion of settlement by judges may have dangers, particularly when it is driven by a concern for 'reducing the backlog' which is an uncomplimentary reflection on the judiciary. Yet, the movement towards ADR is both desirable and inevitable and if well managed, could significantly reduce the national ethos of adversarial behaviour and practices at all levels of the state and the society. We need not only court-driven ADR but a culture of dispute resolution that serves the interest of justice and society.

ADR must extend beyond the commercial court which is already receiving disproportionate attention and resources. It commends itself to dispute within communities and to family matters as well as in environmental issues and cases involving the poor who cannot afford traditional justice.

The acting Chancellor needs to follow through on his promise of consultation which has so far taken place mainly within the legal fraternity and sorority. Not giving sufficient consideration to the selection of how and what types of cases are identified for ADR and whether a particular case will be helped by mediation may be imposing on the parties unnecessary burden and costs.

ADR needs to be widely promoted in society and its victories announced. This does not mean overselling but a real and realistic advertising of its achievements. Moreover, the exaggeration by persons associated with the court-assisted Mediation Centre of its achievements is unfortunate. If an ointment is effective, there is no need to attribute to it reptilian qualities.

Issues of payment to mediators and other housekeeping matters should be resolved as a matter of urgency. It does not serve the interest of the nation and the cause of ADR if the pioneering group becomes de-motivated.

In the USA retired judges have proved excellent mediators and they should be called upon to continue to make their contribution to society in the less pressurised environment of ADR.

ADR is a rich, useful and necessary field which can transform not only our court system and the litigation process but also the way the society operates and interacts. It is faster, less expensive and more accessible to all strata of society. It deserves national support.