– Justice Carl Singh
ACTING Chancellor of the Judiciary, Justice Carl Singh, chided lawyers last Friday morning for their unresponsiveness to mediation in Guyana, a process that could resolve legal matters quickly, efficiently and cost-effectively, but which lawyers have downplayed due to fear of ‘hurting their pockets’. The first-ever mediation forum was held by the Mediation Institute of Guyana (MIG) at the Ocean View International Hotel at Liliendaal, East Coast Demerara for the purpose of encouraging greater use of the process as a means of Alternative Dispute Resolution (ADR).
ADR is a term used to describe a number of options outside the traditional litigation process in the courts. It includes negotiation, mediation, arbitration, adjudication, settlement conference, facilitation and conflict resolution.
Themed ‘Embracing the Potential of Mediation’, the initiative was funded by the United States Agency for International Development (USAID), and saw participation from judges, attorneys, magistrates, trained mediators, and members of the business community.
During his very pointed remarks at this forum, Justice Singh made the observation that the older generation of lawyers “does not want to hear anything about mediation,” although it is deemed a “viable alternative to the litigation process.” On the other hand, looking around the audience, he found that a number of young lawyers were absent from the forum.
Justice Singh declared: “Steps are taken to introduce reforms in the legal system, and you see an unwillingness to participate; an unresponsive attitude. But there are dangers, because, as the sun will rise tomorrow, mediation would become an established culture in our system. I am determined. So, those who don’t want to expose themselves, don’t want to participate…are going to fall by the wayside.”
He offered that the lawyers’ attitude has to do with the popular feeling that referring their clients to mediation will hurt them in their pockets. “And I believe it is the concern for their pockets that is responsible for many of them not being here this morning; because there are those who conduct themselves ethically, but there are those who are concerned about their fees and are probably in the magistrates’ courts right now.
“There’s a significant group scavenging around the Georgetown Magistrates’ Courts, (but) they should come here and get an understanding that mediation will not hurt an attorney in his pocket. All that an attorney needs to do is fix the fee, with an explanation to the client that there is a contingency, and that means that this case will go to mediation.”
The acting chancellor opined that the Guyana Bar Association (GBA) can do more to motivate its membership to embrace mediation. “The GBA has failed to motivate its membership on a number of initiatives, and more needs to be done. I would support an initiative by the GBA to promote mediation among its membership.”
Justice Singh observed that mediation has been recognized at a national level, as was evident from the passage of the Alternative Dispute Resolution Bill. “So the framework is there. Lawyers must come to grips with an understanding of this process, of its merits and benefits.”
Singh noted that there have been challenges from very influential quarters to recourse mediation. “The fact that the bill was presented to Parliament does not lend any legal validity to recourse mediation. The government has demonstrated its support for ADR by passing this bill…but sometimes people come under the influence of all kinds of things and substances.”
“Mediation has been described as a waste of time, (and as) intended for lazy people. That, for me, is painful,” he remarked, adding that, internationally, mediation is an established culture in many respected jurisdictions. “All of these jurisdictions have established mediation procedures. Are those systems in those developed jurisdictions intended for the lazy among them?”
Returning to the attitude of some lawyers in Guyana, Singh said their application for an adjournment is another “scourge that confronts the legal system,” apart from the judicial delinquency. “And you were confronted with lawyers who didn’t have their witnesses; wanted to go to the bank; who had a hangover and couldn’t work, and sent their clerk to ask for a date; who fabricated excuses of all sorts to get an adjournment.”
The Mediation Centre, established in 2003, is located in the upper level of the High Court Library Building. Several persons have since been trained as mediators.
Meanwhile, Chairman of the Mediation Board of Trinidad and Tobago, Justice Vasheist Kokoram, also graced the occasion and delivered remarks.
He observed that, in taking this giant step of embracing the concept of mediation and institutionalising a court-annexed mediation programme, Guyana would have fashioned for itself a customised judicial system that is responsive to the real needs of litigants. This, he said, could unlock the maze and dispel the spells of the adversarial system by reinforcing simple and basic human values which permeate a mediation process.
Among some of the fears surrounding mediation that Justice Kokoram listed are unfamiliarity with the process, an overall increase in costs if mediation fails, and the feeling that it will deprive lawyers of their fees.
“We must liberate ourselves from these fears that somehow mediation is a mere bastard child of the judicial system…or it represents soft justice, or that  it is inferior to the rights-based system, or that it violates a person’s right to access the court.
“In liberating yourself from those unfounded fears of mediation, you would have responded to the increasing demands on our judicial system to be economical, responsive, efficient, and the changing global competitive landscape,” Kokoram pointed out.
Mediation is one of the ADR options that take into account the interests and needs of the parties. It is a process in which parties to a dispute appoint a mediator and actively participate in good faith in the mediation process, in order to arrive at a consensual resolution of the matters between them.
The process offers to reduce the backlog of cases in the court system, and allows for timelier access to justice.
It is cheaper than litigation, saves time and money, solves more than just the legal dispute, and considers the underlying issues. It preserves relationships, and avoids cases being continued by appeals.
There are no rules of evidence or procedures with mediation; it allows parties to create their own solutions.
Mediation agreements have a high compliance rate and are confidential – neither the mediator nor the parties can be compelled to disclose what was said at mediation.
It is a win-win situation – both parties win, because they determine the outcome.
At the forum, presentations were also made by MIG President Jamela Ali; Treasurer Gamal Khan; and USAID’s Chief of Party, Governance Enhancement Project (GEP), Mr. Dickson Bailey.