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Chief Justice Marston Gibson Supports ADR But …

Barbados’ new Chief Justice, Marston Gibson, has admitted that the Barbados courts are in crisis. In a speech to the Chamber of Commerce and Industry yesterday, he stated, “I am very conscious of the fact that our courts are in crisis and I am conscious of the fact that we need to do something about…

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Marston Gibson, Chief Justice of Barbados

Barbados’ new Chief Justice, Marston Gibson, has admitted that the Barbados courts are in crisis. In a speech to the Chamber of Commerce and Industry yesterday, he stated, “I am very conscious of the fact that our courts are in crisis and I am conscious of the fact that we need to do something about it.” .

One of the courses the CJ intimated that he would follow is one long espoused by BU, that of Alternative Dispute Resolution (ADR). BU is also happy to read of the hearty support which President of the BAR Andrew Pilgrim has given to his Lordship’s approach.

The CJ is looking at the Organization of Eastern Caribbean States (OECS) Practice Directions. BU assumes that the CJ refers to the Rules contained here.

If so, we are very hopeful but:

The problem, as always, is going to rest with the names that are approved as mediators. We certainly do not want to see an incompetent judiciary being mirrored by an equally incompetent list of mediators. All this will do is add court-sponsored time and expense to the bills of the litigants, with the case ending up back where it was in the first place – before the courts. All this will be productive of is greater expense for litigants and money by way of “jobs for the boys” in the pockets of a selected group. We have all had quite enough of the “jobs for the boys” from the justice system. It is encouraging to note that the CJ will likely dictate the scale of fees to be paid for mediations, thus removing the possibility of mediators charging whatever they think they can get.

Our money is on the CJ to get it right. He has already taken the first step by publicly and courageously admitting that the judicial system is in crisis. Something that no judicial (or government) official has been prepared to own up to until now.

  1. Shakaelu Avatar
    Shakaelu

    I wish to support the position taken by the Chief Justice re ADR implementation in our legal system instead of civil litigation. As a matter of fact Civil Procedure Rules promotes use of ADR. This being my predisposition I should like to share my views on the matter with the BU audience.
    ADR is a process – alternative to court action (civil litigation) – where the parties choose an independent third-party and agree on the timetable for the settlement of their dispute rather than having these imposed by someone else, i. e. a judge. It is a process of adjudication and parties may, or may not agree at the outset to be bound by the decision. Lord Justice Dyson in Halsey v. Milton Keynes General NHS Trust [2004] states:
    The term ‘alternative dispute resolution’ is defined in the Glossary to the CPR as a ‘collective description of methods of resolving disputes otherwise than through the normal trial process.’ In practice, however, references to ADR are usually understood as being references to some form of mediation by a third party.
    Lord Woolf, in his “Access to Justice”, Interim Report, June 1995, says:
    In recent years there has been, both in this country and overseas, a growth in alternative dispute resolution (ADR) and an increasing recognition of its contribution to the fair, appropriate and effective resolution of civil disputes … litigation is not the only means of achieving this aim, and may not in all cases be the best.
    Why the need for alternative dispute resolution (ADR)?
    Some businesses in more developed and developed countries spend well over a third of their legal budget on litigation and every major dispute is costly in money and time which can be reduced if ADR is used instead of the court system. The court system is under pressure because members of the public are much more likely to seek a legal remedy when they have a grievance, they are more litigious. Furthermore, the judicial man power that is deployed in the court system may be short in number, overworked, and/or inefficient. People from all walks of life keen to enforce their rights; students are taking legal action for poor teaching and the state administrative bodies, be it hospitals, the police or government are frequent targets from many groups and individuals. ADR has long been a more appropriate form of dispute resolution and it has been encouraged more vigorously since the Woolf Reforms.

    Some Reasons why ADR is Preferred to Court Action

    ADR has advantages over court action, where a party wants to:
    • maintain a relationship with the other side once the dispute is over, especially in relation to family, and commerce;
    • to stay in control of the process and not hand it over to the judge;
    • be reassured about the costs or the delay in waiting for a trial;
    • keep the dispute and settlement confidential;
    • achieve an outcome that can be agreed which a judge could not award;
    • look for a settlement rather than take the risk of a judge finding against them;
    • to continue to be neighbours or businesses who deal in the same local area or type of work;
    • unbiased;
    • use a system that is voluntary;
    • use a system that encourages early settlement of disputes;
    • use a system that is less stressful than going to Court;
    • use a system that is less formal than a trial by judge.

    Why is ADR suitable alternative to civil litigation?

    The use of ADR in place of litigation is promoted by the Civil Procedure Rules, the courts, and the government. Rule 1(4) (2) (e) of the Civil Procedure Rules contains a procedural code with the overriding objective of enabling the court to deal with cases justly.
    The court must further the overriding objective by actively managing cases, and this includes encouraging the parties to use an ADR procedure if the court considers that appropriate, and facilitating the use of such a procedure.
    Therefore, under the 1999 Civil Procedure Rules a judge can stay (stop) cases so the parties can try arbitration or other mediation methods. Rule 24(1) permits the court to adjourn proceedings “while the parties in dispute try to settle the case by alternative dispute resolution”. The practice direction for pre-action protocols has been amended from 6th April 2006 to reinforce the principle that parties must think about ADR before taking a case to court. Failure by the parties to do so may place the party who refuses to consider ADR at risk of adverse consequences in costs.
    Government, and Lord Chancellor’s commitment to ADR (UK)
    The UK government is committed to settling legal disputes by ADR methods whenever the other party agrees to it. The Lord Chancellor has said that there are often ‘alternative ways of settling the issues at stake which are simpler, cheaper, quicker and less stressful to all concerned than an adversarial court case. Alternative dispute resolution techniques have evolved as an attractive alternative to formal judicial proceedings. They are a valuable way to access justice — providing services and remedies and costs which are proportionate to the issues at stake
    Lord Chancellor’s Department Press Notice 117/01 Government Pledges to Settle Legal Disputes out of Court (23 March 2001). The savings in the Government’s legal costs in 2004 are estimated to be £14.6 million, an increase of 128% on 2003.

    Alternative Dispute Resolution (ADR) includes:
    • Negotiation
    • Early Neutral Evaluation (ENE)
    • Arbitration
    • Mediation and conciliation
    • Small Claims
    • Ombudsmen
    • Tribunals
    I believe that if ADR becomes an integral part of our legal system the parties who are involved in disputes would get greater justice. I look forward with keen anticipation to the Chief Justice implementation of this alternative procedure.

  2. David Avatar
    David

    @Shakaelu

    Thanks for that detail the one area BU is unclear is the downside of rolling out ADR unsupported by legislation.

    What is the downside if any.

  3. anthony Avatar
    anthony

    @david

    did we ever think he not going to do so. His job before was basically adr nothing more.

  4. Amused Avatar
    Amused

    @Shakaelu. Well put. However, I think you will find that the type of ADR that the CJ has in mind, if it is along the lines of the OECS Rules of 2003 that BU has linked in its report, is more akin to the mandatory mediation that one comes across in the Canadian courts. For instance, it is down to the judge (after applying certain guidelines) to determine whether to order a case to mediation or not. Next, there are time frames established in such an order under the OECS Rules, one of which is that the mediation must be set for within 45 days of the judges order. The idea that litigants can therefore do things at their own pace is not actually quite correct. Then too, there is the choice of mediators whereby the parties are expected to agree between themselves as to an appropriate mediator and, if they fail, the judge has the right to impose a mediator on them. I am 100% in favour of all that. However, a big problem is going to be if the parties do not agree on a mediator from the court’s list of mediators and the judge imposes a choice from that list – it is not inconceivable that one party may object to everyone on a LOCAL list. In circumstances like that, I cannot see the benefit of the mediation. So, are we therefore going to open matters up to external jurists from other countries to be put on the list? I hope so as this would likely solve that problem. But there is a slight downside to that as well, as the litigants would find it more expensive, as it would involve travel, per diem subsistence costs etc. In practical terms also it may be a little difficult as senior counsel in Canada and the States and the UK charge a fee of about $1,800 per hour for their services, so are we expecting the fees ordained by our courts to approach these? In Canada and the USA, mediators are extremely well schooled in their work, whereas in the United Kingdom, there are entire departments of law firms whose sole function is ADR and a lot of their personnel are lamentably deficient. Having said all that, however, I am in complete and enthusiastic agreement and I just hope like hell that the pitfalls can be avoided.

  5. David Avatar
    David

    @anthony

    The issue here is whether ADR will add positively to where we find our Court System.

    Also it is not as if this guy does not know law.

  6. seeker Avatar
    seeker

    True.

    Ihope this dude really comes through with it, and not be a bunch of hot air…like so many have been with various issues in the past!

  7. David Avatar
    David

    Seeker

    He can’t do it alone. The layers, the government, the people as key stakeholders will have to be supportive.

    Above all he will need some resources.

  8. enuff Avatar
    enuff

    @ David

    I guess Sir David had those ‘requirements’ at his disposal. SMDH

  9. David Avatar
    David

    @enuff

    Yes he did, it is why BU was hesitated when dishing out praise in his direction.

  10. David Avatar
    David

    We understand 22 persons have been trained in ADR according to the President of the ADR Association of Barbados.

    It would be nice if those persons can be made public.

    Were these people trained on their own volition or selected?

    Interesting that this association has been in existence for 7 years.

  11. David Avatar
    David

    Surprisingly there is a very professional website of the Barbados ADR Chapter:

    http://adrbarbados.org/approved_roster_of_mediators

  12. Amused Avatar
    Amused

    @David. I was browsing BU and came across the information about the ADR Association of Barbados Inc. http://adrbarbados.org/ . This mirrors the mediators companies of the United Kingdom, the USA and Canada. It is a private, non-governmental company. In fact, it has no official recognition and lays claim to being a not-for-profit organisation. In other words, all its monies go by way of remuneration to its mediators and, least you think they are working pro bono publico, forget it – they are working, when they work, for substantial profit – only their company fails to profit.

    So, bottom line, as the ADR Association itself says, “It is one of the fastest growing conflict management skills in North America, Britain and Australia. “

    Question: When is the last time you saw a group of lawyers do something for nothing? I think you can assume that the source of big bucks has been identified and this ADR Association hopes to be able to take pride of place on the bandwagon. However, the CJ clearly intends to make up his own list, so they may well be out in the cold with court accreditation a requirement, hopefully.

    The ADR Association lists as its members the following, only a few of whom register in the collective consciousness of Barbados. I have identified these. Certainly, although competent, it is not a list to inspire confidence at a judicial or a quasi-judicial level. They are none of them senior members of the Bar and only one of them a former member of the judiciary whose appointment raised questions of nepotism in the first place.

    Almerigi, Sharon
    Beckles, Michael W.
    Bradshaw, Sandra J.
    Daniel, Mya D.
    Edwards, Joseph E.
    Edwards, Kerri-Ann L. D.
    Franklin-Brewer, Beverley J.
    Griffith, Derek
    Hathiramani, Kumar L.
    Hathiramani, Vidisha K.
    Hinds, Brenda
    Knight-Williams, Marguerite
    MacCormack, Marie A. (better known as Lady Simmons, the wife of former CJ Sir David Simmons)
    Mohammed – Cumberbatch, Sherica J.
    Pilgrim, Philip A.
    Reece, Sheridan A.
    Reeves, Jefferson, O.
    Rollit, Ian W.
    Shields – Searle, Dawn M,
    Simmons, Lynn-Marie (the daughter of Sir David Simmons and MacCormack, Maria A.)
    Taitt, Monique, C
    White, Eva R.

    So, we have to wonder why the courts were reduced to this parlous state of crisis by the last judicial administration, thus making mediation of a far more urgent necessity than heretofore. Perchance there was method in the madness?

    Now watch Spratt get his Y fronts in a twist.

  13. David Avatar
    David

    @Amused

    Interesting.

    Should we assume there was the desire on the former CJ to outsource Court mediation to members of Barbados ADR Association? The decision seems sound if we accept the 22 mediators listed on the website had to endure accreditation.

    However if we scan the list as you have opined we see no ‘big’ names. Also we are led to believe the CJ will pick his team of mediators. What will be his criteria?

  14. Amused Avatar
    Amused

    @David. No, we should certainly not assume that at all, although he might consider some members of the ADR Association acceptable. Who knows.

    I can only guess that the CJ will approach senior and highly respected practice licensees (whether they be senior counsel or retired judges) asking that they agree to have their names placed on the mediators list. I expect he will formulate his own criteria for appointment as court-appointed mediators. I expect he will form a committee to determine whose these mediators will be. I think it unlikely that he will allow an “ADR company” to self-appoint its members to the court list.

    I found it interesting that the ADR Association of Barbados Inc. was registered on November 29, 2004 as Company No. 24525 with CAIPO and this is easily ascertained by a search of the CAIPO website. http://www.caipo.gov.bb/search/search_details.php?cnum=24525&ccat=Company&cdat=2004-11-29&cnam=ADR ASSOCIATION OF BARBADOS INC.

    At that time, we know who the Chief Justice was and, while we realise that his wife had retired from the bench and therefore there was no impropriety on her part, it still raises questions that need to be answered in light of the now crying need for ADR in the face of the crisis in which the justice system finds itself.

    Understand me, I am not saying that anyone on the list is not qualified to serve as mediators, merely that there are others more qualified and, moreover, whose names would have the effect of conferring far greater confidence in and adoption of ADR, were they on the list. Briefly, I believe that the CJ should be looking to people like Sir Roy Marshall, Sir Denys Williams, Sir Frederick Smith, Sir Henry Forde, Mr Errol Chase, Mr Frederick Waterman and other jurists of their undisputed (and unquestioned) stature. Always provided they are willing to serve. In other words, go to the cream of the legal profession, rather than the milk (whole or skimmed).

    I also believe that ADR could be employed successfully in some major civil cases, but to do this you might need mediators from outside of Barbados. In this connection I think most particularly of people of the stature of recently-retired English Chancery Court Judge, Sir Gavin Lightman who, incidentally, has a license to practice and has indeed practiced prior to his appointment to the Bench, in Barbados. There are others like him, as well as some, such as the Canadian lawyer, Lorne Silver (whom you mentioned in a previous blog yesterday) who have knowledge and experience of Barbados and its laws. Obviously, people like Sir Gavin and Mr Silver would increase the expense of ADR, but I do feel that it might turn out to be a very wise and time-saving economy and could most effectively reduce the backlog of the Barbados courts and deliver timely resolutions.

    You see, there is nothing that says that a party to ADR must accept the findings of the mediator – therefore, one needs to have mediators whose opinions will be highly respected and adhered to. I note that in the OECS Practice Directions that it is mandatory for the parties themselves to attend mediation, with or without legal counsel. I cannot help feeling that common sense dictates that those parties are more likely to accept the rulings of the leaders of the legal profession, rather than one of a lesser stature.

  15. John Avatar
    John

    The problem with Amused’s list of possible mediators is many are/were part of the Court system of which the CJ says:

    “I am very conscious of the fact that our courts are in crisis and I am conscious of the fact that we need to do something about it.”

  16. John Avatar
    John

    … and then there is the CLICO debacle !!

    http://www.trinidadexpress.com/news/Lightman_bows_out-106739488.html

  17. David Avatar
    David

    @John

    Bear in mind ADR would be applied in an alternate setting.

  18. subtext Avatar
    subtext

    @John. I imagine that you probably have a few names that you might suggest for consideration as mediators. I have received the distinct impression that the CJ has an open mind, so enlighten us and, if he reads BU, the CJ as well.

    As a matter of fact, I recall the tenure of Sir Frederick as a justice of appeal pre-dates the setting in of the rot and the tenures of Mr Waterman and Mr Chase started before the rot set in and they were never in control in any meaningful way to stop the rot. However, their judgements and professional conduct speak for themselves – very highly. Sir Roy and Sir Henry have never been a part of the judiciary, nor were either of them (including Sir Henry) filling any role that could have prevented the rot. As for Sir Denys, I doubt whether anyone would place any blame for the rot on his administration.

  19. Amused Avatar
    Amused

    @Subtext. Agreed.

    @David. The way the OECS Practice Directions are set up (which doesn’t necessarily indicate that this is the way the CJ will go with his practice directions) a judge is allowed to weigh up the advantages of referring a case to mediation, using certain criteria – which can be objected to by either party. The judge can then give an order that mediation is to be undergone. The mediation must follow within 45 days, with materials from the parties to be delivered to the mediator seven days prior to the mediation. All parties are required to agree on a mediator from a list of mediators provided by the court. If there is no agreement, the judge referring the case has to choose a mediator. All parties are required to attend the mediation and, if represented otherwise (as may be necessary in certain cases) must produce to the mediator their authority to bind the party they are representing. The mediations are set for a period of three hours, that can be extended presumably if it looks as if a solution will be reached. If no determination is reached, the matter is referred back to the court. It is a very clean and tidy process as it reads and, pitfalls aside, ought to work. It has the potential to save considerable court time and taxpayers’ money. It appears to me from the OECS Practice Directions that the venue is provided within the courts. If the CJ does opt to go this route, he and his committee will certainly adapt the directions to suit Barbados. He and his committee will also doubtless provide a suitable list of mediators from which to choose. So now we wait and see how and if the CJ will choose to go with this and of great interest will be the names on the list of mediators. ADR is big business in other countries, so the competition is likely to be ferocious to get put on the list – look out for nuff politics. It isn’t simple. There are many overseas firms of solicitors who have in the past sent representatives down to the Caribbean to educate mediators and also to drum up business in the region for their firms to provide mediation. The CJ has, wittingly or unwittingly, opened the flood gates of applications and approaches to his office. It is going to be very interesting and very exciting. If properly handled and regulated, it could solve a lot of our justice system’s problems. I suppose that the most exciting part to me is the possibility it gives to appoint a mediator who is a specialist in that particular area of law in which the dispute lies. I am joyful and hopeful. There are far too many cases that would be best handled by mediation and this, a least, could be a start in the right direction.

  20. John Avatar
    John

    If the court system is in crisis, it did not magically get there overnight.

    I don’t think a date can be fixed after which the rot set in.

    I think the CJ is looking both at the judges and the lawyers who practise before those judges when he makes his remarks.

    I am not going to be so dumb as to name any names.

    However, the wonderful thing about the court system is that it creates a record.

    So, for me, logic would dictate that the record in cases which support the thesis that the Court system is in crisis would speak for itself.

    Check the record!!

    It will speak for itself.

  21. David Avatar
    David

    @John

    Don’t let us split hairs, if a Mediator’s track record does not recommend him or her then that person can be replaced.

  22. BMcDonald Avatar
    BMcDonald

    The rush to impose on the ADR persons who are deemed socially acceptable to certain strata in this country is “amusing”. The problems arose in the first place because of functionaries who failed to be cognizant of the need to keep the docket moving and delivering timely decisions of good quality. In this technological age, when this forum can be the source of such distractions such as “per diems” and “travel and accomodation” as opposed to technological innovation and getting the job done, we have not really learned anything. Who were the sitting appellate judges given such short shrift by the Privy Council in the Rev. Ed Gatherer matter? The Lord Chief Justice should focus on adherence to rules by competent functionaries and forget the socializing tendencies and name dropping in Bim.

  23. John Avatar
    John

    David | October 23, 2011 at 12:27 PM |
    @John
    Don’t let us split hairs, if a Mediator’s track record does not recommend him or her then that person can be replaced.
    +++++++++++++++++++++++++++++++++++++++++++++

    It is as simple as that!!!

    No need to name names!!

    There is always a record, …… or part of it ……. that is available!!

    The record will speak to the performance of the lawyers and the judges.

    If the objective is getting decisions within a given time to clear a backlog, then pick the top ten cases that offend that objective and avoid the names that appear repeatedly in those cases.

    No big deal!

  24. Lounge Suit Avatar
    Lounge Suit

    The issue here is a simple one, Barbados should have structured ADR but it is the bloody lawyers who will block this all the way. They like it the way it is, which is the get to bilk their clients for fees while the lagal system takes 10 years for a dispute to be heard and a judgement handed down.

  25. Home Avatar
    Home

    Yardbroom:

    I agree, Mia must take the floor for this ‘Party” to start. The music will play but the dancing cannot start – so Owen can dance all around the issue of his supporting Mia during his tenure as PM and now in Opposition giving the impression that she is not ‘fit’ for leadership. With the recent rains in Barbados any wool over our eyes was washed away.

    I said in an earlier post BLP has to tell the public the reason Mia was removed from leadership within her Party. No-one cares about Owen’s 14 years as PM today since his grand performance during the ailing and afterward death of Thompson. This is what is before us and he has to deal with it. He cannot start a political meeting without addressing this. People want to hear why he did what he did in 2010 taking his full support from Mia the then leader of the Opposition. He will have to state her inability to manage the position, and, her alleged ‘lifestyle’ is not going to be an acceptable answer, because, it is not proven that it inhibited her from performing her duties when she was the Oppostion Leader, Deputy Prime Minister, Minister with portfolios with Owen’s blessings.

    We are not Owen’s little children that he can come and say this discussion is not for you at this time. The electorate may remain silent and appreciate and accept certain activities as ‘politics’ like overthrowing A in support of B. However, when you say that you are taking a break and come back to say you will lead because of a person’s ‘lifestyle’ you are insulting the electorate.

    Owen can shout, scream, shake, bend, turn … but, until he states the reason for the change of leadership within his party dancing will not happen. Owen said that David Thompson was not fit to lead Barbados. For years that was the music and the dance of the BLP – just imagery. He cannot do it with Mia without stating fact because he gave her his ‘full’ support. His usual comment ‘forgive me, I am only human’ will not suffice now either.

  26. Chief Justice Marston Gibson Should Consider Expanding Alternative Dispute Resolution To Include Family Law Matters |

    […] BU’s previous blog about Alternative Dispute Resolution (ADR) most if not all of the comments  shared were favourable […]

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