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.
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
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
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
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
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
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.