Home' Trinidad and Tobago Guardian : November 13th 2013 Contents November 10 to 16 is mediation week. It is a week
designated by the Mediation Board of Trinidad and
Tobago for the promotion of mediation as a reliable
and accessible conflict resolution mechanism.
The board is a regulatory body created by the Medi-
ation Act No 8 of 2004. Its main objectives under the
act are to certify and to regulate mediators, mediation
trainers, mediation agencies and mediation training
As regulators they consider it important that the
public be aware of the nature of the process of mediation,
its benefits and its various applications, which can
have a huge impact in positively transforming lives by
peacefully resolving conflict.
The theme for this year s mediation week is Building
a Caring and Peaceful Nation Through Mediation.
Today, the T&T Guardian continues a series of articles
in commemoration of the activities.
In a commercial dispute arising out of a building
contract, the parties were at loggerheads for years.
The claim itself spent some years in the court system
with applications for further discovery, procedural
applications to strike out the case, then appeals to
the Court of Appeal over those procedural applications,
several case management conferences to manage the
boxes of documents being produced by the parties,
which they saw as important for the trial and pre-
trial reviews to determine which issues needed to be
tried. The court referred the matter to mediation. The
matter was settled in less than two hours.
In a commercial dispute between landlord and
tenant over the breach of a covenant to repair and
the landlord s counter-claim for repossession for non-
payment of rent, the case was referred to mediation
and was settled in less than 20 minutes.
In a complex medical negligence suit brought by
a claimant who alleged the medical institution had
botched her surgery, even though the matter was well
advanced with pre-trial applications filed, the parties
walked away after a successful mediation with a private
agreement off the record or, as endorsed on counsel s
brief, after three sessions of mediation.
Think about the time and cost that those commercial
entities saved in not conducting a full trial.
Think about the uncertainty of the litigated outcome
which causes internal corporate panic and the calm
of a quick solution to commercial problems.
In the Judiciary s court-annexed pilot project, con-
ducted from 2010 to 2011, where 60 commercial dis-
putes were sent to mediation at various stages
of preparation for trial, 60 per cent of the
cases were successfully mediated and in
many of them the matter was settled in the
first session and in less than three hours.
In those cases, 90 per cent of those inter-
viewed said they would mediate their dispute
if one should arise in the future.
Since 2010, the Mediation Board of
Trinidad and Tobago has seen a rapid increase
in applications for certification to become
mediators from attorneys, corporate counsels,
state counsels, human resource personnel,
project managers and engineers.
Training programmes in mediation are
now being offered to various companies.
From speaking to some mediation trainers,
it would appear mediation training or expo-
sure may have already become a sine qua
non of the development of a CEO or human
resource management personnel.
There are now four private mediation agen-
cies which were developed by either attorneys
or the corporate sector.
They are the Dispute Resolution Centre,
Direct Resolve Ltd, Mediate It Limited and
Conflict Resolution and Mediation Centre
of Trinidad and Tobago.
These developments signal that rapidly in
the business sector, the word catching on is
not "why mediation? but "why not."
Why not indeed. In the commercial world
mediation is the most appropriate form of
Mediation of construction and commercial
disputes is in essence a dialogue within a
relationship and a quest to determine how
this relationship is to work or end.
Its attraction in the commercial world can
be summarised under the 5 Cs: Commercial
solutions, consensus building, continuity to
business relationships, taking control over
the solution and preserving the confidentiality
of the business.
Such a process is more enduring than one
that is imposed on the parties and is one of
the principal advantages of mediation over
In the construction industry, for instance,
projects may last some years.
During that period, disputes frequently
arise and it is vitally important to maintain
harmonious relationships to see the project
through to a successful completion.
If the dispute can be resolved at an early
stage, there is less scope for parties to take
up entrenched positions, retreat from which
may be perceived as a sign of weakness or
loss of face.
If the parties can establish a precedent for
settling disputes, this can only enhance the
relationship on site so that a constructive
atmosphere with the parties working together
to achieve a completion as a team can be
established, rather than what is often an
acrimonious and adversarial climate on site.
For this reason, the Mediation Board has
advocated that the business community
should pledge their allegiance to a mediate s
The mediate first pledge is taken by the
company to explore the use of mediation as
a first resort to resolve any dispute before
Indeed, mediate first before litigating must
be the new pledge of the business community,
not only because of the benefits of mediation
but because the rules of court which govern
civil litigation promote a culture of mediating
In the rules governing the management
of cases, a judge is empowered to encourage
parties to explore mediation before continuing
If parties unreasonably refuse to mediate,
the court can in its discretion penalise that
party in costs.
Further, there are pre-action protocols
which require parties to explore mediation
after exchanging "pre-action protocol" letters.
The fundamental premise of the Civil Pro-
ceedings Rules which govern the resolution
of commercial disputes is in fact that a trial
is a last resort.
So for those men and women of commerce
who still wish to be unyielding and uncom-
promising, who prefer to go to their grave
with their court clothes rather than mediate
... you will find no sympathy with the court.
For attorneys, their role is to counsel their
clients on the mediation process. In fact, it
is an obligation of attorneys in their code of
ethics to seek to obtain reasonable settlements
of disputes for their client.
It calls for a shift in focus on addressing
the interests of a client outside of the acri-
mony of battle in litigation and co-operating
with the opponent to look for logical solu-
tions. Indeed, the quicker a dispute is resolved
the greater the benefits to the attorneys
practice and reputation.
In promoting a mediate first pledge, the
Mediation Board is therefore advocating a
new culture from "I ll see you in court" to
"let s mediate."
It is a rational and realistic approach to
dispute settlement. It begins and ends with
your creativity and sensibility.
The opportunities to use mediation to
solve commercial disputes are endless, and
we are only limited by the extent of our own
imagination. (Mediate First).
Guardian www.guardian.co.tt Wednesday, November 13, 2013
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Mediation the way to go
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