Mediation likely to improve with new civil procedure rules

Guyana Chronicle news item, Tuesday 21 July 2009 - "Mediation likely to improve with new civil procedure rules" - http://www.guyanachronicle.com/news.html

By Nadia Guyadeen

Over the years, there have been a growing number of backlog cases in the Supreme Court, especially as it relates to civil matters.

As a result, mediation was introduced as a mechanism to settle disputes outside the courtroom.

Mediation, a form of alternative dispute resolution (ADR), aims at assisting two or more disputants in reaching an agreement. The parties themselves determine the conditions of any settlement reached rather than accepting something imposed by a third party.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement on the disputed matter.

However, mediation in Guyana is not used to its full potential, as there are thousands of cases before the High Court and very few of them are referred to mediation.

One of the reasons suggested for this is that mediation is not mandatory; and due to the litigious nature of Guyanese, a number of petty matters are taken before the court rather than going to mediation.

Under the current system, a judge can suggest mediation but the parties have to agree to try it.

But new Civil Procedure Rules are being formulated in which mediation becomes an integral part of the litigation process, in that it will be mandatory.

Under the new rules, the judge can direct that the parties avail themselves of mediation.

Also, the new rules will include case management. This newspaper understands that at the case management stage, the judge, in his discretion, can send a matter to the mediation centre.

Persons in the legal profession believe that once mediation becomes an algebraic step in the litigation process, the accumulation of backlog cases will be avoided and it will speed up the litigation process.

Mindset shift

A prominent Guyanese attorney told this newspaper that mediation has been working well in other jurisdictions, but expressed the opinion that for it to work in Guyana, there is need for a cultural shift in the mind set of persons.

According to him, in addition to the mind set shift of the litigants, lawyers will also have to adapt the same attitude towards the procedure.

He added that there are a vast number of lawyers and only so many cases to be divided, and as a result, they often encourage their clients to go before the courts.

He noted that there needs to be a fundamental change in the approach to mediation and people will need to accept it as a necessary process.

The lawyer also contended that mediators need to play a more proactive role. However, as it currently is, a mediator cannot give directions but serves the purpose of keeping order while parties discuss the disputed matter.

Unfortunately, this does not change under the new civil procedures rules.

According to the lawyer, mediation is essential since the 12 High Court judges are not enough to handle the large number of cases.

There will be several other major changes under the new rules which are highly technical.

For instance, a writ will be referred to as a claim form, there will no longer be bail court, pleadings will change, and the administrative process of the case will be in the control of the judge and not the registry.

The new rules will bring Guyana in line with the rest of the Caribbean. Since the Caribbean Court of Justice (CCJ) will be the final court of appeal for CARICOM countries, there was the need to rationalise Guyana’s procedures so it will be in sync with the rest of the Caribbean.

The rules of court will be similar if not identical to those in the rest of the Caribbean, so the CCJ will not have to look at each country’s individual rules.

It also simplifies teaching in law school.

Backlog

The overall objective is that the mediation process will mitigate the backlog which currently exists in the court system.

Statistics acquired from the Supreme Court show that 6037 civil cases were filed for 2008. Of those, 4,448 were concluded, leaving 1,589 pending.

The remaining cases will be added to the 21,366 civil cases backlog which existed at the end of 2007.

There is also a backlog in the court of appeal as it relates to matters in both the civil and criminal jurisdictions.

According to the Supreme Court’s annual report for 2007, in its criminal jurisdiction, 23 appeals were filed in 2007, to which must be added 38 pending from 2006. Of this number, 10 were concluded, leaving 51 pending for 2008.

In its civil jurisdiction, 133 appeals were filed in 2007, to which must be added 422 pending from 2006, making a total of 555. Of this number, 35 were concluded, leaving 520 pending for 2008.

Of the pending 422 civil appeals, 22 were to be uplifted by Attorneys-at-law for the Appellants to prepare and file the respective Records of Appeal. Fifteen were awaiting the Records of Appeal to be filed; 13 are waiting for records to be settled, and 24 are awaiting fixtures.

There were 42 chamber applications filed in 2007, to which must be added three pending from 2006. Of this number, 10 were concluded and left 35 pending for 2008.

In 2007, 28 complaints were filed against attorneys-at-law by clients for hearing before the Legal Practitioners' Committee. To this number was added the pending 40 matters from 2006, making a total of 68 complaints to be heard.

Of this number, 16 were completed, and reports for eight of these are to be written and sent to the Chancellor and the Attorney General for disciplinary action to be taken. There was a pending backlog of five complaints to be heard in 2008