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Enter the Chief Mediator

Patrick Hoyos Published October 27, 2011

Barbados’ new Chief Justice Marston Gibson endeared himself to the business community on Friday with his folksy approach and by promising to do his all to speed up the glacial process of Barbados’ legal system.

He also pledge to “sensitise” his colleagues on the judiciary to the importance of making the “punishment fit the crime,” especially in praedial larceny cases. He noted that not only was it unfair for others to reap what one had sewn, but it also discouraged people from getting into agriculture, thus causing the island to spend valuable more foreign exchange on imported fruit and vegetables than was necessary.
 
Speaking to a packed Hilton conference room at the Barbados Chamber of Commerce & Industry’s monthly luncheon, Justice Gibson was preaching to the long-converted when he called for greater use of Alternate Dispute Resolution processes in Barbados.
 
The idea is for the courts to either recommend or mandate that parties in a dispute seek mediation or arbitration before going the far more costly, tedious and often seriously time-wasting route of what is somewhat wistfully known in these parts as the “justice system”.
 
Mr. Gibson told the business people assembled that long delays in the delivery of justice not only hurt the parties involved but reduced the credibility of a jurisdiction among potential foreign investors as a place to do business.
 
In his opening remarks at the luncheon, BCCI President Andy Armstrong called the present justice system “sclerotic,” which I had to look up: it means “becoming rigid and unresponsive; losing the ability to adapt.” That seems like an apt choice of word, Mr. Armstrong.
 
Except that it is much worse. It actually denies justice to some, who may die before judgment is given, or lose so much as a result of waiting that a verdict in their favour is moot.
Many countries, including the UK, have turned to the ADR process to help relieve some of the pressure on their courts, noted the CJ, quoting one recent commentator as saying that mediation attempts should be made “before things turn nasty and expensive,” especially in disputes among neighbours.
 
The CJ said he wanted to see ADR tried far more than it has been to date and he was able to disclose that the Attorney General had promised to push an apparently already-drafted bill enabling such through parliament. If it didn’t happen with the alacrity desired, he would even consider taking a cue from his colleagues in the OECS, some of whom have already set ADR in motion more formally via a “practice direction,” which would be overtaken by the law itself when passed.
 
So why don’t we have more use of the Alternate Dispute Resolution process here in Barbados nearly 20 years after it was first introduced?
 
The Chief Justice was that it could be a reluctance on the part of lawyers to practice ADR because they thought it might lead to lower fees. They might be thinking that it is better to stay with one client for, say, five years, working through  the court system instead of “going for volume” and producing two satisfied clients via the ADR process, who would then tell their friends and thus get the ball really rolling, he suggested.
 
Looks like we might need some mediation between the lawyers and the ADR professionals.
 
Noting that there were two or three types of ADR, the Chief Justice said the most popular was “mediation,” which involves bringing the two disputants together with a mediator. “The key to mediation is that you walk out of that room knowing the result of the dispute,” he explained.
 
Left to a judge to decide, one side might win while the other loses, or both might lose.
 
Accepting the idea that most people involved in a dispute wanted to have their “day in court”, the chief justice said he first wanted them, as much as possible, to have their “day in mediation.”
In his championing of ADR, the Chief Justice is also placing on himself the unofficial mantle of  Chief Mediator, raising to its highest level of public visibility the process of ADR and the need for it to assist in the meting out of justice in Barbados.
 
It may be a long haul, but the chief mediator has set the bar high and wants the business community to help him apply the pressure to the Executive to legislate for it effectively.
 
“Tomorrow is not promised to anyone,” he noted, adding “I am very conscious of the fact that our courts are in crisis and we need to do something about it.”