Court Recommended Mediation

The Judiciary has a duty towards the public to provide the facilities and the means, by which their conflicts may be resolved economically, impartially, equitably, by neutral third party intervention.

ADR is an instrument that could be used by the judiciary for achieving its duty to further the overriding objective of the CPR by managing cases actively and "encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure".

The purpose of suggesting, and in some cases ordering, the parties to use mediation is to encourage settlement of commercial litigation thereby limiting the requirement for judicial resources and freeing up the court for more complex cases.

(Halsey v Milton Keynes General NHS Trust and Steel v Joy) - The question of whether a party has acted unreasonably in refusing ADR would include but is not limited to:

  • The true nature of the dispute - as it is know that some of the most ardent of supports of ADR acknowledge that the subject matter of some disputes render them intrinsically unsuitable for ADR.
  • The merits of the case - in borderline cases, the fact that the party refused to mediate because it thought that it would win should give little or no weight. However, a watertight case may be viewed as a reasonable excuse.
  • The extent to which other settlement methods had been attempted - the fact that settlement offers have been made but rejected is a relevant factor in determining whether a compromise, and therefore mediation, may be successful.
  • Whether the cost of the ADR would be disproportionately high - consideration should also be given to where the sums in stake are so small that the costs of mediating will be similar to those litigating formally.
  • Whether any delay in setting up and attending the ADR would have been prejudicial - if mediation is suggested late in the day, acceptance of it may have the effect delaying trial, and
  • Whether the ADR had a reasonable prospect of success - perhaps the most critical "factor" is whether the successful party was justified in taking the view that mediation was not appropriate because it had no real prospect of success.

In an economy such as Barbados, oriented towards the delivery of a variety of services, the delivery of ADR, mediation and arbitration is an important contributor to the GDP and the totality of services generally. There is value in recognizing excellence and according distinction to deserving persons ... it is not elitism. It is a mark of quality, it identifies a group of persons as leaders in their profession and it is mark that is recognized internationally.

Because of our level of expertise within the Association, we have a role to play in the architecture of the legal framework of practice in Barbados.

We look forward to collaborating with you in an effort to strengthen our Association in making our skills and expertise available to meet the needs of parties more fully and empower the wider process of change in society, by educating our children and corporations in Conflict Resolution skills, offering transformative alternatives to the judiciary, and bringing the distinguished history of non-violence to bear on the Barbadian Community.

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