Chapter 1

Introduction to Court Annexed ADR

When the term Alternative Dispute Resolution (ADR) came into general usage it referred to a process that was alternative to the court system.1 However, the ADR processes truly independent of the court system are now being invoked as an integral part of litigation.2 The term court annexed is something of a misnomer because ADR can be integrated into a litigation process in a variety of ways not necessarily comprehended by the word annexed.3 This relationship between the court and ADR ranges from a formal order incorporating ADR into the litigation schedule to more informal court action that merely acquiesces in, recognizes, or validates resort to an ADR process before the trial of the case.4 Chief Justice Peter Underwood of the Supreme Court of Tasmania saw ADR and the courts like a department store with the quality goods, trial process in accordance with law, on the upper floors and a bargain basement or alternative dispute resolution in the basement. Close collaboration between the upper floor and lower floor might work to the advantage of both. Another way of looking at court annex ADR is as a multidoor court house.
5

Lord Woolf in his in Interim Report on the Access of Justice made it plain that he was not in favour of court annexed ADR.6 He suggested that ADR be merely considered at case management conferences. However he changed his position in his Final Report and suggested that the court should encourage the use of ADR at case management conferences and should take into account whether the parties have unreasonably refused to try ADR or
1

Murray et al, Processes of Dispute Resolution -The role of Lawyers. 2edn. ( New York: Foundation Press Inc., 1996), p.436 2 Ibid 3 Ibid 4 Ibid 5 H. Brown, A. Marriott, ADR Principles and Practice.2edn. ( London: Sweet and Maxwell Limited, 1999), p. 91 6 Ibid,p.28

behaved unreasonably in the course of ADR.7 He recommended that an early stage the court should explore the scope of ADR and see whether there is any way in which the court could assist the parties to resolve their disputes without the need for a trial.
8

This Report gave birth to the new Civil

Procedure Rules (CPR) introduced in April, 1999.9 The new CPR reflects Lord Woolfs idea in relation to the use of ADR. See Rule 26.4 (in Appendix). One of the concerns posed about court annexed ADR is whether it should be made compulsory. In Hurst v Leeming10, lightman (J) said that whilst parties cannot be forced to settle their disputes by means of ADR, they are strongly encouraged to attempt to do so. This approach is based on the proposition that a party who refuses to proceed to mediation without good and sufficient reasons may be penalized for that refusal and, most particularly, in respect of costs. Mediation is not in law compulsory, and the (professional negligence) protocol spells that out loud and clear. But alternative dispute resolution is at the heart of today's civil justice system, and any unjustified failure to give proper attention to the opportunities afforded by mediation, and in particular in any case where mediation affords a realistic prospect of resolution of dispute, there must be anticipated as a real possibility that adverse consequences may be attracted.11 Lord McKay is not in favour of court annexed ADR for several reasons.12 However these reasons will be examined in chapter 3. This paper is aimed at looking at court annexed ADR and the several states within Caricom who have amended their Rules of Court to introduce this system. Also it will examine of the extent to which this will assist in the speedy delivery of justice within the region.
7 8

Ibid Ibid 9 Sandra Minott-Phillips, The Administration of Justice and the Rules of Court, paper presented at the 8th Annual Bench and Bar Summit held on the 15th June ,2007 in Belize. 10 [2002] EWHC 1051, see Dunnett v Railtrack (2002) 2 All.E.R 850 11 Ibid, p.2000 12 Lord MacKay, The Administration of Justice. ( London: Sweet & Maxwell,1994 ), p.69

Chapter 2

Court Annexed ADR in the Caribbean

With the advent of the New Civil Procedure Rules of the UK, which reflects the ideas of Lord Woolf on the use of ADR within the courts, as a guide, new CPR modeled on those of the UK were introduced in several states within Caricom, while some states have made decisions to amend their Rules of Court.13
14

Chief Justice Dennis Byron stated that the rationale behind this

reform is a desire to promote a fair, efficient and effective delivery of justice. The main feature of the new rules within the Caricom region is the idea of
15

case management.

This system of case management involves identifying

cases which are susceptible to mediation and other ADR processes and encouraging the parties to use any of these processes if the court considers it to be appropriate.
16

Under the new CPR the management of cases is placed

17

in the hands of the judges rather than those of the litigants.

The several

states within Caricom which have either amended their rules of courts or made a decision to do so, have introduced or (is in the process of introducing) a Court-Annexed system of ADR via the case management system. States within Caricom which are in the process of amending their
13 14

Sandra Minott-Phillips,op cit,p. 1 Address by Sir Dennis Byron , Chief Justice of the Eastern Caribbean Supreme Court delivered at the presentation ceremony for the graduates of the Norman Manley Law School on Sat. 30th September, 2000. 15 V. Kodilinye,et al, Commonwealth Caribbean Civil Procedure.2edn( London: Cavendish Publishing Limited, 2004 ),p.252 16 Albert Fiadjoe, Alternative Dispute Resolution- A Developing World Perspective. (London: Cavendish Publishing Limited,2004) ,p.131 17 Kodilinye,p.252

Rules of court or which have amended their rules of court, which Professor Kodilinye refers to as the stampede towards Woolf (a) Jamaica (b) The Eastern Caribbean States (OECS) (C) Trinidad & Tobago (d) Belize (e) The Bahamas (f) Barbados (g) Guyana All of the abovementioned states19, with the exception of Guyana have altered their Rules of Court in order to introduce caseload management which entails encouraging the use of ADR processes. Part 25 of the new rules in these respective states, with the exception of the Bahamas where it is order 31A r.18, requires that the court must actively manage cases by encouraging the parties to use any appropriate form of dispute resolution including in particular mediation if the court considers it appropriate. 20 It is important to note that the Bahamas rules is slightly different since it provides for the dispute settlement conference as oppose to only a case management conference provided for in the other states.21 The parties have to first attend a dispute settlement and it is failure to settle at this stage that the parties will then be moved to case management conference. In a dispute settlement conference the judge or registrar may conduct a mediation
18 19

18

includes:

Ibid, Preface Jamaica (Jam)- Judicature ( Rules of Court) Act ( Civil Procedure Rules) 2002,OECSSupreme Civil Procedure Rules 2000,Belize- Rules of the Supreme Court 2005, The Bahamas- Rules of the Supreme Court 2003, Trinidad and Tobago(T&T)-Civil Proceedings Rules 1998, Barbados (Bar)- Supreme Court (Civil Procedure Rules) 2006. 20 Bar,25.1(c),OECS,25.1(c),Jam 25.1(e),T&T 25.1(c), Belize, 25.1(c), Bahamas order 31A,1.1 (e) 21 Order 31A rule 4 (a)

assisting the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute or any part of it.22 Under the new rules, timetables are set for the case management conference, i.e., it should not take place less than four weeks or more than eight weeks.23 The case management conference can be adjourned if the court is satisfied that the parties are attending or have arranged to attend a form of ADR procedure.
24

The court may also adjourn to enable negotiations

or the ADR process to continue. The courts also have a power to stay the proceedings in whole or part until a specified date or event, such as the continuation of the ADR procedure.25 However under the new rules, the court may impose sanctions by reason of a partys failure to comply with the courts orders, the sanction principally includes striking out the case or ordering a payment into the court.26 In the O.E.C.S, they have been a practical application of the new CPR through a court- connected mediation project, which provided for the referral of casemanaged civil actions filed in court.27 Under the Court-Connected Mediation Project the matter of the judge at the case management conference in accordance with the Practice Direction No. 2 of 2002 and pursuant to Part 25.1 (h) of the rules, may enter a referral order referring any case managed civil action filed in the court to mediation. The time for conducting the mediation session is within 30 days however the time may be extended. Rule 4 of the Practice Direction provides: Pursuant to the courts duty to actively manage cases the Master or Judge at the case managed civil action filed in the court to mediation. Parties will

22 23

Ibid Bar, 27.3,OECS 27.3,Jam,27.3,T&T 27.3, Belize 27.3 24 Ibid 25 Bar 26.1 (a),OECS 26.1 (f), Belize 26.1(e), Jam 26.1 26 OECS 26.7,T&T 26.3,Belize 26.7, The Bahamas order 31A r.24 27 Fiadjoe p. 132-133

not be allowed to opt out of the Referral order to mediation except by order of the Master or Judge Jamaica also has a court-connected mediation program by virtue of its Practice Direction28 and pursuant to its CPR. Its essential principles are modeled on the pilot project in St. Lucia and like St Lucia; the pilot was renewed and made permanent.29 In Trinidad and Tobago case management is implemented into the Family Proceedings Rules 1998.30 Rule 14.1 provides that the court shall further the overriding objective by the managing cases and includes: encouraging the parties to use the most appropriate form of dispute most appropriate form of dispute resolution including in particular mediation, if the court considers if appropriate and by facilitating the use of such procedures Additionally, power is expressly given by s.14.2 of the Mediation Act 2004, to judge or magistrate to refer parties to mediation by a certified mediator in any matter other than a criminal matter. The Family Proceedings Act 1998 also provides that a court (which includes a magistrate court) may refer a matter or any aspect of it to mediation. In Guyana, the Rules of Court have not been amended but they are in the process of reform. In the Report of the Planning Committee31 to explore all forms of ADR; the committee found that the present rules does not address the question of ADR and strongly supported the recommendation made by the former chancellor Kenneth George in his Drat Rules It provides: Part: 33:09

28 29

No. 2 of 2002 Ibid,p.138 30 Section. 5 31 Report of the Planning Committee to Explore All Forms of Alternative Dispute Resolution and to make Recommendations for Implementation.

In the event that the court or Judge deems it appropriate that a case management conference shall be held. Part: 33: 10 At a case management conference, the court or Judge shall; (e) encourage the parties to explore forms of alternative dispute resolution, including mediation and conciliation. (f) stay the proceedings for the stated period in order to enable the parties to explore forms of alternative resolution. The Planning Committee also, recommended that following the adoption of the Draft Rules, a suitable Practice Direction along the lines of that of the OECS. Although Guyana is in the process of reforming its Rules of Court, there is a Court-Connected ADR and Mediation programme ( hereinafter the programme) which introduces mediation and other ADR processes into the court system.32 The programme operates out of the Registry of the High Court, led by the Chancellor (Ag) and staffed by a coordinator/mediator who is a member of the court staff.33 In the absence of Rules of Court or a Practice Direction to establish timelines, schedules of mediation and time of completion are impacted solely by the availability of attorneys and mediators.34 The programme only provides for referrals to mediation and other ADR processes in the Supreme Court. Under the existing programme, the Chancellor (Ag) through a special sitting refers cases to the Mediation Centre and other judges also refer matters to the centre when parties have appeared before them.35 Requests are also made by attorneys for the matter
32

Donna Parchment, Assessment of the Court- Connected Alternative Dispute (ADR) and Mediation programme in Guyana. ( Prepared for the Guyana Democratic Consolidation and Conflict Resolution Project), August 2005 33 Ibid,p.5 34 Ibid,p.6 35 Ibid,p.7

to be sent to mediation. After a referral of the matter, the mediation coordinator sends a Notice of Referral to mediation to the parties to litigation along with the mediation roster, brochure for selection of a mediator and a date for mediation.36 It is respectfully submitted that the several states in Caricom have moved towards the introduction of new rules of court which introduces a system of court-annexed ADR by virtue of case management. While Guyana is still in the process of reform there has been a move to implement ADR into the courts by way of the court-connected ADR and Mediation programme. From introduction of these rules and programme on can submit that these states saw the need to move in this direction in order to futher the administration of justice .It also indicates that these states appreciate the role and importance of ADR in the access of justice. However the question which is left to addressed is; to what extend these rules and programme will assist in the speedy delivery of justice within the region.

Chapter 3

Court annexed ADR and the Speedy Delivery of Justice

This chapter is concerned with the extent to which court annexed ADR will assist in the speedy delivery of justice within the region.

36

Ibid

In the Caribbean jurisdictions today, there is high volume and complexity of litigation which have seen little or no increase in the number of judges and courts available to try matters.37 This challenges the ability of the regions justice system to deliver justice in a timely way. In Purefoods Corporation v Court of Appeal,38 the court was grieved over the fact that a simple case between the parties could have been resolved through mediation or conciliation during its infancy stage had the parties been earnest in expediting the disposal of this case. They opted, however to resort to full court proceedings and derived themselves the benefit of alternative dispute resolution, thus making the process arduous and long drawn. In the age of the CSME open markets and globalization, conflict will largely depend on the states ability to manage it.
39

Under the new CPR, the

objective inter alia is to see that once cases come into the system they are to move through and out quickly efficiently, economically and fairly 40. One of the arguments posed in favour of ADR is that it is a way to process cases earlier and quicker.41 Chief Justice Artemio V. Panaganiban is of the view that the significance of court annexed or court referred ADR mechanisms cannot be over emphasized in relation to the problem of delay in the delivery of quality justice.42 One must first to consider how court annex ADR will assist in the speedy delivery of justice. Firstly, in the litigation process there is a sense that being the first to blink may be taken as evidence of vulnerability and this can act as a constraint on settlement.
43

However an ADR order imposed by the court, rather than by

either side, can remove this constraint and free both parties to enter into
37 38

Sandra Minott-Phillips, op cit., p.1 US Supreme Court [GR 128069] second division 39 ECSC- Newsletter vol,5 No.7, July 2004,p. 7 40 Sandra Minott-Phillps, op cit, p.1 41 Ettie Ward, Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts : Panacea or Pandemic? 75 St Johns Law Review vol. 81:17 42 Address by Chief Justice Artemio V. Panganiban during the National Conference on CourtAnnexed Referred ADR Mechanisms on November 27,2007 43 Professor Hazel Genn, Court- Based ADR initiatives for Non- Family Civil Disputes :The Commercial Court and The Court of Appeal, 2002,pp.58-59

discussion and thus aid towards a quicker settlement.44 Another positive effect of a court-annexed ADR is that it gets the parties and their solicitors discussing the question of whether or not it would be desirable or effective to engage in some sort of ADR procedure.45 Once a proceeding has been issued, there may be a relatively lengthy period in which the parties retreat to conversion about the possibility of reaching settlement. An ADR may get the parties out of their bunkers.46 Therefore, requiring parties to consider ADR as early as possible can save time and money by improving the chances for an early mutually acceptable resolution. Secondly, it is submitted that where the parties voluntarily choose to go to ADR they may do so at their own speed. Brown and Marriot observes that there is no standard ideal time for mediation or other ADR processes as much depends on the circumstances of each case and the readiness of the parties to engage in the process.47 On the other hand, under court annex ADR the court can impose a time at which the ADR process is to be conducted.48 Thirdly, parties may unreasonably refuse to try ADR. Where this happens under a court annexed ADR system, the parties will be met with costs.49 It is submitted that a reluctance to pay unwanted cost may be a reason to drive the parties to try ADR. This has been viewed as making ADR compulsory, and has been met with critics. Lord Mackay who was not in favor of court annexed ADR because it entails second guessing the judge when acting in role as judge and as mediator.50 Also, it entails denying the litigant their right to the court.51 It is submitted that under court-connected ADR programme there is a roster which provides a list from which mediators can be selected
44 45

Ibid Ibid 46 Ibid 47 Brown and Marriott, op cit, p.406 48 See Eastern Supreme Court Rules,2000 ( First Schedule) rule 4 49 See . Dunnett v. Railtrack 50 Fiadjoe, op cit,p.33 51 Ibid

by the parties.52 Therefore there is no need for the judge to act in a double role. Moreover with respect to the litigants being deprived of their right to access the courts ,this argument may be struck down on the basis that the matter is already in the court system and if the matter remains unsettled after ADR the case may be refer back to trial. Additionally by referring cases to ADR fewer cases are left within the court system, that can be dealt with adequately and in a timely way. Also the court will have time to attend to cases in a positive way so as to impact the development of case law in a common law system based on precedent.53 There enhancing the Caribbean jurisprudence. Fourthly, Professor Fiadjoe is of the view that in order for the civil justice system to achieve speed there has to be a systematic change which reflects the following objectives: (a) to put the parties before the court on equal footing (b) to save or cut down on expense (c) to allocate court resources in proportion to the subject matter of the trial (d) to be expeditions (e) to be fair54 He further notes that in order to achieve these goals the current lawyer driven litigation management process must change to a system of a judge driven management process.55 Under the new CPR by introducing case management, the cases are placed firmly in the hands of the judge 56 who will
52

See. Donna Parchment, Assessment of the Court- Connected Alternative Dispute (ADR) and Mediation programme in Guyana. ( Prepared for the Guyana Democratic Consolidation and Conflict Resolution Project), August 2005
53 54 55 56

Ettie Ward, op cit,p.19 Fiadjoe, op cit.,p.32 Ibid Kodilinye, p.252

be tasked with meeting these objectives and thereby ascertaining speed in the administration of justice. Based on the foregoing reasons, it is submitted that the introduction of court annexed ADR will assist in the speedy delivery of justice within the region, by cutting cost, allowing the parties to partake in a process that is more suitable to their interest, one that will empower the parties and at the end of the day preserve the relation of the parties. Notwithstanding the aforementioned, one must turn to concern the extent to which court annexed ADR will assist in speedy delivery of justice. Sir Peter Middleton stated, The hope must be that case management involving the use of ADR will lead to a more efficient use of resources, thereby enabling disputes to be resolved more speedily57 Albeit, this may be the hope, they are several factors which may impact the extent to which this is achieved. Professor Kodilinye observes that the reform in the UK was made possible only by substantial input from the government. To establish a proper system of court annexed ADR requires a substantial degree of innovative administration. The government must be prepared to devote part of the expenditure on the court system to providing for the administration of court annexed ADR. However this factor will not necessarily be present in the Caribbean which would remain affected by the lack of resources and by cultural and professional constraints. This, pose to be a hurdle to the degree in which court annexed ADR may assist in the justice system. It must be recognized that ADR is not a panacea, so that albeit it may assist to accelerate justice, it may at times cause an extra delay, i.e., where the parties failed to arrive at a settlement. The reason for this may be that not
57

all cases are appropriate for ADR. Some civil disputes will always proceed to trial, e.g. because of an overwhelming desire on the part of one of the party for vindication, for public administration of grievance, because of a need for judicial determination that establishes an enforceable precedent. Thus judges are tasked with ensuring that the cases referred to ADR are suited for the process. Their ability to do so will depend on their overall; knowledge and training of ADR. It is submitted that this will contribute to the extent to which the system of court annexed ADR will assist in the delivery of justice. Also the training of mediators and arbitrators would be significant Moreover it has been suggested that the timing of a direction or encouragement of ADR is crucial to success. Cases may be pushed toward ADR too early in the life of a dispute or too late to confer any benefit in cost or time saving. Therefore, the timing of a direction may pose crucial to the extent to which speedy justice is delivered. In addition Chief Justice Peter Underwood opines that the down side to quicker settlement is that there is a risk that the the dispute may be resolved on the basis of inadequate facts. It has been said that; Inexpensive , expeditious and informal adjunct is not always synonymous with fair and just. It is submitted that there needs to be a balance between fairness and speed. Since the aim should not be for quicker settlement but for quicker justice. The extent to which we in the region will be able to strike a balance will determine the degree in which the speedy delivery of justice is achieved. A RAND Report which evaluated the court annexed ADR programs in six district courts found that there was no strong statistical evidence these programs significantly affected time to the disposition, litigants cost or attorney view of fairness or satisfaction with case management. In the Caribbean region it is too early to come to any meaningful as to the success

or otherwise of the new CPR regime. But with the right kind of judicial activism in the system of court annexed ADR there can be earlier agreement by improving litigant and lawyer confidence in the system. Professor Fiadjoe has outlined several critical issues which when looking at court annexed ADR the developing region must consider such as, (a) How are the financial and human resource implications of ADR addressed? (b) How should the quality of justice be measured? (c) What processes are appropriate for settling cases? (d) How the quality of justice is to be measured? It is submitted that the states ability to address the factors outlined above and the issues outlined by Professor Fiadjoe will impact the extent to which court annexed ADR will assist in the speedy delivery of justice within the region.

Conclusion
It is submitted that the introduction of a system of court annexed ADR shows that the Caricom region is moving in a direction of fewer trials, more settlement, and more economical use of judicial time and more certainty for litigants. All in all it ensures that litigants receive quicker justice. It is left for us to fully utilize the system in the ways it was intended so as to enhance the overall justice of the region. The extent to which this can be done will be determined by our ability to address the issues and concerns such as lack of resources, education and training and those other factors set out in chapter 3.