Alternative Methods of Dispute

Resolution

This term refers to dispute resolution processes that fall outside regular judicial processes. These
procedures are used as a replacement to court procedures. Arbitration, mediation and negotiation are
three of the alternatives and are used where two parties in a dispute attempt to reach consensus outside
of the court environment. Under these processes, parties are not bound by rigid rules but are guided by
principles of appropriate conduct. The use of arbitration and negotiation is almost exclusive to labour
law matters. In the Treaty of Chaguaramas, there is a mechanism for arbitration in commercial disputes.

Mediation
A neutral, third party is involved to help disputing parties come to a mutually agreeable resolution.
Mediators encourage the exchange of information and encourage the exploration of creative solutions.
It is a flexible process and therefore cannot be easily defined. However, it can be broadly defined as an
area in which a neutral third party assists disputing parties with finding a solution. Given the nature of
mediation, no two mediations progress in the same way.

Characteristics of Mediation

The benefits of this process are, more often than not, unavailable in the traditional methods of
dispute resolution.

▪​ It is informal and very flexible.

▪​ It is timely and saves money.

▪​ It allows a great degree of privacy and those who are uncomfortable with discussing personal

matters in a court room tend to prefer this option. In addition, the restrictions in terms of what
you are allowed to say in a court room, do not apply under mediation.
 ▪​ Mediation allows the expression and release of emotions.

▪​ Under normal judicial processes, a third party makes the decisions for the parties involved in the

conflict. In mediation, the decision is made by parties themselves and therefore they are more
likely to follow through with the agreement reached.

▪​ Adjudicatory processes are generally in favour of one party. Mediation allows parties to come to

conclusions from which both can benefit.

The Stages of Mediation

The process of mediation has several stages some of which are optional. Also note that some stages may
overlap.

1)​ Preliminary Arrangements- mediation is suggested, a mediator is selected, parties expected to

attend are determined and parameters are also set.
2)​ Mediator’s Introduction- there is the introduction of participants, the description of the
mediation process, the discussion of ground rules, housekeeping matters, goals and objectives
and the outlining of any legal issues.
3)​ Opening Remarks- an uninterrupted presentation of each party’s views on the dispute. The
mediator is able to see how each views each other.
4)​ Venting
5)​ Information Gathering- the mediator and parties inquire about each other. The mediator
attempts to identify the exact issues.
6)​ Issue and Interest Identification- mediators use neutral language so that it is acceptable for both
parties. The mediator meets privately with each party (caucus/ private session). The style of
mediation, local practice and custom and applicable law will influence how information is
gathered and how it will be shared. There will also be the generation of ideas on how the
dispute can be settled.
7)​ Agenda Setting (optional)
8)​ Caucus (optional)
9)​ Option Generation
 10)​Reality Testing (optional) –testing of the waters to determine potential outcomes.
11)​Bargaining and Negotiating- the mediator assists in achieving tradeoffs
12)​Agreement- A complete agreement will be formulated based in what is determined in the
previous stage.
13)​Closure

The Role of the Mediator

The role of the mediator can be quite complex. It is not rigid and therefore requires the party acting in
this capacity to have many skills and capabilities. Some common roles of the mediator are:

▪​ Organizer- managing interactions between disputants, meeting times, the nature of information

to be shared, who should attend

▪​ Communication Director- guides how information is exchanged and remarks are made in order

to reduce the likelihood of misunderstandings which can aggravate the problem. The mediator
also acts as a translator/interpreter and this tends to be necessary when the parties are from
different backgrounds

▪​ Intervenor and Guide- This is important where there is stalemate. The mediator will diagnose

the problem in an effort to get things under control again. The mediator sets the tone for the
discussion and addresses unrealistic expectations.

▪​ Encourager of Settlement- a mediator must guide parties toward settlement but must not

coerce.

▪​ Listener- This is one of the most important roles as this helps to identify underlying problems

and also helps to influence the approach and behaviour of disputants.

▪​ The mediator also acts as a referee, teacher and coach.

Purpose of Mediation

▪​ To assist parties in reaching an agreement

 ▪​ As a means of saving time. It is an expeditious process rather than the lengthy court

room process.

▪​ A means of finding unique and creative ways to solve problems

▪​ To repair relationships

The approach of the mediator is generally based on how he views the process, his initial training and his
personality. Mediation is generally ideal for situations where there are ongoing relationships e.g family
issues. The process of mediation is so unique that even where disputes are similar, outcomes will vary.

Given the nature of mediation, impartiality and neutrality need to be exercised. The idea is that no one
party should be favoured and this notion is an integral part of the code of ethics for mediators. In order
to ensure neutrality, each party must be given equal opportunity to be heard. It is not always easy to
maintain such notions since an attempt to rectify an imbalance of power can appear to be bias.

If the mediator had a prior relationship with one of the parties involved, ethical guidelines dictate that
this be disclosed even if he believes that it will not affect how he handles the situation.

The goal of mediation is to have a solution which belongs to the parties and therefore the process must
be approached with care and with skill.

One presumes that mediation should be a confidential process but this is not absolute. The importance
of confidentiality lies in the fact that this will encourage persons to disclose more which can lead to more
efficient resolutions. Confidentiality is an important area in that it provides a level of comfort so that the
participants will be willing to share information but on the contrary this may need to be breached if the
courts need to intervene.

Advantages of Mediation

▪​ Everyone wins

▪​ Improves Communication

▪​ Confidential
 ▪​ Fosters Co-operation

Disadvantages of Mediation

▪​ Decisions are not binding

▪​ Attorneys might still be involved and this can increase costs

▪​ Depends heavily on the skills of the mediator

Arbitration
This is a process by which the parties are bound to the conclusion/determination of a neutral third party.
Arbitration comes in different forms- contractual, court-annexed/ court-ordered and labour.

▪​ Contractual Arbitration: The disputants agree by contract to settle disputes by arbitration.

▪​ Court- Annexed Arbitration: follows the same procedures as a civil case.

▪​ Labour Arbitration: these take place in the context of collective bargaining agreements.

Arbitration is similar to adjudication. It is adversarial in nature and information is presented with the
intention to prove one side right and the other wrong. A decision is made based on the merits of the
case. Essentially, the parties are assumed to be working against each other and not co-operatively as in
mediation. An arbitrator’s decision generally cannot be appealed.
Arbitration is a flexible process and every aspect of the process can be negotiated e.g who will hear the
case, whether attorneys will be present , the number of arbitrators etc. Parties can and do select
arbitrators who are not lawyers. Like mediation, the process can be adjusted to suit each dispute and it
is confidential, however, there is a somewhat predictable structure.

Stages

1)​ A recitation of ground rules

2)​ Each party’s opening statements
3)​ Presentation of witnesses and other evidence
4)​ The arbitrator asks questions to clarify evidence
5)​ Closing statements heard by the arbitrator

NB Arbitrators allow the submission of post hearing briefs which summarise each party’s main
arguments. Also, contractual arbitration is voluntary and confidential like mediation. The proceedings of
it cannot be used as evidence in subsequent trials.

Although arbitration is an alternative to litigation, it must still exist within the legal framework. Issues
therefore include the extent to which the state can regulate the process and which claims can be
governed by it.

The process is widely used for business disputes and employment disputes. In light of increasing
globalized markets , arbitration plays an important role, especially as it relates to the speed of the
process. The process can however, be used for any kind of dispute especially those where a relationship
exists and will be continued thereafter. Since decisions are difficult to appeal, arbitration brings closure
and finality to the conflict.

An arbitration clause can be drafted and formulated either before or after a dispute arises. Parties might
anticipate the disputes which can arise based on the nature of the agreement and formulate these
clauses accordingly. In fact, based on the nature of the dispute, a combination of methods may be used.

Arbitrator Selection
Parties to a dispute and arbitration will include in the their arbitration clause either the name of the
person who will guide the process or a method for selecting the person if a dispute arises. In addition,
parties can also determine how the process will progress. The complexity of the issue will determine
how all of this is tackled.

How Arbitration Works

While litigation and arbitration are both binding, arbitration lends to more creativity. A court can only
award damages or issue an injunction but with arbitration an employee can be reinstated and still
awarded damages, can be given a promotion etc (these are things which a court cannot dictate).

A court might refuse to enforce the terms of agreement of arbitration proceedings where they are seen
as one-sided. This brings into the equation ideas of unconscionability. Procedural unconscionability
refers to when a decision is presented on a take it or leave it basis and this is common in contracts
pertaining to employment. Substantive unconscionability speaks to contracts which are oppressive,
harsh or biased. Courts use this doctrine to prevent abuse of the procedure. Examples of ctions which
are not favoured include:

▪​ Consumers/employees paying large sums for arbitration

▪​ Having particular plaintiffs pay fees if it would not be required under court proceedings

▪​ Prohibition of class action arbitration/ lawsuits

Courts view a contract to arbitrate as they would any other and therefore defences such as duress, fraud
and illegality are available.

Arbitrator Ethics

An increasing number of disputes go to arbitration and as a result more emphasis is being placed on
ethical obligations.
 ▪​ To ensure lack of bias, an arbitrator must disclose any relationships which he has with the parties

whether social, professional or financial after which it will be determined if a new arbitrator will
be selected. An obligation to disclose conflict of interest continues throughout the process.

▪​ Arbitrators should refrain from ex-parte communications

▪​ The process should be conducted in a fair manner and attention should be paid to any biases

▪​ Other obligations which exist speak to fair costs for low income parties, confidentiality, fairness

and quality of service.

Arbitral Awards

A copy of the award is to be taken to the court to be entered into official records after which if the losing
party does not comply the court can enforce the award in the same manner as judicial awards. The
awards may be modified if there is miscalculation, if the arbitrator decides that an issue not submitted
affects the merit of the award or if justice is to be promoted between the parties.

Compulsory Arbitration in the Region

This mechanism was first introduced in the region by Trinidad and Tobago in 1965 in an effort to control
industrial conflict and strikes. By statute, parties were forced to arbitrate and to postpone strike action
for a specific amount of time. Under common law however, there was more of a voluntary approach to
arbitration. Section 60 of the Industrial Relations Act 1972 (Trinidad and Tobago) prohibits strikes unless
a report had been made to the minister and the statutory time allowed for conciliation has passed. In
Jamaica and Dominica, the relevant Minister has a discretion to employ compulsory arbitration in certain
kinds of disputes.