TODAY I CONTINUE to reproduce extracts from my lecture to the Alternative Dispute Resolution Association of Barbados on the topic The Case For The Introduction Of Mediation As A Means Of Resolving Disputes In Family Law Matters In Barbados.
Not all family disputes are appropriate for mediation. Typically, those matters that are fit for compromise will generally be of a nature that mediation can be successful. Therefore in Australia, dispute resolution procedures are not required in these situations:
(a) for a parenting case if it involves allegations of child abuse or family violence, or the risk of child abuse or family violence;
(b) for a property case if the case involves allegations of family violence, or the risk of family violence or fraud;
(c) the application is urgent;
(d) the applicant would be unduly prejudiced;
(e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case;
(f) the case is an application for divorce;
(g) the case is a child support application or appeal.
In England the most recent legal change with respect to family law mediation is that any person who is considering applying for an order about their children or finances must attend a family mediation information and assessment meeting.
Therefore, unless exemptions (such as cases of domestic abuse) apply, there is compulsory consideration of mediation of family disputes prior to the initiation of court proceedings.
While delivering the lecture to the ADR Association of Barbados in October 2011, Justice Adrian Saunders mentioned that in 2010, 1 760 civil cases were filed in the High Court of Barbados and 462 divorce applications. I thought it useful to obtain comparative information for the completed years since then.
The figures show that in 2011, the number of civil cases rose to 2 132; in 2012 it went to 2 273; and in 2013 the figure stood at 2 225. In respect of divorces they were 452 filed in 2011, 472 in 2012 and 459 in 2013. To add to the divorce applications, 212 other family cases were filed in 2010. This number decreased to 145 in 2011 and 115 and 111 in 2012 and 2013, respectively.
Justice Saunders, recognising the significant number of cases filed, commented: “In all these circumstances, there must perforce be backlog. And without innovative solutions there inevitably will ensue backlog built upon past backlog.”
He then suggested that the solution to the problem resided in innovation. For him, innovation included aggressive case management and, of course, mediation.
He mentioned the establishment of court-connected mediation in St Lucia and the fact of having 70 per cent of the completed mediations in various civil matters result in full settlement of the dispute.
In 2013, Sir David Simmons, while delivering the lecture for Conflict Resolution Day, mentioned similar rates of success in the Family Court in Trinidad and Tobago.
Additionally, I believe the success of mediation in Jamaica, where it is mandatory for people to seek mediation prior to instituting proceedings in the courts in most cases, is well known.
In Barbados, as you are aware, the new Civil Procedure Rules do not apply to family matters and there is no provision for mediation in the legislative scheme that governs family law. It will, therefore, be necessary to introduce legislation to provide for mediation. There are so many precedents available that this ought not to be a difficult exercise.
One way of introducing mediation is to amend the Family Law Act and rules to make provision for mediation, and to grant the judges case management powers similar to those for civil matters.
However, I prefer the option of enacting a Mediation Act along the lines of the Mediation Act 2004, of Trinidad and Tobago. The act would regulate the practice of mediation. It would set up a board which would, among other things:
• formulate standards for accreditation of mediation training programmes;
• prescribe requirements to be complied with by approved mediation agencies and mediators; and
• monitor accredited mediation training programmes.
The act would prescribe a code of ethics which would deal with matters such as confidentiality and impartiality as it relates to mediation.
I also would recommend a provision for court-annexed mediation along the lines of Section 14 of the Mediation Act 2004, which allows the court (which is defined to include the Court of Appeal, High Court or Magistrates’ Court) to refer matters to mediation.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]
