The restarting of night (evening) court sittings on Monday to deal with the backlog of cases in the magistrates’ division is welcome news as it means that the dispensing of justice will be speeded up. However, some of the cases presented for hearing on Monday—and as a matter of fact, many that are heard on a daily basis—point to a need for the use of Alternative Dispute Resolution (ADR), a recourse legally available since 2010, at the stage of the magistracy. While the night court is useful and certainly a good initiative, magistrates being bogged down by cases involving quarreling neighbours, for example, is not a good use of our legal resources.
But for this to happen, the resort to ADR would need to be highly publicized. In addition, there would be need for training perhaps at the level of police prosecutors to enable them to recognise the cases that could benefit from ADR. Volunteer mediators to hear the parties’ arguments would also be necessary.
Guyana passed the Alternative Dispute Resolution Bill in 2010 and it was assented to by the then President Bharrat Jagdeo that same year. The reason for its enactment was to formally and legally provide for the mediation of disputes as an alternative to litigation. Guyana was then and still is today a very litigious society.
Training in mediation, which is one of the pillars of ADR, of both legal and non-legal professionals, was facilitated by the United States Agency for International Development (USAID/ Guyana) through its Governance Enhancement Project.
Prior to ADR legislation, a Mediation Centre was established in the compound of the High Court in Georgetown, with funding provided by USAID. From October 2003 to sometime in 2014, close to 700 cases were referred to the centre from the court system. At the end of 2012, according to statistics available online 150 cases had been successfully completed.
In June 2008, a group of professionals set up the Mediation Institute of Guyana, a non-governmental organisation. According to its website, in 2010, when the institute held its first annual general meeting, several top local professionals were named on its Board of Directors. The next year, Attorney Jamela Ali was elected president and she was reelected the next year before passing the baton to Ms Pamela Nauth in 2013.
After this date the website was not updated and Ms Nauth is currently employed with the Ministry of Social Cohesion. Of course this does not necessarily mean that the institute ceased to exist, but it has certainly fallen off the radar.
As far as this column is aware, although ADR was touted as necessary and legislation was enacted to provide for it, there was no formal government funding for the process. In fact, according to the ADR Act, the costs of the mediation is to be borne by the parties seeking same, according to agreed proportions. This would have been equated to those parties hiring legal counsel, which is unnecessary with ADR.
In addition, in 2014, Berbice finally got its own Mediation Centre, which was built in the High Court compound in New Amsterdam; $25 million had been earmarked for its construction in the 2012 national budget. In 2015, the then Attorney General Anil Nandlall had announced plans to establish a similar centre in Essequibo. This is notwithstanding the fact that despite Georgetown having a centre in place since 2003, the backlog of court cases remained high. In addition, from the statistics reviewed, the Georgetown centre was collecting its own backlog: of nearly 700 cases referred over nine years only 150 had been completed.
Is it that ADR is not working? Or is that it is not being utilized as it should? This is clearly an area that needs addressing, especially since millions of dollars have been spent on mediation training, building centres and enacting legislation. Certainly, the cases that have been successfully completed should be examined as best practices and those involved in mediation should try to model those as much as possible.
All that being said however, the possibility of mediation at the level of the magistrates’ courts should be given due consideration. News this week that Child Care and Protection Services Officers are undergoing mediation training is most welcome as this is an area where it is clearly needed. However, care must be taken wherever possible to use the resources already available rather than reinventing the wheel.
