Mediation in Caribbean justice

By Abiola Inniss, LLB, LLM, ACIArb


The use of alternative dispute resolution in the Caribbean is as yet in a fledgling state and there is little information about it in most parts of the region, except for Jamaica, which has a considerably developed ADR scheme that focuses on mediation, and there is substantial ignorance about what constitutes alternative dispute resolution.

While Jamaica’s dispute resolution foundation has made significant strides in the promotion of peace and reconciliation in various communities, as well as in providing useful support to its justice system, the example has not resounded strongly across the region. Caribbean justice systems and seekers of justice remain strongly entrenched in the adversarial, combative methods of resolving matters, even with all the attendant difficulties and disappointments which often accompany litigation.

It needs to be clear that ADR usually applies to civil matters (person to person non-criminal claims) and that, where ADR is applied in the criminal jurisdiction, it is known as restorative justice and remains distinct from the other ADR methods, comprising conciliation, negotiation, mediation, and arbitration. In selecting mediation for particular attention in the discussion of Caribbean justice, it is intended that this form of dispute settlement might be considered within the context of the issues that trouble the region at community levels within CARICOM countries and their impact on the justice system.

A cinematic view of community life in any Caribbean nation would reveal a culture that contains a mixture of stereotypes, prejudices, superstitions and beliefs, which often compound the issues of what justice is and what is expected of it in the mind of the average citizen.

For example, it is common perception that a woman’s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home; however, if she is violated in any way while outside her home, perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home (see Caribbean legal educator, Hazel Thompson Ahye - ‘Women and Family Law and Related Issues’ for further discussion).

This idea, among others, has extended from the grassroot levels to the halls of justice, with consequences ranging from the interesting to the appalling.

Mediation comes into the justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid.

It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards.

The obvious advantage is that there is a lesser burden on the courts to deal with petty matters that often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner.

The overall benefit to the system of justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for governments to find other means of addressing the resolution of disputes.

In the United Kingdom, the government announced proposals to close 54 county courts and 103 magistrates courts in order to save some 15.3 million pounds sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying, “Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.”

Lord Woolf FCIArb, the architect of the major reform of the UK justice system, which led to new civil procedure rules in 1998, is also quoted as saying, “The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.”

In the Caribbean, Guyana recently passed the Mediation Bill, which among other things makes the use of court-connected mediation mandatory for some kinds of disputes. Experience has taught, however, that it sometimes requires more than the passing of legislation to create a new cultural norm. The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade, 410 U.S. 113 (1973) points out this idiosyncrasy.

There needs to be region-wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities. Citizens need to see and feel the benefits for themselves in order to promote a culture of mediation, negotiation and conciliation Arbitration is hardly a community based option since it is more suitable for business arrangements and industrial and commercial disputes.

The concept and use of mediation in Caribbean justice requires far more effort and application than is currently exerted. Certainly it is to be hoped that Caribbean leaders in the legal field and in government will not wait for the gates of perdition to be opened upon our society before embracing alternative dispute resolution.

November 29, 2010

caribbeannewsnow

Bahamas Blog International

Caricom in 'changing' Cuba

ANALYSIS

RICKEY SINGH





A communiqué was expected to be issued yesterday on the Third Caribbean Community-Cuba Ministerial Meeting that concluded in Havana on Friday.

It was expected to offer an explanation on future Caricom-Cuba co-operation and initiatives in economic and political co-ordination with Latin America in the context of new economic and political alliances and arrangements in response to international developments.

The two-day meeting occurred in the significantly changing Cuban environment compared to that of 1972, when four Caricom countries had played a vital role in helping to bring the then Fidel Castro-led revolutionary Government out of the diplomatic cold in a display of courageous defiance of the United States of America.

At that time, Jamaica, Barbados, Guyana and Trinidad and Tobago chose to break Washington's crude isolationist policy against that small Caribbean nation with their unprecedented joint establishment of diplomatic relations with Havana.

The legendary Fidel Castro along with the administration he led for some half-a-century, before serious illness compelled him to hand over government leadership to younger brother Raoul Castro four years ago, has never failed to show his deep appreciation for that pace-setting diplomatic initiative by the quartet of Caricom states.

Caricom ministers who participated in the Havana meeting were expected to learn at first-hand why Cuba -- the only country to suffer from the longest and most punitive embargo enforced by the USA -- is now in the process of implementing serious adjustments to its economic model from total State control, based on socialist transformation, to embrace a widening experiment in private sector operations.

The announcement earlier in the week by President Raoul Castro that some half-a-million State workers are to be facilitated in new employment, mostly in a gradually expanding private sector — including tourism and construction industries — had followed a controversial interview by elder brother Fidel with an American journalist, Jeffrey Goldberg, published in The Atlantic magazine.

The "misinterpretation"


Castro lost no time in telling the media at the launch of his latest book that he was "misinterpreted on the economy" by Goldberg when he reported him as saying that "the economic model no longer works for us".

But the Cuban leader refrained from any criticisms of Goldberg, remarking that he would "await with interest" the journalist's promised "extensive article" to be published in The Atlantic.

Those in the US Congress and mainstream media, known for their anxieties to ridicule Cuba's economic model and governance system, can be expected to join in political jeerings.

Of course, they would have no interest in considering, for instance, that after 50 years of admirable struggles to survive the onslaughts of successive administrations in Washington, with their suffocating blockade as a core feature, Cuba does not have to apologise for tough, pragmatic decisions on adjustments to its economic model; not in this closing first decade of the 21st century — long after the disappearance of the once powerful superpower, the Union of Soviet Socialist Republics, and not after the collapse of Wall Street, America's traditionally flaunted economic model of capitalism.

Indeed, the 'Wall Street crash' was a development that spawned the prevailing global economic and financial crisis still seriously impacting today on economies the world over.

Work force


Initially, as explained in Havana, the alternative employment programme will affect half-a-million of the five million-strong Cuban work force, with another half-million to follow over a phased period with State assistance in various private sector businesses.

This, according to reports out of Havana, is not an overnight development. The adjustments, linked to reassessments of policies and programmes over the past two years, are being made all the more necessary by the global crisis that has affected so many poor and developing nations.

Incidentally, as readers would know, none of the economically affected nations have had to contend with a 50-year-long spiteful blockade by Uncle Sam.

Yet, for all its domestic challenges, the Cuban Government continues to reach out, in offering assistance, though not as previously extensive, to countries in the Caribbean and other regions in various areas, including health, agriculture and construction.

The United Nations has long recognised the remarkable achievements of Cuba in health and education. And just last week, while President Raoul Castro was speaking about redeployment of sections of the labour force, Inter-Press Service was reporting on Cuba's success in making available in the world VA-MENGOCO-BC, the only vaccine against meningitis-B. This medication has been included, since 1991, in Cuba's national infant immunisation programme and is used successfully in South and Central America.

As we await the outcome of last week's Third Cuba-Caricom Ministerial Meeting, it is of relevance to recall here what Professor Norman Girvan noted when he accepted in 2009 an Honorary Doctor of Economic Sciences degree from the University of Havana.

In recalling the debt of gratitude owed to the people of that Caribbean island state by so many in the poor and developing world, Girvan, a former secretary general of the Association of Caribbean States, observed:

"The Cuban revolution has been a source of inspiration on the ability of a small Caribbean country to chart its own course of social justice, economic transformation and national independence by relying on the mobilisation of the entire population; on the will and energy of its people; and for its numerous actions of intensive international solidarity... The debt is unpayable."

September 19, 2010

jamaicaobserver

Bahamas Blog International

Regionalism: The Caribbean prospective - Part 4

By D. Markie Spring
Turks and Caicos Islands:


Idyllic and liberating are the ways I’d describe every Caribbean nation that has gained its independence from European rule and governance. Hitherto, it has been twenty-five years since the last Caribbean nation disassociated itself from Britain.

However, some countries continued to be dependent upon Europe -- Britain, Netherlands and France -- with little political progress; hence, I recommend regionalism through political efforts.

In the Caribbean we differ extensively within the political arena. This is evident through the failed West Indies Federation, which was established in 1958 and ended in 1962.

There are too many disparities amongst our nations; ranging from the bashment between the governments of St Vincent and the Grenadines and Barbados over the drug trade between the two nations.

Also, most dependent territories, with the exception of Montserrat, view citizens of the other Caribbean islands as less fortunate. The same can be said about the Bahamas, Antigua and Barbuda, and Barbados to a lesser extent. Other political challenges exist.

Conversely, Cuba maintained a Communist regime for more than forty years. Recently, the former president handed over power to his brother Raul Castro; politics in this corner of the region has become a family business. The Cuban Communist regime must realize that communism and socialism have failed in every government that has adopted these political nightmares.

Similarly, Haiti’s political environment has been contentious with a long history of oppression administered by dictators -- Francois Duvalier and then his son Jean-Claude Duvalier.

Arguably, conscientious and considerate are true descriptions of the way Barbados’ governments have perpetrated their governance of that nation. The governments there have always worked for the citizens and strived to industrialize the country; thereby, producing political stability at home. It is also true that Barbados has its own political disputes and rivalries, but not as devastating as other Caribbean islands.

In the meanwhile, some scholars and citizens alike argued for and against regionalizing the political arenas of the Caribbean. Those against argued that the region has diverse political structures ranging from a Communist regime to a Westminster-style parliamentary system. Those who support regionalism argued that these dissensions are superficial and only subvert commonalities, which exist amongst states.

It is time for us to benchmark other nations that have fully integrated their political system and learn from their progress.

Ideally, the European Union (EU) has instituted the European Council, which has often being describe as the “Supreme political authority,” has political roles in the negotiating changes in treaty and demarcates the policy agenda and strategies of the EU.

The United States, although somewhat different has sub-regions, which they called states and each state has it own government; yet constituted and regulated by the federal government.

In the US, there are Californians, Texans and New Yorkers; yet they are all Americans; In Europe there are the British, Romanians, and Germans; collectively, they are Europeans. In the region, we maintain our nationalities whether St Vincentians, Barbadians or Trinidadians, but as a regional unit we are West Indians.

It is time for politicians across the region to stop focusing exuberantly on self; rather they should discuss the issues affecting the region. Additionally, lack of interest and support from major states has crippled regionalism, coupled with the exclusion of the Dominican Republic and Haiti as members.

However, proponents of regionalism suggests that there are many benefits derived from strengthening the region’s governing bodies and political powers; creating efficiencies of scale and encouraging decentralization, amongst other benefits.

In Cuba’s case, I am not trying to hand down my political ideologies or those existing in the wider Caribbean; rather I am seeking to educate and solicit support from them to join the rest of the region in their quest for oneness through democracy. I realize that some scholars may disagree; however, there is real evidence that regionalism works.

August 18, 2010

Regionalism: The Caribbean prospective - Part 3

caribbeannewsnow

Bahamas Blog International