Chief judge explains ‘other’ ways of solving disputes |01 September 2012
Arbitration
Arbitration is permitted both under the Seychelles Code of Civil Procedure as well as the Commercial Code of Seychelles.
Arbitration is grounded in contract. Parties to a contract agree at the time of making the contract or after that any dispute or a class of dispute that may arise during the performance of the contract shall be settled by arbitration. That is the decision of a third party chosen by parties or appointed in accordance with the agreement or law who hears the parties and renders a binding decision. An arbitration clause may amount to waiver of the parties’ right to proceed to a court of law with that dispute except for enforcement of the arbitral award, which when filed in, and confirmed by the court, may be enforced as a judgment of the court.
Negotiation
Negotiation involves the parties and their counsel agreeing to resolve the dispute between the parties at different stages of the dispute, before and after the filing of the dispute in the courts. This is one area of alternative dispute resolution members of the bar would be well advised to consider in advising their clients. There are a substantial number of matters that are filed in the courts, which of course cannot be settled by negotiation, for different reasons. But there are a large number of cases that could be settled by negotiation. One of the purposes of a letter notifying the other side that you intend to file an action in court within a certain number of days is to set in motion the process of negotiation, where possible. I feel that counsel and parties have not paid enough attention to this method of resolving disputes. There are considerable benefits to counsel, the litigants, and of course the court system. The savings in costs and time would be considerable. Conversely, the cost of not negotiating in appropriate cases is considerable. This is not only to the parties or at least one of the parties, and the courts, but also to counsel in the case. Counsel is probably diverted from paying attention to other business. The un-disposed of business, or work in progress, assumes a distorted position in the business of the firm.
Mediation
Mediation is a method of resolving a dispute where a third party helps the parties to agree to settle their dispute. The third party does not impose a solution. He or she does not impose his or her own views on the parties. The parties must be willing to let the third party assist in this regard. Mediation offers some promise in Seychelles.
Rent a Judge
Rent a Judge is exactly what it says. The parties with a dispute agree to rent, mainly a retired judge, to hear their dispute outside the court system. In California, USA, this is common practice. Legislation has allowed judgments in such cases to be enforced in the ordinary way. You do not have to wait long in the queue. Just rent a judge in cases where it is appropriate. This is very akin to Arbitration.
Talking more about mediation, Mr Egonda-Ntende said the method has taken root in Seychelles as in many other jurisdictions both in the region and outside the region.
“Both the members of the bar and the bench may help in this area. On the commercial list we are trying to encourage counsel and the parties to make use of the possibilities offered by this method.
“I wish to say that my very short experience in Seychelles – three years now – makes me hopeful that it may be possible to take more steps in this area. This will depend on a number of factors. Members of the bar must appreciate and support this development.
“On our part, in the judiciary, we have started to train your judges in this and other areas so as to increase their effectiveness and efficiency. I would like to call upon the Bar Association of Seychelles to consider training their members in mediation techniques. I am prepared to support such endeavour in different ways including obtaining faculty for such programmes. It is not only judges who can act as mediators. Many years ago I met an attorney in Reno, Nevada, USA who was starting a practice in mediation. Two years later I met him again in Reno. He told me that his practice was extremely successful.”
The chief judge also talked about neutral case evaluation which involves the parties to a dispute agreeing to seek the opinion of a third party, usually an expert in the area of the dispute. The third party neutral will evaluate the dispute for the parties. Upon that evaluation the parties will be able to make a decision.
May help clear backlog
He said there already are judges and magistrates trained as mediators.
“It is possible to start with a mediation week every term or a mediation day every month whereby counsel and their parties are summoned to the court for mediation in respect of cases which are now in backlog and are thought to be amenable to mediation by the trial judge or the parties and their counsel. This may be a special exercise targeting the backlog.
“At the same time rules would be promulgated that apply mediation to the current caseload. One of the issues that I wish to leave with you for your consideration is whether reference to mediation should be mandatory or optional at the instance of either a party or judge assigned to the matter. Many jurisdictions have opted for the mandatory referral which appears a contradiction in terms given the voluntary nature of mediation. In essence there is really no contradiction. Mediation itself continues to be voluntary in terms of the exercise itself. It is the pre mediation process that compels a party to submit to it. Mandatory reference has its drawbacks as well as advantages. The percentage of successful mediations as against referrals is lower than where referrals are optional.
“On the other hand optional reference at the instance of either one of the parties or the court on its own motion in appropriate cases may attract much fewer cases to mediation but past experience suggests that it yields greater success in terms of successful mediation in relation to the number of referred cases.
“In a situation where you have a significant case backlog it might nevertheless be worthwhile to apply mandatory referral and effort is made to mediate as many of the backlog cases as possible. I leave it to you to advise as to what would be appropriate for Seychelles.
“I propose that a deadline be agreed upon when we would be able to put in effect what will be agreed upon in this Symposium. October 31, 2012 may be appropriate,” he told the delegates, who nearly unanimously endorsed the method, which the courts will put in place soon.