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Archive -Seychelles

Senior US Judge, Dr Gordon Low, advocates mediation: |01 March 2014

‘Mediation is the future of the legal system’

In Seychelles, mediation has never been a common legal form of conflict resolution even though traditionally disputes have been solved through the intervention of family members, friends or any strong personality enjoying some influence over the opposing parties.
 
Although we talk of Seychelles as a harmonious and united society, it seems that generally a Seychellois will rarely hesitate to expensively hire a lawyer and take his neighbour, work or business partner or even a member of the same family to court over a dispute that could otherwise be resolved through dialogue.

In many other countries, mediation which has been proved to have an 85% success rate has within the past 20 years become a common way to access legal issues. In the United States for example, some courts now do not resolve to the traditional system of law but to mediation. Moreover, mediation decreases the expenses needed to resolve legal matters, may it be in terms of infrastructure, human or financial resources and time.

A three-day trial needing a judge, lawyers and court personnel can simply be replaced by a three- hour mediation done by a single trained mediator.

Chief Justice Fredrick Egonda-Ntende has commented that one of the first things that struck him when he took office is that although the law makes provision for mediation, for example in the case of labour disputes, it was clear that the method was underutilised as a tool of conflict resolution. Since, the Chief Justice has made mediation one of his battle horses, not only in an attempt to eliminate the heavy backlog of cases in the Seychelles’ courts, but also as a modern and efficient means of delivering justice.

Last year, the Supreme Court organised a symposium in order to educate lawmakers, judges, prosecutors, lawyers and the general public on the matter. This has been followed by the promulgation of the relevant rules, and the Judiciary has announced that it is now in the stage of implementation.

In order to further increase awareness on mediation, an American expert is currently on a one-month stay in Seychelles to hold mediation workshops for judges, lawyers and law students. Dr Gordon Low is a law professor from Arizona State University. After serving as a senior judge in the Utah District Court, he has been in private mediation practice for the last 20 years and has performed more than 600 successful mediations since. He has also conducted mediation training in many countries across the globe.

As part of the Supreme Court’s public outreach programme, Dr Low last week delivered a public presentation on mediation at the Palais de Justice on Ile du Port. He said that mediation is now becoming the legal norm and should become part of the legal system. At the same time, he feels that people should be happy to resolve disputes without going to court. He has insisted that in cases where the idea is not at first understood, education is the best way to make it accepted.

“While we rely on the old British Common Law system and the Napoleonic Code which have been in use for more than 500 years, we must realise that the world has changed and so we can all change. The legal system must also change even if it will take time. If at first you fail, teach people and help them focus on their interests and not on their position,” the law professor has advised.
Dr Low added that the court is not necessarily a good way to resolve disputes as courts try to bend or break the arm of the parties. According to him, mediation on the other hand helps resolve disputes as the court only ends them and society has to live with the consequences of this end.

“Courts exist to make life happy and if disputes remain unresolved society will be less happy. The court is a nice place for lawyers. Nobody else wants to be there. So let parties resolve their conflicts through mediation with their own resources and with the help of a mediator. Judges are not smarter than the people, the lawyers and the parties. At the same time, the court has no time and not enough money to resolve all the conflicts,” he said.

Mr Low is convinced that mediation is one of the best means of case management as it decreases the number of court cases. As for the lawyers, he believes that the practice increases their competency and makes them more reasonable as it always ends with a solution. He concludes by affirming that as every court should be a court of last resort, mediation is the future of the legal system:

“One principle taught in every law school above all other laws is reasonableness or the expectation of reasonable behaviour. In mediation, the parties become reasonable and can make reasonable decisions as to their future. Mediation is geared towards the future.”

Mediation was first introduced in the United Kingdom as a form of legal service to the poor. Beyond the arguments of cost and time, the whole Seychellois culture of going to court has to change if we want it to be successful here.

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