Dispute resolution law revolves around resolving disputes in and out of court, from divorces to evictions, and from partnerships to breach of contract, but also on much larger matters than span over several jurisdictions and cover several parties. The most common ways to resolve disputes are mediation, arbitration and litigation, preferably in that order. For each of these processes, the right lawyer, mediator or arbitrator is crucial.
With a focus on the Caribbean, we touch base with Donna Allison, Principal at D. Allison & Prowell Co., a Trinidad & Tobago based law firm, and a specialist in dispute resolution, who discusses the aforementioned dispute solutions and challenges therein.
Does mediation suit certain types of dispute more than others? Why?
In the Caribbean, there is a growing trend for the parties to agree the solutions to their conflict instead of having an outcome imposed by a court using law that may be indifferent to the underlying nuances of the dispute. Even in the courts, the judges are encouraging parties to reach agreement and settlement. This permits a win/win outcome for parties that is not the usual outcome of rights adjudication. This approach, though often thought to be preferable for family type conflicts, works just as well in commercial disputes, where the costs and delay of prolonged litigation could be as detrimental and devastating as an adverse judicial outcome.
How can you promote mediation as a more positive choice than litigation?
Parties have become wary and at times unhappy with the judicial process. The times and costs frequently cause injustice, and justice delayed is justice denied. Mediation promotes continued good relations between parties who are likely to have continued interaction, fraternally and/or commercially. Hostility and bad-feelings tend to subside after a successful mediation. Parties are more likely to honour the undertakings they have voluntarily assumed in mediation, than to accept without appellate resistance a judgement of the court that they believe to be unfair. Where parties believe they have been unfairly treated, disputes can be prolonged by repetitive appeals and court machinations.
What challenges are raised by arbitration, and how can you navigate them to ensure that arbitration grows in popularity?
Arbitration mimics litigation, in that the result is imposed by the evaluation of the dispute on rights and the imposition of a verdict on the merits of the competing interests of the parties. Although it could be quicker and more controlled than the court process, the outcome is dictated by law without room for fairness or fairplay. It therefore tends to be preferred for commercial rather than family related disputes.
Arbitration techniques can however be adjusted to find utility in family related disputes. Often when these parties disagree at mediation, a gentle nudge that suggests a consequence that is adverse at the end of the process would be useful. While some litigants may relish their day in court if mediation is not successful, and therefore strategically resist settlement at mediation, the power of the arbitrator to impose an adverse verdict would be persuasive.
The challenge of arbitration is to ensure that the process does not become so stringent and burdened by procedure and rules, that the ultimate purpose for a resolution of the substance of the dispute is delayed or buried. It however provides a good medium where mediation fails, but the court process may be too cumbersome.
As Lead Counsel, what matters are most prominent in Trinidad and Tobago, at the moment?
In Trinidad and Tobago, as a small developing country but one of the State leaders in the Caribbean, a major judicial challenge of the society is to escape the colonial shackles of its legal heritage and to create a body of laws, conventions and legal practices that are consistent with its indigenous culture and norms.
When the Parliament/Legislature leaves its work incomplete, it is the Judiciary that must forge balance between the power of the Executive and the rights of the individual to the protection of the rule of law. Cognisant that it ought not to robotically rubber stamp the juridical mind of larger more developed judicial systems on our fragile system, the court’s task is made even more difficult under a Constitution where the separation of powers is more ideological than realistic.
Hence in public law, this has resulted in is a growing body of innovative, creative judgements in constitutional law and judicial review as the courts juggle this balance. The power struggle is mirrored in private law, as commercial interests and industry expand. Complaints of abuse of power in an economically uneven playing field fuels the necessity to inject natural justice into commercial contract and dealings – a path that is heavily resisted and avoided in the past. It tests the courts resourcefulness to provide a level and playing field where confidence in the judiciary is fostered and all society is content that the judiciary is standing guard.
As a Thought Leader, are there any legislative developments you are working towards implementing or exploring further in the realm of mediation?
I have used a self-developed form of mediation extensively and successfully in the settlement of both family related and commercial disputes between all litigants of varying means, status and backgrounds. It has become a norm in my practice to invite parties to a Joint Conference to explore the possibility of settlement, in the presence of their attorneys, behind closed doors and without prejudice. The process, though unorthodox, draws on mediation and arbitration techniques and is grounded in respect by litigants for their respective positons in the conflict, a genuine desire to find resolution, and the ability to remove the conflict from rights, rightness and righteousness to fairness and equity. Judges have been accepting the outcome of these conferences, approving and converting the compromises reached to court orders, leaving parties, amicable and empowered.
Throughout your years of practice, how do you think the Caribbean Court has developed? Is there anything you would change?
Caribbean jurisdictions maintain their internal court systems at the first instance and secondary appellate levels. Presently, we have a Caribbean Court of Justice that functions as a tertiary appellate court for some jurisdictions and administers Caricom Treaty. Some jurisdictions continue to have the Privy Council as its tertiary head.
There is a live debate as to when and/or whether the Privy Council should be fully replaced as a tertiary court for the Caribbean; there are meritorious arguments on both sides. To my mind, it is more when rather than whether, as it is doubtful for how much longer the UK court system will tolerate financially and otherwise the burden of this appendage. I am sure that the intellectual competence resides within our collective judicial intellect, and I would feel good as a Caribbean citizen to accept the mantle for our judicial responsibility before it is thrust upon us.
Is there a case that you will always remember; what challenges did it post, how did you overcome them and how did it shape you for future disputes?
My best cases are not always those that my client’s interest has prevailed or that have the greatest value, or received the most fees or publicity. My best judicial memories are those that, by their conclusion, leave my clients satisfied that their rights have been robustly guarded and advocated.
One of my most treasured memories was very early in my career as an advocate. After fighting doggedly to obtain an injunction, it was refused. As I struggled to come to terms with the youthful gamut of emotions and disappointment, my client, having long settled his bill with me, took out some cash from his pockets and in a kind, grateful and respectful gesture stated: “Don’t worry you did your best!”
I was overwhelmed. Not only was I being offered more than my fee voluntarily by my client, but his case had not been favoured by the court. Nevertheless, he was gratified that his position had been ventilated and by doing so he felt vindicated; I was humbled. I consider an outcome that leaves my client satisfied, his case so effectively articulated that he feels vindicated and pleased, to be my duty to each client, my overriding goal and most fulfilling objective. As an advocate, this is the best contribution that I could make to my profession.