Lawyer Monthly - August 2022

hat does the process for mediation typically look like in The Bahamas? There is no set process for mediation in The Bahamas. Although I did a 40-hour mediation training course in 1995 and was involved with mediation since the late 1990s as counsel, the process of mediation is still not a common way to resolve disputes in The Bahamas. In the processes with which I was involved in the late 1990s, the mediator was in those cases a Canadian citizen who came to The Bahamas to conduct the process each time. I welcomed the process, and in the first several matters, the parties making the claim refused the offers made during the process and obtained nothing during the court process. Since that time, however, while there is a great need for public education on the process, there are persons who avail themselves of it. Unfortunately, there are still too many people who want to ‘win’! The idea of a creative successful outcome in a dispute remains a difficult concept for many litigants to accept. Many see mediation as weakness rather than strength. Despite it all, many persons do now avail themselves of the process, if for no other reason than to get a quicker resolution. The majority of persons in The Bahamas trained in mediation are trained through the Chartered Institute of Arbitrators, Stitt Feld Handy, or ADR Bahamas. The facilitative model is still the preferred model. How does mediation vary from negotiation? In what situations is each most appropriate? Negotiation is a part of mediation and the process of negotiation is a Promoting Dispute Resolution in The Bahamas The modern landscape of mediation has undergone a seismic shift in the past several years, not least because of the COVID-19 pandemic and its ensuing effect on the technology now relied upon for alternative dispute resolution. Career mediator Caryl Lashley offers her thoughts on the state of mediation in The Bahamas and internationally – why is it so crucial to modern business relationships? EXPERT INSIGHT W necessary component of mediation. Parties can negotiate themselves, without the assistance of a mediator or anyone else. Negotiation is an appropriate process when we are prepared to act in good faith, when we are prepared to be vulnerable, and when we are prepared to engage fully in the process. The mediation process requires everything the negotiation process does and more; it requires a (preferably well-trained) third party neutral to facilitate and manage the process. The negotiation process is always appropriate, even during the course of the mediation. What advice do you have for conducting a successful mediation? Do you have some favourite techniques? The restoration and maintenance of a relationship is one of the many beneficial aspects of mediation. To my mind, this is the most beneficial aspect; it ensures that we move forward in peace and with positivity. Certain factors like cross-cultural issues and other highly inflammatory matters which involve illegality or other third-party biases make mediation difficult. Even our own biases make mediations difficult. We need to be aware of our biases and we need to articulate and own them; people are people, and we are all the same when it comes to emotions and weaknesses. Some of us have the strength to recognise and acknowledge those biases and weaknesses – that is what separates us and makes some of us better mediators than others. A mediator who demonstrates curiosity and builds rapport early on The idea of a creative successful outcome in a dispute remains a di cult concept for many litigants to accept.

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