What does the process for mediation typically look like in the Cayman Islands? Juliet: As a jurisdiction, the Cayman Islands has built a sound and mature judicial reputation with regards to litigation, leaving the culture of mediation still in its infancy. This is unlike our larger neighbours in North America and Jamaica, where mediation is a standard practice for dispute resolution. However, in the last decade we have seen the courts adjust their model and make a concerted effort to encourage mediation in family matters. Parties referred to mediation by the court will have the option of using court-appointed mediation free of cost, as well as the option to appoint a private mediator. The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute. Mediation in the Cayman Islands is finally becoming more popular for an increasing number of people as a means of dispute resolution. Indeed, the family court will expect parties to have utilised the services of a mediator before applying to the court for resolution. As mediation is not commonly offered as the first option in civil matters and any that are conducted are done so privately, there is no clear record as to how many mediations are taking place annually or whether there is a rise in the trend. A big part of the issue we face is that many people still do not know what mediation really is or how it can benefit them. What is mediation – or, more importantly, what is it not? Chanda: ‘Compromise’ – that is how it is often described. To me, however, this is an oversimplification of the process. Additionally, where you have a spouse or business partner who has been biting their tongue in endurance of another person’s behaviour for years, compromise can become a dirty trigger concerns separately in individual rooms so that each can be heard without disruption, which assists more expedient resolutions. The lawyers normally step back at the mediation stage but are on hand to advise their client as required and then more actively again at the stage of drafting and completing any orders by consent, which will ultimately then require signoff by the respective judge or magistrate as well. Chanda: With me as their mediator, the parties can expect to be heard and to answer some thought-provoking questions. I typically request that mediation clients reserve 90 minutes to three hours for their first session to allow ample time for discussion and breaks if things get too heated. word fuelling resentment and victimised feelings. I often describe mediation as creating an outcome that everyone can live with. My first experience with mediation was 14 years ago. A magistrate sent me into a room with my abusive ex and his overly aggressive attorney to mediate visitation arrangements for our young child. The whole time I sat there with his attorney demanding the terms while I was forced to negotiate like crazy for my rights, as well as the wellbeing of myself and my child. The whole time I was silently screaming: this is not mediation! What can clients expect from their first mediation experience, and how do you help your clients prepare? Christine: It is generally accepted in family law practice that mediation will be the first point of order for attempting to settle a matter. Often at the first appointment hearing the parties will already have determined whether they are open to the mediation process and will have instructed their counsel to seek orders for mediation at the onset. At this early stage of proceedings, it has become the norm for the judge or magistrate presiding on a matter to encourage the mediation process in the first instance with the court-appointed mediator, which has proven to be a successful avenue in even the most initially contentious matters. The process starts with acquiring background information regarding the parties. That information is then forwarded to the court-appointed mediator, who subsequently coordinates a Mediation Information and Assessment Meeting (MIAM) with the parties. This process will normally include providing the parties with forms (including financial disclosure forms) for their completion before the first actual mediation session. Next is the actual mediation, which can often run from one hour to half a day. In the event that the parties are very contentious, the mediator can decide from the initial MIAM to hear each party’s The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute. 14 LAWYERMONTHLY SEPTEMBER 2022
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