Introduction

Alternative Dispute Resolution, commonly known as ADR is gaining much momentum in many common law countries as a means of reducing litigation in Courts. The world is moving from the archaic or confrontational means of settling disputes to conflict resolution by peaceful means through mechanisms such as Negotiation, Mediation, Conciliation and Arbitration. Therefore this paper will take the course of an analysis being done on the Alternative Dispute Resolution Act 2010, the Family Court Rules and the New Civil Proceedings Rules of Guyana respectively, which will as a consequence produce the understanding as to whether the suggested mechanisms provided in the legislations will be appropriate, effective and from a practical standpoint efficient in solving and soothing the never ending woes that the litigation process has created upon the judiciary and the reasonable man seeking justice.

Alternative Dispute Resolution Act

Justice is blind but it is not soJustice is what you can buy invariably. Justice is what you can access if you have enough money. Justice is what you can get by way of compromise. There is no ideal perfect justice. It reflects the nature of the society, it reflects the class division of the society and it reflects the privileges that endear in a particular historic moment in society1. The Alternative Dispute Resolution Act can be described as an innovative mechanism which sought to provide for the mediation of disputes as an alternative to litigation. For this reason, the objective of this Act can be seen, not only to assist society in changing the litigious culture embedded into it but to also simultaneously, create a culture that would encourage people to get involved in resolving conflicts in their communities, villages and districts. Within this Act, one can find that parties generally have the right to agree to and arrange for mediation or neutral evaluation of any matter otherwise than in accordance with the Act2. Parties to a dispute, may prior to the commencement of Court proceedings, agree to arrange for mediation or neutral evaluation as they deem fit3. This provides some amount of scope or choice for both parties to reconcile their differences where they see that it can be done, unlike having to confront and bash each other in a court of law which is sometimes not the best approach in mending relationships. Having the opportunity to enter or utilize the mediation or neutral evaluation process as a means of resolving a dispute alternatively also provides or gives parties to the proceedings the privilege to agree on as to who is to be the mediator or evaluator for the matter but however where a consensus is not derived, the evaluator or mediator is to be the registrar or his nominee4. This approach as expressed in the Act illustrates its practical nature in dealing with the inevitable and the unpredictability nature of man in general, as it relates to agreeing or having a consensus.

MP Moses Nagamootoo in his presentation, of the Alternative Dispute Resolution Bill 2010- Bill No. 18/2010 Subject to section 4 (1) A court may, by order, refer a matter arising in proceedings before it (other than criminal proceedings) for mediation or neutral evaluation if the court considers the circumstances appropriate and whether or not the parties to the proceedings consent to referral. 3 Section 3 (1) (2) 4 Section 4 (3)
2

The Alternative Dispute Resolution Act also considers that a party to a mediation session or neutral evaluation session may want to withdraw from the session at any time, this is catered for and parties can do as such5. However, the remuneration of a mediator or evaluator is to be borne by the parties to the proceedings in such proportions as they may agree among themselves or failing agreement, in equal shares or otherwise directed by the court6. This offers an avenue to some extent cheaper justice for the reasonable man however; it may be a bit complex in situations where a man may not be able to afford the cost directed by the Court or where the other party may want to agree upon. Nonetheless, the Act goes on by stating that unless otherwise agreed by the parties or directed by the court, costs of a party of and incidental to the mediation or neutral evaluation are to be partys costs in the cause7. The role of enforcement of decisions are also salient for the success of and the efficiency that such a process is gearing to provide as such a court may make orders to give effect to any agreement or arrangement arising out of a mediation session8.This Act however, does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in respect of any matter which is the subject of a mediation session9. The Act should also be commended in the area of confidentiality and disclosure of information, unlike its litigious counterpart which showcases and makes everything public causing as a consequence further destruction of family relationships, the importance of confidentiality placed on the Act reduces the whole notion of seeking justice in most cases results in the dehumanizing of the individual, it protects the integrity of the parties who, when they come out of court come out bruised and battered from being examined, cross examined and all the drama that one can see taking place daily in the local Court system which assists in the dehumanizing process. Nonetheless, The Act goes further in stating that a document prepared for the purposes of, in the course of, or as a result of a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or

5 6

Section 5 Section 6 (1) 7 Section 6 (2) 8 Section 7 (1) 9 Section 7 (2)

body10. Information may be disclosed in proceedings instituted in respect of commission of fraud or an offence or the commission of an Act that renders a person liable to civil penalty (which acts as a form of public policy) or in any circumstances where all parties involved in the relevant mediation session or neutral evaluation session agree to the waiver of the privilege or if the document was prepared to give effect to a decision taken or an undertaking given in a mediation session or neutral evaluation session11. Hence, A mediator or evaluator may disclose information obtained in connection with a mediation session or neutral evaluation session only in any one or more of the following circumstances i.e. with the consent of the person from whom the information was obtained, in connection with administration or execution of this Act or any Act under which a mediation session or neutral evaluation session is conducted, If there are reasonable grounds to believe that the disclosure is necessary to prevent or minimize the danger of injury to any person or damage to any property among others. Evaluators and Mediators are pardoned from liability i.e. No matter or thing done or omitted to be done by a mediator or evaluator subjects the mediator or evaluator to any action, liability, claim or demand if the matter or thing was done in good faith for the purposes of mediation session or neutral evaluation session under this Act. Nevertheless, the Act does not go unchecked without recognizing its evident flaws and inconsistencies. The Alternative Dispute Resolution Act by virtue of its connotation should exemplify as the late Professor Peter Britton posits, a range of procedures which serve alternatives to the adjudicatory procedures of litigation for the resolution of disputes generally but not necessarily involving the intercession and assistance of a neutral third party who helps to facilitate such resolution.12 These are the wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes, that would be able to produce efficiency, affordability and justice for the reasonable man. Processes such as Negotiation, Arbitration13, Mediation and Conciliation should be recognized and be provided as an option to the reasonable man. However, this Act illustrates the total converse of what the ADR spectrum entails,
10 11

Ibid (5) Ibid (6) ( c) (d) (e) 12 Professor Peter Britton, Worksheet 1: Introduction and expectations from the ADR course, p. 1 13 Arbitration Act Chapter 7:03

providing only Mediation and Court Connected Mediation, which is repugnant and provides a limited scope of what can be achieved with the introduction or reinenforcement of other processes14, as aforementioned, that are also appropriate and familiar to our culture and which would at the same time assist the justice system in relieving the courts of the never ending back log of cases. One should also note, that even though Mediation has been quite influential towards the development of resolving conflicts out of the court system which as a result produced Guyanas first Mediation Center15, other forms or processes in the spectrum must be given the respect and opportunity to be utilized in our society where more and more persons are becoming aware and au fait of ADR as a means of resolving their dispute.

Secondly, the Chancellor may compile a list of persons considered to be suitable to be mediators and evaluators for the purposes of the Act16. However, without prejudice to the powers conferred upon the chancellor aforesaid, the parties to any dispute, prior to or after the commencement of proceedings may choose a mediator or evaluator not identified on a list, as they deem fit 17. It may be suggested that instead of providing parties with the privilege of simply having someone that they deem fit, emphasis should be placed on the qualifications or training of the respective Mediator. Since the Mediation process is one in which a trained third party or person assists the participants in a dispute in resolving it. It would be like placing a qualified Veterinarian who has no knowledge of Mediation, as the mediator over a Family dispute. It may be humorously suggested that this session with the Vet may only be successful if the family in the dispute illustrate tendencies of animalistic behavior. Thirdly, it is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. The Act provides for a situation of court annexed mediation where the court can order or refer a matter arising in proceedings before it, either for mediation or neutral
14 15

Arbitration Act Chapter 7:03 Located in the compound of the High Court 16 Section 8 (1) (2) 17 Section 8 (6)

evaluation, even if the parties do not agree. As Spidr Posits, mandated participation in non binding dispute resolution processes is often appropriate. However, compulsory programs should be carefully designed to meet concerns of monetary and emotional cost of parties, interest of parties in achieving results that suit their need and will last. Other factors such as the risk of flexibility and high quality of process will fall prey to deadly routining influence and bureaucracy. More Formulaic sessions of mediations may result in short rigid sessions that lower, party involvement, poor resolution and thus lower voluntary compliance with resolution18.

And finally, the Act continues to make mediation voluntary. It is not mandatory. If it is going to just be voluntary, then there needs to be progressive or it should be initially, be mandatory, obviously, with an option to come. If persons do not have an option to come out, that goes against the whole nature of mediation. This is also coupled with the fact that cost for the mediation session is borne by the parties to the proceedings 19 , prior to this, societys view about the introduction of this Act was that it was seen as a wave of hope and a breath of fresh air for those who could not afford the long-drawn-out process that litigation process had in store, along with high end priced Lawyers who are always ready to increase the financial burdens the reasonable man is already faced with. It is most respectfully submitted that, with cost being imposed (although it may seem as a reasonable means to obtain capital for the functioning of the mediation program) it can be contended that the government of the day should play a more serious role in the area of financing so as to cut cost for the ordinary Guyanese who may not have the money but would like to seek this form of dispute resolution to resolve their matter. Such an approach would not only promote awareness, efficiency and justice within the civil justice system, but it would truly represent the notion of Justice for one and Justice for all in our society.

18 19

Mandated Participation and Pressure to Settle (1990) Section 6 (1)

Family Court Rules

ADR is like an Octopus with hydra- headed tentacles. It is now increasingly accepted that legal standards do not guarantee access to realistic solutions that meet the needs of individuals whose lives are ruptured by legal disputes20. Generally speaking, the need for ADR in family disputes is even more necessary than other fields in that matter. Disputes of this nature should not be conducted in an antagonistic manner; as such parties should not leave such decision making to a third party21. With ADR being utilized in resolving family disputes it more or less results in the preservation of family relations and provides remedies which are more flexible than those of the court because of its informal nature and because the parties come to an agreement based on the fact that they negotiate it, may give parties a sense of a win - win situation. The parties also would be able to gain understanding to emotional issues that may have been the cause of the dispute. ADR may be useful in family disputes but it is not applicable to all disputes, such being cases of abuse which may need the guidance of the court because of its nature.

As such the soon to be implemented Family Court Rules aim to provide such, the Rules indicates that where the court considers that it is appropriate to obtain the services of a probation officer, the court may utilize the services of, any person whose qualifications are similar to those of a probation officer and who either is a public officer or is employed on contract by the state or with the consent of the parties and the court, a private mediator, counselor or other professional paid by the parties or mediators paid by the state22. This approach should be seen as a good and appropriate means of effectively promoting viable ADR processes which will be able to not only assist in child welfare matters but will be less inhumane and would aim more towards building a relationship that would be in the best interest of the child, who in most divorce and cases of this matter suffers the most in the separation.

Notwithstanding rule 11.13 that asserts where the court utilizes the services of the mediator the court may not compel a mediator to give evidence or submit a report save that a report shall be made to the court as to whether or not the mediation resulted in agreement. The Court shall
20 21

Albert Fiadjoe, Conflicts and Dispute Resolution Processes, 2000 Simon Roberts, Article on Mediation in Family Disputes 22 Rule 11.13 (a) (b) ( c) (d)

further the overriding objective by actively managing cases. This may include; identifying the issues at an early stage, deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others23 thus saving time and promoting efficiency. This would be done by encouraging the parties to use the most appropriate form of dispute resolution including, in particular, mediation, of the court considers that appropriate and by facilitating their use of such procedures, hence, promoting ADR processes which would as a result be used as a device in improving access to justice and curing the inefficiencies of the Civil Justice system in Guyana. The rules also encourage parties to co-operate with each other as to the parenting of any children and in conduct of proceedings24, with such active encouragement being promoted and with assistance being provided for parties to settle the whole or part of their case on terms that are fair to each party25, can be seen as welcoming in that prior to this, that is when litigation was viewed as the only means or avenue to access justice, the underlying needs of parties were not the focus of the dispute, it was more focused on the adversarial nature in the presentations and the tearing down of each other to gain or obtain what they would have wanted from the other party. Other important and commendable means of safeguarding efficiency and justice in the rules are that decisions as regards, the order in which issues are to be resolved are catered for along with the fixing of timetables i.e. controlling the progress of the case. With Consideration being made as it relates to whether the likely benefits of taking a particular step will justify the cost of taking it; dealing with as many aspects of the case is practicable on the same occasion; dealing with the case, or any aspect of it, where it appears appropriate to do so without the parties needing to attend court. Also, Making appropriate use of technology, giving directions to ensure that the trial of the case proceeds quickly and efficiently though taking into account the particular needs of parties to matrimonial, family and similar disputes and when necessary, making interim orders and ensuring that no party gains an unfair advantage by reason of his failure to give full disclosure of all relevant facts to the hearing of any matter26. Are all benefits one can derive from using such rules.

23 24

Rule 13.1 (a) (b) Ibid (c ) (d) 25 Ibid (e) 26 Ibid (f) (g) ( h) (I) ( j) ( k) ( l ) (m)

In the area of Settlement and Mediation in the rules, the court shall take all practicable steps to encourage the parties to reach agreement on any disputed matters and, in particular may refer the parties to mediation27. The court will also whenever practicable consider the existing and proposed arrangements for the relevant children28, and fix a timetable which deals; with the order in which each disputed matter is to be tried; and the steps to be taken in preparation for the hearing of each such matter and the dates by which each step shall be taken29. The general rule is that the court shall fix a date or dates for the hearing of each such matter shall take place and fix a date by which the court office shall send a listing questionnaire to each party. At last directions hearing before the hearing of any matter the court may; direct either party to provide further information to the other and give directions for the filing by each party of one of more of a skeleton argument, chronology, a list of authorities a core bundle of documents30.Direction is also given whether or not there are to be any opening or closing addresses and the time to be allocated to each and decide on the total time to be allowed for the hearing and direct how that time shall be allocated between the parties. The rules goes further in providing that the court shall not adjourn a directions hearing without fixing new date, time and place for the adjourned directions hearing31. Where the court is satisfied that either the parties are in the process of negotiating a settlement or the parties are receiving or the parties are attending or have arranged to attend mediation32. The court may adjourn the directions hearing to a suitable date, time and place to enable negotiations, counseling or mediation to continue. The court may give directions in writing as to the preparation of any matter for the trial whenever the directions hearing are adjourned. Each party shall notify the court office promptly if the matter has been settled33.

These soon to be implemented Family Court Rules are ground breaking and to a further extent can be seen as futuristic for it not only brings clarity, efficiency and hope for a brighter Civil Justice System in Guyana but it is also framed to meet the exigencies of society and to lift the down trodden justice system that we have. If one were to make an analogy of these rules with

27 28

Rule 15.5 Ibid 15.6 29 Ibid 15.7 (1) 30 Ibid (4) (a) (b) (i) (ii) (iii) (iv) 31 Ibid 15.8 (1) 32 Ibid (2) 33 Ibid (4)

the Alternative Dispute Resolution Act 2010 it would be contended that the former i.e. the Family Court Rules is likely to be more effective than the latter i.e. Alternative Dispute Resolution Act 2010. The Family Court Rules is like that silver lining behind the grey cloud and reminds us that with its usage when implemented would provide disputing parties who have an on-going family problem would benefit from working together to achieve a mutually acceptable resolution to their dispute. Parties who understand each other's concerns and develop satisfactory solutions to address these concerns often improve their relationship and enhance their ability to work together in the future34 and in our society where domestic violence and other issues of this nature are becoming increasingly prevalent, the implementation of these rules would produce more than just efficiency but can be used as a device to produce a cultural change in the way the reasonable man in society thinks and deals with the problems he is faced with. As Mahatma Gandhi posits if we were to resort to bullets every time there is a conflict or take an eye for an eye. The whole world would be in darkness. As such, the implementation of these rules should not be seen as bullets that will bring darkness as Gandhi posits but bullets that shall transform our Civil Justice system for not for a brighter justice system today but also one for tomorrow and beyond.

34

Cory J, in Edmonton Journal v. Alta (A.G) 1929

New Civil Proceedings Rules of Guyana

According to the Attorney General of Guyana Mr Anil Nandlall, the New Rules of Court was designed to ensure that civil litigation is conducted in an expedient manner, thus the case, which is required to be tried by a judge, is clearly defined and the witness statements are prepared and submitted long before the trial. The rules will in actuality help simplify the entire litigation process35. But upon close examination can we really believe and agree with this statement made by Mr Nandalall? For this reason, the purpose of this section seeks to illustrate how effective and useful these New rules will be in providing efficiency in the Civil Justice System in Guyana.

One can note that with the Rules of Court36 Judges, Arbitrators, Mediators and other persons in charge of Moderating or evaluating are given discretionary powers in the respective areas, for example the judge at the trial of a short cause shall be at liberty to receive, call for, and to act upon such evidence, documentary or otherwise, whether legally admissible or not, as he may think fit37.A person who conducts the conference may conduct a mini trial, presiding over presentation by the Attorneys at Law for the parties of their best case and rendering a nonbinding opinion as the probable outcome of proceedings38 .Generally, a Mini trial is defined as a voluntary process in which cases are heard by a panel of high-level principals from the disputing sides with full settlement authority; a neutral may or may not oversee this stage. First, parties have a summary hearing, each side presenting the essence of their case. Each party thereby can learn the strengths and weaknesses of its own case, as well as that of the other parties. Second, the panel of party representatives attempts to resolve the dispute by negotiation. The neutral presider may offer his opinion about the likely outcome in court39.

35

Kaieteur News;Clients, Attorneys, Judges Dead, but High Court cases still pending , 23 April, 2012 36 Chapter 3:02 37 Rule 58.66 see also 58.67 38 Rule 46.24 ( c)
39

rd

Alternative Dispute Resolution Practicioners' Guide: Center for Democracy and Governance Bureau for Global Programs, Field Support, and Research U.S. Agency for International Development Washington, D.C. March 1998

However, it must be respectfully contended that, it is well known within the region, that there is a call for the introduction of alternative dispute methods that will not reflect litigation40, as such this sentiment is shared and contended by many legal luminaries residing in Guyana 41, and since Guyana has a huge backlog of cases as reported recently in the popular daily Kaieteur News captioned, Clients, Attorneys, Judges Dead, but High Court cases still pending, with approximately 6000 backlog cases in the High Court. Some going 10 years and still to be heard...The Lawyer, the client and even the Judge are deceasedbut the case is still pending
42

. Provides more and more reasons why the Mini Trial mechanism may not be suitable for our

local circumstances. The backlog of cases nightmare that our Civil Justice System is experiencing reminds us of Charles Dickens fictitious case of Jarn Dyce v. Jarn Dyce43, where a rocking horse was bequeathed by the deceased in his will to his grandson but because of the lengthy litigation process the grandson grew up and eventually had a family of his own without seeing his grandfathers bequest. Even though this fictitious case may have provided a reality check in illustrating the inefficiencies in the English Justice system at that time, It had certainly went unnoticed in Guyana for even years after the publication of that treatise, Guyana has been suffering tremendously when it comes to providing efficiency in its Civil Justice System. This can be shown in the cases of Rose v. Hanoman44 and Devonshire Castle Co-op Society v. Salisbury and Others45 both Guyanese Cases that have suffered due to the backlog of their respective cases, which had resulted in the respective cases having to sustain four generations of lawyers. With all said and illustrated about litigation do we really need to introduce another form of it? The Mini Trials mechanisms offered would only take Guyana as a former Calypso singer sang one step forward and plenty plenty backward in other words it will be the same thing all over again that we are currently experiencing in the Civil Justice System.

40

Abiola Inniss; Applying Alternative Dispute Resolution within communities, Chronicle News Thursday, 01 July 2010 41 Peter Britton Alternative Dispute Resolution Guyana Law Review publication 42 Ibid 43 Bleak House (1853) 44 (1951) L.R.B.G 135, L.R.B.G. 25 (1955) L.R.B.G. 122 45 (1955) L.R.B.G. 84 (1956) L.R.B.G.

The person who conducts the conference may also conduct mediation, assisting the parties by meeting with them together or separately to encourage and facilitate discussion between them in an attempt to reach a mutually acceptable resolution of the dispute or any part of it46. This seems to be an effective means in the Rules of Court that would effectively promote ADR and remove the idea of parties having to rush to the courts resolve simple issues affecting them. Confidentiality plays a significant role also as regards, disclosure of pertinent information as shown in Rules of Court which asserts that document prepared solely for the purposes of such a conference are confidential and may not be disclosed.47 This coupled with the fact that the dispute resolution conference provides for record keeping illustrates a great deal of importance being shown towards enforcing decisions.48 This goes hand in hand with the notions of having efficiency and effectiveness as regards the practicality of the Act in meeting the demands of our society. The registrar plays an influential role as shown in the rules of court, in that he does not only has the authority to oversee but also has the privilege of being able to resolve settlements and provide a recommendation towards an unsolved dispute that was tried under the alternative dispute spectrum49. There are no grounds for appeal as noted however, where the question arises on a point of law appeal will be given50. This notion removes the ongoing nature that a dispute may have as compared in the litigation process where cases may go on for a long period of time. The Rules of Court also provides for other mechanisms such as arbitration and mediation where it deals with the appointment of arbitrators, death of arbitrators, extension of time for award, modification or correction of awards, contempt of arbitrators, costs and procedure of award51 while in Part 60 of the said Rules of Court provides a guideline as to how the process of mediation should operate i.e. dispensing with mediation, selection of mediators and scheduling

46 47

Rule 46.24 Rule 46.25 48 Ibid 46.26

49 50

Ibid 58.63,58.64, 58.65, 58.66 Ibid 56.67 51 Ibid 59.1 to 59.15

of Mediators, timing of mediators, attendance of mediators, cost of mediation, sanctions, relief from sanctions and the use of mediators reports for research and evaluation52 respectively.

Case load management

Generally speaking, no court in the world can deal with all disputes that arise in society likewise no court in the world can take to trial every case that is filed. As such, case management mechanisms seems to becoming popular in regulating which cases should be given the courts time and which can be resolved via alternative means i.e. through Alternative Dispute Resolution mechanisms. And since delay is the enemy of justice53 case management can be seen as the friend that is there to provide the helping hand in providing efficiency and defending justice. Caseload management is a compendium phrase used to describe the set of actions that a court may take to monitor and control the progress of a case before it, from initiation to postdisposition court work. Among the nations of the Organisation of the Eastern Caribbean States (OECS), and in Jamaica and Trinidad and Tobago, there is a quiet ongoing revolution taking place on these very lines. The systematic change which is being advocated requires complete transformation in the culture of litigation, as it is known today. Guyana is certainly not excluded from being caught in the wave of change in this area that has approached our shores here in the Commonwealth Caribbean. The New Civil Procedure Rules caters for such as noted in rule 25.1, where it illustrates that it is the Courts duty to manage cases actively that is, through identifying the issues at an early stage, deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the other issues, encouraging the parties to use any appropriate form of dispute resolution including, mediation, if the court considers it appropriate, and facilitating the use of such procedures, actively encouraging and assisting parties to settle the whole or part of their case on terms that are fair to each party. The Rules of court also provide for the fixing of timetables, dealing with as many aspects of the case as it appears appropriate to do so without requiring the parties to attend court, making appropriate use of technology, giving directions to ensure that the trial of the case proceeds quickly and efficiently: and ensuring that
52

53

Ibid 60.1 to 60.16 Sir Thomas Bingham MR in Rastin v. British Steel Place (1999)

no party gains an unfair advantage by reason of the partys failure to give full disclosure of all relevant facts prior to the trial or the hearing of any application.54. As Professor Fiadjoe rightly posits if case management is successfully applied in this case the New Rules of Court, then the following may be successful outcome: Litigation would be avoided whenever possible; Parties of limited financial means would be able to conduct litigation on a more equal footing; Litigation would be less adversarial and more co-operative; Litigation would be less complex; and The timescale of litigation would be shorter and more certain55.

Additionally one can find that the rules of court provides for case management in the commercial Court56. Taking into account the aforementioned, the Rules of Court also provide for, the courts to display its general powers to manage, make orders of its own initiative, sanctions i.e. striking out statement of case along with the general right to rectify matters where there has been a procedural error57. Procedures for Case Management Conferences-Procedure is also covered under this rule providing a fixed date claims for first hearing that is, where the court must fix a date for the first hearing of the claim, among other procedures for the Case Management Conference i.e. attendance at a Case Management Conference or Pre-trial Review orders to be made at case management conference or pre trial review, Orders to made at Case Management Conference, dispensing with Cases Management Conference in simple or urgent proceedings, adjournment of Case Management Conference, variation of Case Management timetable, Listing questionnaire and fixing trial date are the areas that are provided for in the Rules of Court. It should be indicated that Case Management as a Rule of Court has took a step further in seeking to not only provide efficiency in the Civil Justice System but also provides an avenue for the

54 55

Ibid 25.1(1) (2) (a) to (m) Alternative Dispute Resolution: A Developing World Perspective; (Routledge Cavendish: United States of America 2004 ) pg 131 56 Section II and III Rule 46 57 Ibid 26.1, 26.2, 26.3, 26.4

poor and afflicted who may want to seek justice but cannot afford it. It also reflects article 10 of the Universal Declaration of Human Rights in providing and illustrating principles of Equality, Fairness and a chance for one to have an independent and impartial tribunal to hear their matter providing for a reasonable delay. This rule also sheds some light on a practical possibility of relieving the Justice System from the backlog of cases if they are managed properly.

Making offer to settle

A party may make an offer to settle to another party which is expressed to be without prejudice but in which the offeror reserves the right to make the terms of the offer known to the court after judgment is given with regard to the allocation of the costs of the proceedings and the question of interest on damages, the offeror may relate to the whole of the proceedings or to part of them or to any issue that arises in them. Other factors that have been discussed and outlined under this principle or mechanism in the Rules of Court are the time when offer to settle may be made, procedure for making offer to settle, extent to which offer to settle includes interest, costs or counterclaim, offer to settle made after interim payment, offer to settle part of a claim, time limit for accepting an offer to settle, the procedure for acceptance, the effect of acceptance generally and costs where the offer not accepted general rules58. This mechanism provided is good in that it formalises the already active and customary system of making offers to settle out side of the court and acts as a police in regulating and ensuring that this process is utilized effectively and no one using such method would be abused or victimized by the other party.

Pre-trial
This part of the Rules of Court deals with the Pre-Trial review which is to be held shortly before trial if the court so orders. Under this provision guidelines are given as to the direction for pretrial review, rules relating to case management conference to apply, parties to prepare pre trial memorandum and directions at pre-trial review, among other guidelines that are necessary for the effective operation of such rules in promoting ADR as a viable means of resolving conflict

58

Part 35 Rules of Court

out of the court59. It is Interesting to note that with the Pre Trial Process the Judge of the day in a Guyanese context will be given additional tasks that he already cannot manage under the constraints the reasonable Guyanese Judge has to face with on a daily basis. It can be respectfully submitted that this mechanism may not be applicable to our local circumstances and since it is patently obvious that the current legal complement of judges cannot deal with the case load that is currently pending in the judiciary to place additional pressure on our judges (who themselves have to deal with writing with pencils, a meager salary and slow influx of evidence etc. from those who will appear before them) would lead to even more backlogs that will result in some cases having to see not only the attorneys, clients and Judges going to the great beyond and their matters or case is still pending before the courts, but we may end up with a situation where the those inheriting the matter having to pass away too leaving and embedding a repugnant culture that will take us as a country back into the dark ages while the rest of the world is progressing into the 21st, 30th , 40th and 50th Century.

Consequently, the New Civil Proceedings Rules of Guyana provides much hope as regards effectively promoting viable Alternative Dispute Resolution Processes, (which despite some mechanisms not being appropriate to our territory) will certainly improve access to justice through mechanisms such as the Alternative dispute Resolution Conference, Offer to settle and Case Management. Which are interestingly creative procedures and surprisingly do not go back to or reflect the litigation process. Such mechanisms are needed for such a dynamic and

multicultural society as ours where people rush to the courts for simple disputes that could have easily been resolved among themselves or out of the court system. Therefore it will go a far was in curing the inefficiencies of the Civil Justice System in Guyana.

59

Part 38 Rules of Court

Conclusion
As human beings, our greatness lies not so much in being able to remake the world - that is the myth of the atomic age - as in being able to remake ourselves60. This is what the Alternative Dispute Resolution Processes seek to do, create a culture where people should not be confrontational or adversarial in dealing with and resolving their disputes but to be able to sensibly discuss them, so as a consensus could be made as a result enhancing and building better relationships in our families, work places, communities, regions and society in general. The introduction ADR mechanisms or processes will also assist in promoting creative lawyering and assist attorneys also in gaining the know-how in negotiating and general dealing with his or clients. Although it is held that one contributing factor for persons rushing to the court for simple disputes is because of the low processing fee and that if this is increased it would be a deterrent for persons61, If such is done it would be seen as an absurdity, in that it shows the barrier between rich and poor, where the rich gets justice while the poor suffers at the hands of the rich. What can be done is the proper implementation of the aforementioned rules which after analyzing them produced the understanding that they are quite practical, affordable and easily accessible to the reasonable man of the day and with its smooth implementation would result in, as a consequence an ease in the rush to the court. Even when ADR does not immediately settle the case, it often prompts a settlement later in the dispute62, henceforth, assisting in controlling and removing the backlog nightmare which the Civil Justice System is currently experiencing. It is believed also through the analysis of this paper, that laws should be created and implemented to explore all forms of Alternative Dispute Resolution not just Mediation and Arbitration. This would give the reasonable man his fundamental right to choose the method that best suits his or her situation. In the same vein, one can commend the existing rules and laws that are present, for they exemplify a futuristic approach in catering for the demands for our society despite some being inappropriate, it can be contended that the majority seems to be applicable and practical for
60 61

Mahatma Gandhi rd Kaieteur News;Clients, Attorneys, Judges Dead, but High Court cases still pending , 23 April, 2012 62 Mediation; Alternative Dispute Resolution; and the Alaska Court System (December 1999)

our local circumstances, however, more can be and must be done if it is to competently promote and enhance the productivity and efficiency of our Civil Justice System. And in a litigious society like Guyana it must be taught and illustrated through introduction of Alternative Dispute Resolution mechanisms and coupled with the implementation of the New Rules of the Court that violence should never be an alternative to sensible dialogue63.

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Mahatma Gandhi