The court system has three levels. There is the Magistrates’ Court, which is the first level; the Supreme Court of Judicature, which consists of the High Court of Justice and the Court of Appeal, the second level; and the Judicial Committee of the Privy Council, the third level and our final court of appeal. In addition, there are specialised courts which are designed to handle special matters. These courts have limited jurisdiction concerning only those particular types of cases. These include the Family Court, The Industrial Court and the Tax Appeal Board. Persons who are experts in the related fields enhance the special function of these courts.
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Alternative Dispute Resolution (ADR) is a term used to refer to dispute resolution processes in which parties are assisted by a third party, who helps them to resolve their dispute in a way that is less formal and often more consensual than is done in the courts. ADR has many notable benefits such as participation by the disputants, the non-adversarial nature of resolution and cost effectiveness.
There is a rising tide for the use of the ADR methods of conflict resolution. These have been as a result of the exponential increase in the number of cases handled by the courts resulting in a backlog. The increasing costs and decreasing satisfaction with litigation, costs may involve money, time and loss of opportunity. There is a movement in society today to a more natural and humane method of dispute resolution and the empowerment of disputants to participate in resolving their own problems. The necessity to become more flexible in resolving disputes. The importance of maintaining confidentiality by avoiding publicity.
The success of ADR is dependent on the practitioner’s familiarity with the entire spectrum of ADR options so that they can accurately advise disputants and stakeholders on the design of appropriate conflict management systems. Despite its obvious benefits ADR may not be the answer to all conflict resolutions. Some disputes may simply be inappropriate for ADR. The following examples are intended to illustrate this proposition:
cases involving domestic violence;
cases that raise constitutional issues;
public policy issues;
repeated violations;
cases where individuals do not understand their rights and choices.
Mediation
Throughout the world mediation has emerged as one of the most popular forms of alternative dispute resolution (ADR). It is a process in which a third party, who is impartial has no stake in the outcome, and has no power to impose a decision – guides disputants through a non-adversarial discussion process that has as its goal the settling of disputes. Goldberg, Sander, and Rogers (1992) point out that “mediation is usually a by-product of failure – the inability of disputants to work out their own differences [1] . The mediation process is both cost effective and minimizes the amount of time spent when seeking to resolve a dispute. With the advent of the CPR and the objective of the court to resolve matters in a timely manner, paves the way for the furtherance of mediation in the Judicial System under this new system.
Some of the tenets upon which mediation hinges are that (1) Mediation preserves family relationships. (2) The process and outcomes are owned by the two parties. (3) It is cost effective and (4) The mediation setting is private. Pre-mediation involves a discussion of the issues in dispute. Prior to beginning the mediation process, the couple have the opportunity to meet with the mediator. Unlike other forms of ADR, the mediation environment is of extreme importance, as well as setting a tone that is non-adversarial. The privacy that mediation affords most times cannot be entertained in litigation, for instance. The court room is a public forum and is void of any private means for the discussion of topics of a personal and sensitive nature.
Overall, the aims and objectives of mediation – the environment, the manner in which discussion is encouraged, the time saving and cost saving features, high levels of confidentiality and the privilege of the parties having a fair share in the decision making process, may undoubtedly ensure that disputants can come to a satisfactory agreement.
The Family Court
The establishment of the Family Court in 2004 brought with it innovative ways in dealing with families in conflict. Initially, there was no court with specific authority over family matters. This often proved chaotic and therefore resulted in remedial attempts to address this problem. One of the main objectives of the Family Court is the focus on resolving family disputes in a way that improves and not destroys the quality of life between family members, thus preventing the breakdown of the family unit. Familial matters undertaken by the Family Court include issues surrounding adoption or custody of children, neglect or abuse of children, and domestic violence. Overall, the court’s attempt is to
The jurisdiction of the Family Court at the High Court level includes applications for a wide variety of family-related issues, including divorce, paternity, child support, and property settlements. At the magisterial level it covers issues such as child support, custody, adoption and domestic violence as it relates to these areas. The services provided by the Family Court and its design also reflect its mandates. For example, matters are heard in meeting rooms rather than court rooms, and parties may be referred for social services support and/or mediation. In addition, there are specially designed areas for minors whose parents are attending court[13].
The Family Proceeding Rules 1998 were implemented to govern proceedings in the High Court section of the Court. Thus Rule 16.5 provides that “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 mediation”. Rule 14.1 provides that the Court shall further the overriding objective by “actively managing cases” and goes on to list a number of things which this includes. Among them are the following:
(c) encouraging the parties to use the most appropriate form of dispute resolution including, in particular, mediation, if the court considers that appropriate and by facilitating the use of such procedures,
(d) encouraging the parties to cooperate with each other
(i) as to the parenting of any children;
(ii) in the conduct of proceedings
The Family Proceedings Rules (FPR) is in force in the Family Court’s High Court jurisdiction. It outlines a judicial philosophy referred to as the ‘overriding objective’8. This requires that the High Court must deal with family matters justly9 and in a way which gives first and paramount consideration to the welfare of a child10, where there are issues affecting any child of the family. A duty is also imposed on the parties to “help the court to further the overriding objective”11
Power is expressly given by section 14 (1) of the Mediation Act 2004 to a judge or magistrate to refer parties to mediation by a certified mediator in any matter other than a criminal matter. Under section 5(1) of the Family Proceedings Act 2004 a court (which includes a magistrates’ court) may refer a matter or any aspect of it to mediation or to the unit responsible for social services in the court or to some other professional.
Parties can be referred by a Judge or Magistrate at the Family Court for Court Annexed
Mediation.
The High Court
The High Court hears indictable criminal matters, family matters where the parties are married, and civil matters involving sums over the petty civil court limit. The High Court is the court of original jurisdiction for civil and criminal matters, and its decisions are appealed in the Court of Appeal. It has jurisdiction in indictable criminal matters in civil and family law cases.
The High Court of Justice is the superior court of record and has all attributes of such a
court, including the powers granted to the Supreme Court of Judicature, except in cases
stipulated by Parliament. It hears criminal matters, family law matters involving married parties, and civil matters with claims higher than TT$15,000.
One such method involves court based adjudication, or ligation, which is a controversy before a court or a “lawsuit”. A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favour and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. If it is not settled by agreement between the parties it would eventually be heard and decided by a judge or jury in a court [2] .
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As indicated earlier, one of the primary goals of mediation is to preserve and further enhance the future relationships of persons involved in a dispute. The availability of mediation in the court system is a welcome initiative in ensuring that the process is less formal or adversarial than that of litigation. It is instructive to note however that there are some offences that the criminal justice system will be more apt. For example, murder or rape.
The Petty Civil Court
The Magistracy (in its petty civil division) deals with civil matters which involve sums less than 15,000.00. A claim for more than this sum must be made in the High Court. It exercises summary jurisdiction in criminal matters and hears preliminary inquiries in indictable matters and thereby determines whether a matter is to be held over for trial in the assizes. Civil matters before a magistrate are heard in the Petty Civil Court. When the magistrate sits in this court he or she is considered a judge of the Petty Civil Court.
Apart from being limited by a money value, the Magistrates’ Court is also limited by the nature of a civil offence. Specific matters are not heard there; for example, libel, slander, malicious prosecution and in some cases title to land. Persons wishing to bring an action for any of these would have to file that claim in the High Court.
Community Mediation Centres
The Community Mediation Act 1998 provides for mediation in both criminal and civil matters. Part I of the Act provides for mediation in criminal matters, while Part II provides for mediation in civil cases. The Director of Public Prosecutions (DPP) is entitled to be heard by the court, before the court determines to make a mediation order. This is one flaw of the Act, in that mediation is a consensual and voluntary process and allowing the DPP into the process does not really fit in. However, it could be legitimate on the grounds that the DPP has a constitution responsibility to have a final say in all criminal prosecutions. Overall, the Act is important to the establishment of ADR principles into the Criminal Justice System. Both the defendant and the complainant have a right to apply for mediation.
A mediation order suspends the trial and commits the case to a mediator. Prior to this, the court explains to the defendant clearly and precisely the purpose and effect of the
order, the consequences for disobeying the order and the power of the court to review the order. During the mediation the parties may be accompanied by their lawyer.
Any incriminating statement made in the course of the mediation, as well as the mediator’s report are inadmissible in a court of law – in keeping with the principles of mediation.
The act restates some of the fundamental principles of mediation by providing for immunity of suit for the mediator and confers confidentiality on the mediator and every person concerned with the administration of the mediation centres or the mediation process.
Shortcoming – Although serious crimes should not be mediated, mediation in criminal matters, the law is limited in scope and provides for only very minor and petty offenses.
Similarly, mediation in civil matters – the act attempts to marry the simplest types of petty civil matters with the most complicated ones of family mediation, namely custody and maintenance.
According to Deosaran (1995) community mediation can be extremely applicable and useful for minor crimes and offences committed by young persons, as well as for first time offenders.
Conclusion
Mediation may be utilized in petty criminal matters, all types of civil litigation, matrimonial matters and commercial matters. A new professional body of Mediators will soon develop.
From the time that the Family Court opened, it was hailed by the media as an important ‘weapon’ in the struggle to restore and promote family values in Trinidad and Tobago. The ‘breakdown’ in family life is credited with being the root cause of the many serious problems that currently beset our society (such as incest and child abuse, increasing numbers of street children, rampant domestic violence, increased youth crime and indiscipline in schools.
The Criminal Justice System in Trinidad and Tobago has stepped up to the challenge of introducing mechanisms to complement the current adversarial system of retribution, by modifying the tone of the disputants’ environment and the subsequent effectiveness of ADR approaches. There is a need for the re-introduction of the community mediation centres where petty civil matters could be heard, thus freeing up the court to adjudicate in more serious offences.
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