Falklands : FIRS GOES ONE TO THREE ABOUT CONFLICT RESOLUTION
Submitted by Falkland Islands News Network (Juanita Brock) 22.10.2011 (Article Archived on 05.11.2011)
A new scheme to resolve disputes is to be introduced in the Falkland Islands. A recent announcement stated that the alternative scheme is more effective than taking disputes to court.
FIRS GOES ONE TO THREE ABOUT CONFLICT RESOLUTION
A Report for FIRS by Stacey Bragger (SB)
Intro by J. Brock (FINN)
A new scheme to resolve disputes is to be introduced in the Falkland Islands. A recent announcement stated that the alternative scheme is more effective than taking disputes to court. Councillor Dick Sawle (DS), the Senior Magistrate, Mr John Trevaskis (JT) and Peter DuBrumenal (PD) from the KEMH came into FIRS Studios and told Stacey Bragger about the scheme. The Hon Mr Dick Sawle started things off.
DS: I suppose the first thing to mention, it’s not really a government initiative. It’s a private initiative that came about because working as a JP for about 15 years, there are things that end up in court which could have been settled outside of court without having to resort to expensive legal fees as well as the stress and difficulty of taking somebody to court. It is obvious to me that in some cases, the parties could get together, had a chat and come to a compromise. I spoke to John at some length about this over a few years and I put it down as an objective I wanted to achieve when I got elected. I am pleased to say we seemed to have got there.
SB: How often does this sort of situation occur down here?
DS: That is really, really, really difficult to say because it just depends on what is boiling away in the background. I do know of a number of people who phoned or got in touch over the years and said they had a dispute like a boundary dispute with a neighbour and they wanted to try and solve it and have been reluctant to go through the courts and to lawyers because of the cost involved so I don’t actually know how many cases are out there. But if mediation can solve just one case, I think it’s been worth it.
SB: And John, from your point of view, do you think it is important to have this in the Falklands?
JT: Yes. Internationally now there is a very strong movement towards alternative dispute resolution as a means of resolving disputes. We are talking here about civil disputes – nothing to do with the criminal law, but to resolve civil disputes in a spirit of compromise, which enables the parties that often have a commercial relationship with each other, to put a situation of conflict behind them and move on and maintain a good working relationship or, indeed, if you are talking of people who are just neighbours and have to live with each other in a community, particularly a small one like this; and the ability to put their differences aside and basically get on with their lives. Obviously it requires a mutual desire of the parties to settle the dispute and a willingness within that desire to compromise their positions from not perhaps what they regard as their strict legal right in order to reach some common ground.
SB: Peter, Is this something you have had quite a bit of experience with?
PD: I have been a qualified arbitrator for a number of years also a mediator. We are talking about mediation here and mediation is a particularly good way of resolving disputes in a community like this because it is confidential, it has the beauty of being without prejudice, which means that even if the dispute may go to court later you couldn’t use what went on in the mediation. The parties, as John has said, then have the ability to carry on trading comfortably or living in an area comfortably.
SB: Is it difficult when parties become entrenched in their positions?
PD: Most disputes I dealt with have become pretty entrenched and that’s why they have come to mediation because they are afraid of the cost of litigation.
SB: How do you conceive this taking shape in the Falklands?
PD: I think here it has a bigger advantage than in the UK because it is a small community. Any dispute between people is one known to the community and can damage reputations. I don’t believe it will be a full time job. I do believe that those who avail themselves of it will find a very refreshing way of sorting out their problems.
SB: If anybody is interested in taking up mediation, how does one go about it? How would they get in touch with you?
SB: Initially they should contact Val Padgett, the Court Administrator, and not the hospital.
JT: It is very important they don’t directly approach Peter because as the mediator he needs to maintain his neutral and independent status. So one of the parties initially will contact Val and explain that they would like to undertake mediation. As I said it has to be mutual decision so the other party would have to be contacted and their consent would have to be secured and at that stage the preliminary information could be provided to the mediator from both parties and it would be over to Peter to take the process forward from there.
PD: In most cases I would look at the submissions. I normally invite parties to put the whole dispute on one A-4 sheet, which tends to concentrate the mind and clarify the issues. I would then call a meeting in most cases; and the way a meeting is set up – the parties come together and address the mediator highlighting the issues they want resolved. The mediator will then remove himself and the parties to different rooms. He will visit the various rooms to try to resolve the dispute.
SB: From your experience is an outcome to the satisfaction of both parties reached most of the time?
PD: I very rarely have failed to bring the parties together and get a dispute resolved.
SD: Dick, do you feel it is good to have another option here in the Falklands for people to explore if they need to?
DS: I think the biggest benefit here is that it is another option. You can’t be going into a worse situation. The more options open to people the better. We can all think of examples where – especially in a small community there is bitterness where problems have gone on for years – I am thinking in general – and ranker which undercuts today’s small society. It’s good to have a private sector initiative – Peter – working on his own – not linked to the courts – not linked to the Falkland Islands Government – there’s no political spin in this – the judiciary are not involved – it is purely a private arrangement between two people who decide. And that’s the important thing – (for heaven’s sake, Dick, take a breath) they both have to agree to mediation and they go and sit round a table – as Peter has said they actually start off in separate rooms.
Quite frankly they might not wish to talk to each other about that which is quite understandable in a lot of cases and so they talk through Peter and hopefully come to some sort of solution which they are both happy with. But the other important thing to remember is that this is a low cost option – what Peter’s fees are is up to Peter to charge whatever he sees fit. They can agree those beforehand – they can even mediate about the fees.
At the end of the day both parties have to be happy with the compromise that is reached and if they are not happy it doesn’t prejudice any of the rights they have got. It doesn’t prejudice taking that dispute on to court at a later stage. So I think it’s a good idea and one of the problems with something like ADR – Arbitrary Dispute Resolution – is the fact that it’s not going to be in Penguin News every week so the big danger is that people are going to forget that it’s available and they are going to forget to take it up.
And the one other thing that could perhaps hand over to John to talk about a little bit more is that obviously Peter will not be here forever. What we are keen to make sure of is that ADR does continue and so in that regard, over to you, John.
JT: First thing I ought to say is that we are extremely fortunate that we’ve got Peter Here as a qualified and experienced arbitrator and mediator. Looking towards the future, however, there is absolutely no reason why the Falkland Islands can’t produce their own mediators to carry on the work that Peter has started and indeed, he has very kindly said that he would be very happy to assist with training in that regard.
There are already one or two people in the community who have expressed an interest in acquiring some mediation skills and we are hoping that going forward we will be able to involve them in a training programme which will mean that we will have continuity of mediation services into the future so that when Peter is no longer working here at the hospital there will be somebody to carry on the good work that he started.
DS: Just to say that the key message is that, you know, if this has struck some sort of cord and you think that it might be worth considering mediation then please do get in touch with Val at the Courts Administration in the first instance, explain to Val what it is you would like to do, what it is you would like to try to resolve and we can take it from there.
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