Mediation in the Caribbean

by Christelle Vaval   July 18, 2011

As lawyers know, between the lengthy process and the various complexities that are inevitable within the traditional legal system, many people become discouraged with their attempts to obtain justice. As others have suggested, alternative dispute resolution mechanisms, specifically mediation, may offer the needed solution to for this lack of efficient access to justice. Rather than aiming to replace the established system, however, these mechanisms work in parallel with it.

Many non-governmental organisations here and abroad have realized the overwhelming inefficiency of the existing traditional legal system in the countries in which they are based. This is the reason many projects aiming to facilitate access to justice were created in developing countries such as Haiti, Jamaica and Congo Kinshasa.

In Jamaica, the Dispute Resolution Foundation (DRF) is an initiative undertaken by lawyers and judges who aim to offer an alternative method to access justice. It was inspired by mediation in Canada, the United Kingdom and the United States. The system of mediation and conciliation of Jamaica is involved in all areas of law (family law, criminal law, business law, etc.) and is essentially based on three pillars: justice, peace and development. As might be expected, the mediator tries to help the parties find common ground and reach a mutually agreeable solution, unlike the court system, where one party wins and one inevitably loses. Only if this procedure fails will the courts intervene in the process. If successful, the agreement between the parties shall be approved by the courts and will have the same merit and authority as a trial verdict.

Currently, the DRF provides ADR training to roughly 12 law school graduates, taking as step to ensure that some future lawyers, at least, will be trained and well prepared to advise their clients respecting mediation. 

Following the 01/12/2010 earthquake in Haiti, many residents lost their homes and now live in tented community camps. The proximity of the living quarters has unfortunately led to several robberies, sexual abuses, rapes, etc. Several NGOs arriving in Haiti realized that the victims of these crimes did not have access to any form of justice and have since tried to build a system of mediation within the camps. 

United States Agency for International Development (USAID), the US government agency providing economic and humanitarian assistance worldwide, has created the ProJustice program in Haiti and is implementing mediation in many communities in the center and in other strategic cities of the country. One of the main goals of this project is to strengthen services for non-criminal justice offered by the local Judges and to improve the capacity of legal professionals (lawyers, notaries, surveyors, clerks, bailiffs) to fulfill their mission and promote alternative means of conflict resolution, such as mediation and conciliation in Haiti (as is being done in Congo Kinshasa). 

In addition, Lawyers Without Borders (Canada) for their part recently opened their first Center of Proximity Justice and are implementing mediation in refugee camps. These centres are very important to those who need help. Their work is very similar to that of the DRF in Jamaica. 

Concern Worldwide is an international NGO, also active in Haiti and is implementing the system of restorative justice (borrowed from criminal justice). The aim of restorative justice (RJ) is to reach a peaceful solution by promoting reconciliation throughout a nation by dealing with emotions (essentially, anger, fear and pain). In order for restorative justice to be successful, both parties must agree to restore a relationship, typically meaning that the wrongdoer must apologize to the victim, which hopefully will allow the victim to start a new life and will reintegrate an offender in society.

RJ takes many varied forms. These include informal facilitation, victim-offender restorative meetings, victim-offender conferencing, family group conferencing, restorative conferencing, restorative cautions, community conferencing, sentencing circles, community panels or courts, healing circles and other community-based initiatives. The process is undertaken with a mediator or facilitator who organizes meetings with the parties to help them restore their relationship. 

I recently had the opportunity recently to meet with the representatives of all the above mentioned Caribbean institutions and realised, sadly, that these NGOs do not collaborate with one another within Haiti. Each organisation works on a standalone basis with no coordination from an overarching institution; they do not participate in any open communication with other NGOs, leading to lost lessons and, in some cases, wasteful overlaps in services.