The new Act is a testament to Trinidad and Tobago’s commitment to modernizing its legal infrastructure, offering the business community, both locally and internationally, a reliable and efficient alternative to litigation. With this modern legislation, Trinidad and Tobago positions itself alongside other jurisdictions that have long recognized the benefits of arbitration in resolving contractual and other disputes.

The Advantages of Arbitration over Litigation

The transition to the new Arbitration Act is a welcome change for several reasons. Traditional litigation processes, often bogged down by extensive delays, can take years before a case is heard, not to mention the additional time for judgments and potential appeals. This not only strains the parties involved but also contributes to the significant backlog of cases awaiting trial.

In stark contrast, arbitration under the new Act offers a streamlined and user-friendly approach to dispute resolution. One of the most notable advantages of arbitration is the limited grounds for appeal, ensuring that disputes are conclusively settled, thus providing finality and certainty to the parties involved. This feature alone can significantly reduce the time and resources spent on protracted legal battles.

Furthermore, the ability to enforce an arbitrator’s award in foreign jurisdictions under the New York Convention enhances the attractiveness of Trinidad and Tobago as a venue for international arbitration. This global recognition opens doors for international business engagements, assuring foreign investors and companies of a reliable mechanism for dispute resolution.

A User-Friendly and Efficient Alternative

Another key benefit of opting for arbitration over litigation is the flexibility and control it offers to the disputing parties. Unlike the rigid and complex Rules of Court, arbitration allows parties to choose their arbitrators, enabling the selection of individuals with specific knowledge and expertise relevant to the matter. This not only increases the likelihood of a fair and informed resolution but also enhances the efficiency of the arbitration process.

The new Arbitration Act is a clear indication of Trinidad and Tobago’s foresight and commitment to improving its legal landscape. By embracing arbitration, the nation not only alleviates the burden on its judiciary but also promotes a conducive environment for business and commerce. The Act’s modernized framework is a beacon of progress, signalling Trinidad and Tobago’s readiness to be a preferred centre for arbitration, both regionally and internationally.

Looking Ahead

As we move forward, the legal and business communities must leverage the benefits offered by the new Arbitration Act fully. By choosing arbitration, parties can expect a quicker, more efficient resolution to disputes, away from the public eye and without the exhaustive appeal processes characteristic of traditional litigation. This shift not only serves the immediate interests of the parties involved but also contributes to the broader objective of making Trinidad and Tobago a hub for commercial arbitration in the Caribbean.

The proclamation of the Arbitration Act, No. 11 of 2023, is a milestone worth celebrating. It represents a pivotal moment in Trinidad and Tobago’s legal history, promising a future where dispute resolution is synonymous with efficiency, reliability, and global compliance. As we embrace this modern approach to arbitration, we open doors to endless possibilities for growth, innovation, and international cooperation.

Divorce is a rough process and for those facing it, there is a lot of uncertainty.  It turns lives upside down and pulls families apart. No couple enters marriage expecting it to fail. It can be overwhelming when considering divorce and facing the legal process can feel devastating. The couple involved may have different points of view on issues like property division, custody of the children, or support.

What is Arbitration?

The Benefits of Using Arbitration

Choice of the Arbitrator(s)

Limitation of Appeals

What is Mediation

Mediation is defined under the Mediation Act as a process in which a mediator facilitates and encourages communication and negotiation between the mediation parties, and seeks to assist the mediation parties in arriving at a voluntary agreement. There is no universally accepted model of mediation, and there are a variety of models.

The Mediation Act defines the process as including the mediation session together with all administrative processes and procedures leading to and necessary for the conduct of the mediation and all processes and procedures after completion of the mediation session ending with the signing of the mediation agreement or, if there is no agreement, when the mediation session is otherwise terminated.

Instructive to observe that we have specific legislation for mediation, since 2004 (over 15 years now). One of the first countries in this regard.

Ethics in Mediation

Interesting to observe that under the Act the Mediation Board is required to maintain a register of certified mediators; there is a Code of Ethics, and there are Disciplinary Regulations. Mediation, therefore, is a regulated profession.

There are important provisions under the Act treating with:

•  confidentiality and non-disclosure of confidential information;
• immunity from suit for acts done or omitted by mediators in the mediation process

These are very useful for maintaining the integrity of the process and gives real comfort to the participants. In countries where these statutory protections don’t exist, one must rely on the mediation agreement – and that can be the subject of heated and uncertain litigation.

Benefits of Mediation

Mediation is recognized as a valid process; certified mediators are regulated as professionals; the process is now mainstream. In many commercial agreements, mediation features under dispute resolution provisions. A number of regulators also use mediation as an option for resolving disputes (for example under the EMA).

Mediation is seen by our Judges in the Civil Courts as having an extremely important role to play. For one thing, Courts are now increasingly being drawn into highly complex and specialized areas such as intellectual property, telecommunications, sports, construction and energy disputes. Often beyond the comfort zone of many judges and a strain on the judiciary’s burdened and limited resources.

To quote Lord Bingham:

Practitioners and judges must recognize that the complexity and range of modern government, the increasing sophistication of legal issues and relationships, the demands of representative democracy, the growth of regulation and the ever-growing interdependence of national communities make it inconceivable and impracticable that the law should depend on the decisions of the Judges alone; The Business of Judging, page 383.

Not surprisingly the Civil Proceedings Rules 1998 now puts parties and lawyers under a clear duty to help the Court in furthering the overriding objective, among other things, by making good faith attempts to negotiate and to try and reach an agreement. Mediation and other forms of ADR, including Judicial Settlement Conferences, not only have the support of the Judges – they are actively encouraged.

But the main reason I love mediation is because it is the only legal process where the parties themselves determine the outcome; It puts the parties in control of the outcome without expending vast resources on litigation procedures; It avoids the high legal costs and lengthy delays which make it difficult and expensive to resolve disputes in Court; It focuses on solutions and the realistic resolution of problems; It is adaptable.

Litigation can be very disruptive to relationships (the adversarial process fans the flames of anger and hate). After litigation, parties don’t want to see – far less have any further dealings with – their opponents. Yet a good mediator can reduce acrimony and aggression and may be able to preserve or restore relations – this allows for the possibility of maintaining satisfactory relationships.

Whereas litigation requires a winner and a loser, mediation seeks to maintain relationships and to truly resolve the dispute rather than just have it determined.

Because mediation takes into account personal needs, wants, and concerns of the parties it tends to be more holistic than traditional litigation which is confined to reaching the ‘correct legal decision’ based on the pleadings, evidence and applicable law. Everything else is irrelevant and must be vigorously excluded in Court. The aim of litigation is to reach a correct decision about the respective rights and liabilities of parties in a specific situation. The assumption is that there can only be one correct conclusion, not a range of them. The Court and the parties are limited to a judgement about legal rights and liabilities.

But mediators are not in the business of judging, or about who is right and who is wrong. The goal is getting the parties to reach an agreement – one designed to give effect to their mutual interests. The original legal issues are disposed of by the agreement as an incidental matter. The role of the mediator is helping the parties find their own way.

Harvard Law School Professor Frank Zander Pithily distinguishes the two processes by describing mediation as a future-oriented process, while Court and litigation are past-oriented processes. 20 years ago when I was trying to raise awareness about the benefits of Mediation, there was much doubt and misunderstanding about the process. Indeed, some confused it with meditation. Happily, that is no longer the case.

Just recently, in fact on 7 August 2019, 46 countries signed the UNCITRAL Convention on the Settlement of Disputes, now known as ‘the Singapore Convention’. Alongside the Singapore Convention sits a new Model Law on International Commercial Mediation and International Settlement Agreements.

So mediation is now global, and especially so in the commercial world of dispute resolution.

The Singapore Convention encourages the use of mediation as a means of alternative, and largely amicable, commercial dispute resolution; and to provide a means by which settlements reached as a result of the mediation process may be enforced in Convention States – in much the same way as the New York Convention aids the recognition and enforcement of foreign arbitration awards.

Summary

• As a process, mediation is now recognized globally as a superior solution for resolving disputes;
• Mediation can keep costs down;
• It can offer a speedy resolution;
• It allows for confidentiality to be maintained (avoiding the publicity of a court hearing);
• It lets the parties retain control over the procedure and the outcome;
• It allows for the possibility of continuing satisfactory business relationships;
• It provides the possibility of a creative forward-looking solution, rather than simply a historic one.

The 46 signatories, the highest number of “first-day” signatories ever for a UNCITRAL Convention are:

Afghanistan, Belarus, Belize, Brunei, Chile, China, Colombia, Republic of the Congo, Democratic Republic of the Congo, Kingdom of Eswatini, Fiji, Georgia, Grenada, Haiti, Honduras, India, Iran, Israel, Jamaica, Jordan, Kazakhstan, Laos, Malaysia, Maldives, Mauritius, Montenegro, Nigeria, North Macedonia, Palau, Paraguay, Philippines, Qatar, South Korea, Samoa, Saudi Arabia, Serbia, Sierra Leone, Singapore, Sri Lanka, Timor Leste, Turkey, Uganda, Ukraine, the US, Uruguay and Venezuela.

Alongside the convention sits a new Model Law on International Commercial Mediation and International Settlement Agreements resulting from Mediation 2018. The new model law amends the Model Law on International Commercial Conciliation, 2002 and its intention is to offer countries a law to reform and modernise or even enact for the first time laws governing mediation procedure. The use of the term “Conciliation” which for decades has been used interchangeably with “Mediation” has now been dropped by UNCITRAL. This simply reflects the practice in the commercial world of dispute resolution. Importantly, the model law now also includes a new section on international settlement agreements and their enforcement. It is these new provisions which are at the vanguard of the new model law, and which practitioners and legislators alike hope will lead the way in increasing the use of mediation to resolve international commercial disputes in preference to litigation and arbitration.

The Convention and the new model law’s stated aim is, of course, to encourage the use of mediation as a means of alternative, and largely amicable, commercial dispute resolution, and to provide a means by which settlements reached as a result of the mediation process, may be enforced in Convention States, in much the same way as the New York Convention aids the recognition and enforcement of foreign arbitration awards.

The New York Convention, arguably one of the most successful trade conventions in history, now boasts 160 contracting states. However, it was signed on 10 June 1958, with just 24 signatories, and came into force on 7 June 1959 following ratification by 3 states.

So the Singapore Convention begins life on a broader platform of support, and I suspect that there will be a flurry of further countries moving to sign up to its provisions in the near future, and of those that have already signed, a race to proceed swiftly to ratify it, not least those states with a need to provide a viable alternative means to resolve international commercial disputes, while at the same time trying to reduce the workload (and cost) of their domestic overburdened, publicly funded court systems.

 What is it about

Article 1 to the Convention provides that is applied to “an agreement resulting from mediation and concluded in writing by parties to resolve a commercial dispute (“settlement agreement”) which, at the time of its conclusion is international…”. “International” is also defined. The Convention does not apply to settle agreements concluded to resolve personal, family or household disputes, or those relating to family, inheritance or family law matters.2 The Convention is also inapplicable to settlement agreements which have been approved by a court or concluded in the course of proceedings before a court, and which are enforceable as a judgment in the State of that court. It also does not apply to settlement agreements which have been recorded and which are enforceable as arbitration awards.

There are two general principles underpinning the Singapore Convention, these are that the Contracting States should enforce international settlement agreements resulting from mediation in accordance with their rules of procedure and according to the conditions set out in the Convention, and that if a dispute arises concerning a dispute which a party contends is already resolved by a settlement agreement, a Convention Party shall allow the party to invoke the settlement agreement in order to prove that the matter has already been resolved3.

Article 4 of the Treaty provides the conditions which must be met to permit reliance on the settlement agreement. As with any contract or settlement agreement, there is a need to for party seeking to rely on it to prove its existence and its terms, and the Convention sets out some non-exhaustive examples of the ways in which this can be done.

Article 5 of the Convention provides a list of grounds upon which a Convention Party may refuse to enforce the settlement agreement. While particular to mediation settlement agreements, they broadly follow the principles upon which enforcement of a foreign arbitration award might be refused under the New York Convention. Grounds for refusal to grant relief include what may loosely be called seriously irregular conduct on the part of the mediator and, as a separate ground on which to refuse enforcement, a material failure by the mediator to disclose facts or circumstances leading to justifiable doubts about the mediator’s impartiality or independence. Thus, actual or apparent bias on the part of the mediator. However, and importantly, the failure to disclose must also have had a “material impact or undue influence” on a party, without which it would not have entered into the settlement agreement.

Article 8 of the Convention sets out a list of reservations including the right of a Convention Party to declare that it shall apply only to the extent that parties to settlement agreements have agreed to the application of the Convention.

So, given the limitations and safeguards written into the Convention, why is there resistance to it amongst professional mediators, especially in the US and Europe? The Singapore Convention already has its detractors.

The original 2002 Model Law on Conciliation was used as the basis of mediation legislation enacted in 33 States, covering 45 jurisdictions but its scope was limited to providing a framework for mediation agreements and the conduct of Mediation. While stating that the settlement agreement was binding and enforceable, the means of enforcement, and whether it should be mandatory, was left open.

Of concern to some mediators now are the evidentiary requirements for proving that the settlement agreement has resulted from a mediation, which requirements are set out in Article 4, 1(b) of the Convention. Two of the ways in which this can be proved are:

• By the mediator also signing the settlement agreement; or.
• By the mediator signing a document indicating that the mediation was carried out.

The settlement agreement may also be proved by an attestation by the institution [if any] that administered the mediation.

Mediators traditionally do not sign settlement agreements, nor do they make themselves available to give evidence about any aspect of the mediation. Agreements to mediate normally include terms which stipulate that the mediator may not be called in any proceedings to give evidence and that the mediator will preserve the confidentiality of the process and all information included in the mediation. Clearly the requirements of Article 4 of the Convention for the mediator to assist to prove the settlement agreement will conflict with these duties. The answer is, I would suggest, not to ditch the Convention, but for the parties to the mediation to deal with any actual or potential conflicts when the agreement to mediate is made. Article 4 of the Convention makes clear that the means by which it suggests a settlement agreement may be proved are not mandatory or exhaustive and a party may produce “any other evidence acceptable to the competent authority” to prove its existence.

The next “big issue” for those who do not support the Convention, is the inclusion in Article 5 of two grounds for refusal to grant relief, as noted above, based on the conduct of the mediator.

However, in the event that a mediation agreement was procured by fraud or undue influence, it would be susceptible to attack in any event before most competent courts. In reality, is the mediator any more at risk by reason of Article 5, 1(e):

“A serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement”

or, Article 5, 1(f):

“…a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence and such failure to disclose had a material impact or undue influence on a party without which failure that party would not have entered into the settlement agreement.”

In my view, that answer is “no”. In both cases, without any reference to the terms of Article 5 of the Convention, were such facts to be proved in a dispute about the validity of a mediated settlement agreement, the mediation agreement would be set aside by a court.

Arguably, given the evidentiary requirements to prove that the settlement agreement would not have been made but for the conduct complained of, the mediator is better protected from unwarranted attacks under the terms of the Convention. Moreover, the reality of the situation is that it will always remain the case, that a party to an ADR process, independently advised, who signs a settlement agreement, will have great difficulty persuading any competent court that it should be set aside; and that it did not genuinely reflect its intention or the terms by which it agreed to settle the dispute. UNCITRAL’s belt and braces provisions, are really not grounds to avoid the Convention. And ultimately, there is the backstop in Article 8, if parties do not wish to be bound by the Convention, it is open to the Contracting State, to provide them with a licence to agree that its terms should not apply. So where there is a desire to keep mediation wholly consensual, without state backing for enforcement purposes, there is scope for States and parties to take that position, while making it possible for those engaged in international trade who feel that the Convention is of benefit to them in their commercial dealings, to take advantage of its terms.

The world of international trade has been saying for many years that the problem with mediation and settlement agreements is the absence of an effective system of recognition and enforcement. Well, here it is and congratulations to UNCITRAL for finally bringing it all together.

While there is certainly a need for the litigation afforded by a courtroom scenario, there is a more cost-effective answer to certain cases, offered by a few highly specialised companies like Dialogue Solutions. – Alternative Dispute Resolution (ADR). Dialogue Solutions’ Chief Executive Officer and ADR expert, Seeraj Gajadhar, said the issue is not so much the cost of lawyers, but the choices that people make in resolving disputes. Litigation is not always necessary and is often the most costly and time-consuming approach.

Furthermore, Dialogue Solutions’ Chairman, Reginald Armour, S.C. pointed out that ADR in Trinidad and Tobago has the potential to positively impact the bottom line of both local and international businesses. According to the World Bank’s 2019 Cost of Doing Business study, in Trinidad and Tobago it takes, on average, a staggering 1340 days (3.6 years) for a contract to be enforced through the High Court at a cost of 33.5% of the value of the contract that a company is seeking to enforce. This not only impacts negatively on the investment climate in Trinidad and Tobago, the cost of litigation is a major deterrent for all parties seeking recourse through the courts. During commercial litigation, attorney fees can carry a heavyweight of 30.4% of the value of a claim, with court and enforcement fees still to be paid.

The Honourable Chief Justice Ivor Archie, in his speech at the Law Term opening also made reference to an increased use of alternative dispute resolution strategies at the Family Court level, where almost 300 matters were referred for this alternative approach versus through the traditional court system.

What is Alternative Dispute Resolution

But what is alternative dispute resolution (ADR) and why is it finding more popularity in the business community, legal fraternity and society at large?

In a nutshell, ADR is a process whereby parties try to settle a dispute using the assistance of a neutral third person who acts as the mediator or arbitrator, one of the many services offered by Dialogue Solutions. Unlike the case of a judge in a courtroom scenario, the mediator or arbitrator does not take the approach of imposing a decision on the parties but adopts a more balanced and problem-solving approach, helping parties come to a mutually acceptable ‘win-win’ resolution.

In addition to an approach intended to empower the parties involved in the dispute, ADR strategies also give rise to more practical benefits to individuals, institutions and nations in contrast to the traditional court system. ADR moves disputes from the public courtroom, which is subject to external scrutiny and system backlogs, to the privacy of a boardroom or neutral meeting space. In a less adversarial environment and with the help of trained mediators, parties are more likely to come to a mutually beneficial resolution of their own making, particularly as they are more able to vent their grievances directly rather than through their lawyer as they would in courtroom litigation. They have a better sense of having earned and therefore own the resolution. ADR specialists are trained to solve complex problems and listen to both sides of parties’ arguments and assist in reaching a solution in an atmosphere of mutual respect, trust and co-operation, as opposed to imposing a judgment that necessarily puts the party on the losing side.

As an alternative to the costly lawyer’s fees mentioned in Professor Antoine’s address, ADR matters are concluded in shorter order than their courtroom counterparts, vastly reducing the cost of resolving disputes.

Alternative Dispute Resolution and the specialized companies like Dialogue Solutions Ltd that provide this service prove not only an answer to reducing legal fees in this country but also shorten the pathway to justice and resolution; a better business proposition all around.

At DSL’s Board of Directors meeting of 2 September 2019 the Board agreed to appoint Reginald Armour S.C. as Chairman of the Board; Dr Axel Kravatzky was appointed the Corporate Secretary and Dennis Gurley S.C. welcomed as a new Board Member. Leslie Clarke and Independent Senator Anthony Vieira remained as founding members of the Board. Christiane Hope also continues on in her post as Business Operations Coordinator.

Seeraj Gajadhar, has been appointed the Chief Executive Officer of Dialogue Solutions Limited. Seeraj has a great deal of experience in corporate governance, business development and has a Master’s in Mediation. Dialogue Solutions is lucky to have him to take DSL to the next level of development.

Dialogue Solutions has moved into its new specially outfitted offices on 6 Scott Street in St Clair.

Call +1 868 779 7572 or visit in person