SPEECHES AND REPORTS

SCLR NEWS
NEWS FROM THE SOCIAL CONFLICT & LEGAL REFORM PROJECT
March / April, 2003

“Let’s Talk” Now Being Aired

“Let’s Talk”, the series of radio programmes developed for the SCLR project is now being aired during the Jamaica Information Service (JIS) flagship radio programme, Jamaica Magazine. The programme focuses on the Project’s two components, highlighting work that is now being done in the various areas. Let’s Talk can be heard on alternate Mondays as follows: Irie FM - 6:15p.m.; RJR 94 FM - 7:00p.m; KLAS FM, POWER 106 FM and LOVE FM at 8:30 p.m. and HOT 102 FM at 9:30 p.m.

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Peace Day Observed March 4
Peace Day, observed on Tuesday, March 4, was highlighted with an awards ceremony held at the Trench Town High School. Twenty-five students, ten teachers, as well as parents, community representatives and administrators were recognized for their outstanding contribution to the peace initiative spearheaded by Peace and Love in Schools (PALS). Some of the awards were donated by the Social Conflict & Legal Reform Project (SCLR).
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SCLR Celebrates 2nd Anniversary

The SCLR Project celebrated the second anniversary since it was launched on March 16.
After two years of implementation some of the achievements of the Project include training of over 133 mediators in each of the communities of Trench Town and Flanker. Training for teachers and students as peer mediators, has also been facilitated through the Peace and Love In Schools (PALS) programme.

In March 2002, training in Caseflow Management began for some 1500 attorneys and other justice professionals across the island to prepare them for the New Civil Procedure Rules in the Supreme Court which was introduced in January 2003. Supreme Court judges and court staff have benefited from seminars and workshops with presentations by members of the judiciary from other jurisdictions in the Region and in Canada that have developed experience in the use of case management conferences and referral of civil cases to mediation.
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Early Childhood Training Seminars held in Kingston and Flanker
A total of 16 teachers from seven basic schools in Trench Town and eight from three basic schools in Flanker benefited from a two-day training seminar held on March 10 & 11 and March 13 & 14, respectively. The training was conducted by Dr. Connie Edwards, Conflict Resolution Consultant , SCLR Project and Mr. Stewart Garwood, PALS Trainer. This is the second phase of the training programme designed to equip Basic School (Early Childhood institutions) teachers with the necessary skills to incorporate peacemaking and promote child-friendly classrooms.
SCLR NEWS 2
Some of the concepts imparted include the use of the “ I Statement” and the “ Talking Stick” in helping to solve conflicts in the classroom.
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PALS Mediation Club To Be Formed

In a groundbreaking move, 25 student mediators from the Trench Town and Charlie Smith High Schools held an inaugural meeting to form the PALS Mediation Club recently. This club will help the two communities in which the schools are situated to establish a more amicable relationship.

According to Manager of PALS, Janilee Abrikian one student ‘s comments were, “sports has caused the two schools to be in continuous competition but now the club will bring them together, and this impact will spill over into the community.” The next meeting will be a business meeting to elect officers for the club.

Mrs. Abrikian further stated that the Charlie Smith High school is planning to establish a Peace Garden during the month of April.
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Minister of Justice, Hon. A.J. Nicholson for “Let’s Talk”
The Minister of Justice, Honourable A.J. Nicholson is set to endorse the Social Conflict & Legal Reform Project on the radio programme, “Let’s Talk”. Mr. Nicholson’s endorsement is scheduled to be recorded and aired on the programme during the JIS Radio’s “Jamaica Magazine” at a later date.
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Bar Association President Addresses Mediators

President of the Jamaican Bar Association, Hillary Phillips addressed a group of mediators at a graduation held at the Peace Centre, Camp Road earlier this year.
In her address Ms Phillips called for “the gentle and kind spirit” that once characterized the Jamaican people. She challenged the mediators to use their newly acquired skills as an avenue to resolve conflicts in matters other than those which were likely to be brought before the court.
“ It seems to me that if mediation is to be used as an effective tool in nation building, we need to share these skills from an early age in the home”, Ms Phillips said.

Funded by Social Conflict and Legal Reform Project, the Dispute Resolution Foundation’s mediator training programme saw the largest number of lawyers to graduate as mediators from the intensive six-day course. The participants were exposed to both practical and theoretical aspects of the mediations process.
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SCLR NEWS 3

Ministry of Justice Receives Steno-writing Machines

The Ministry of Justice has received a gift of 22 Steno-Writing machines, valued at US$31,000, from the Canadian International Development Agency (CIDA).
The handing over ceremony was held at the office of the Ministry of Justice in Kingston where Manager of the Social Conflict and Legal Reform Project, Mrs. Loretta Reid-Pitt, presented the machines to Chief Justice of Jamaica, the Honourable Lensley Wolfe.

“The steno-writing machines will help to enhance the effort of the Ministry of Justice to improve the delivery of justice in Jamaica”, the Chief Justice said. The procuring of these machines, he added would go a far way in improving the delivery of justice in a more timely manner.

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Flanker Peace and Justice Centre Active
The Flanker Peace and Justice Centre was very active during the first quarter of the year. The Centre participated in a number of projects that benefit the residents in the community. Some of the activities include:
· Mediated in two cases, one from the Falmouth Resident Magistrate’s Court and the other with two community members.
· Staged the Conflict Resolution Expo.
· Held a Health Fair in association with the Sandals Montego Bay hotel.
· Selected new officers.
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The Trench Town P&J Centre too

The Trench Town Peace and Justice Centre participated in activities for the first quarter to help the community with its peace keeping initiative. Some of the activities are as follows:

· The administrator working out of the Trench Town Peace and Justice Centre has been coordinating community training.
· The Centre has been liaising with Trench Town Police Station to monitor mediation cases.

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SCLR NEWS 4

Things to Know

What is Mediation?

Mediation is an alternative dispute resolution process. It is a private and confidential method of resolving conflicts of all kinds while avoiding costly, ongoing legal battles. Mediation enables the parties or the persons with the dispute to participate in making the crucial decisions that affect their family, their business, and their community. In contrast, in litigation, the judge makes those decisions for the disputants.

During the mediation process, a trained impartial mediator assists the parties to make decisions that meet the significant needs of all concerned. If the parties reach a satisfactory conclusion to their matter with the assistance of a mediator, they enter a written agreement reflecting the terms agreed and do not require a hearing or trial before a judge.

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About the SCLR

The Social Conflict & Legal Reform Project is a joint Project of the Government of Canada and the government of Jamaica.
The SCLR is designed to improve the ability of Jamaicans to resolve disputes more amicably. To achieve this objective, the project aims to strengthen the capacity of distinct areas of the Jamaican Legal system and two pilot communities, Trench Town in Kingston and Flanker in St. James to manage social conflict more effectively.
The Project has two components:
· The Legal Institution Component, which is working in partnership with the Judiciary, the Bar, court administration, the DRF, mediators and other entities to solve dispute more effectively.
· The Community Component, which focuses on empowering the two pilot communities, Trench Town in Kingston and Flanker in Montego Bay through the key stakeholders Dispute Resolution Foundation (DRF) and Peace And Love in Schools (PALS).
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Graduation - Address of Louise E. Valle

Ladies and Gentlemen, dear graduates,

Let me, at the outset, express my thanks to Ms. Karen Gentles, of the Dispute Resolution Foundation who has invited me to join you here today, on the occasion of the Graduation Ceremony for the Advanced Mediator Training course. As a representative of the Canadian International Development Agency, I am proud that the Social Conflict and Legal Reform project, which we sponsor, is collaborating with the DRF for the strengthening of conflict resolution mechanisms and therefore contributing to the modernization of the justice sector.

When asked to address the graduating negotiators, I paused to reflect on what messages I wanted to leave with you, besides expanding on such truisms, as justice delayed is justice denied. I mean, we all agree, certain things are a fact, they are obvious and certain things are unavoidable: death, taxes, traffic jams, the fact that, if you move from one queue to another, the queue you have left will start to move faster than the queue you have joined. But, among those truisms is one that dictates that social institutions, which do not react to the changing needs of society, will wither and atrophy. As a social institution, the law is no different. It needs to adapt to the times.

In a society governed by the rule of law, each and every citizen will somehow, someday have interactions with the law. With the development of society, education standards of the public become higher. With the development of technology, people are better informed. More and more, people know how to strive for and protect their own interests.

The role of the Court is to deliver fair and just decisions efficiently according to the law. But the public needs to have access to the legal system. Yet, with an ever-expanding docket of cases and the limitations of the courtroom as a forum for resolving disputes, citizens have become dissatisfied with the justice system. They view it as too slow, and tending to favour those in power.

In some instances, courts have not proven particularly effective at resolving disputes. Indeed, courts sometimes serve as nothing more than a forum which parties use in order to avoid having to embark on ongoing negotiations. Parties may return time and time again to the courts as they continue to look for tactical advantages, a "winner takes all" strategy, instead of sitting down with an eye to bringing confrontation to an end.

The result is often a time-consuming and expensive process, which serves simply to prevent courts from dealing with disputes that cannot be handled otherwise. The worse case scenario is people attempting to take justice into their own hands either because their access to the justice system is limited or because they have no confidence in the system.
Poor delivery of justice erodes public trust and confidence in legal institutions and obstructs growth of social justice and economic development. Indeed, the time consuming, complex, and expensive court procedures, made justice activists world over, search for a less formal and speedier forum for the resolution of disputes, a forum providing easier access to the population in general.

To many, of course, it appears that changes in the justice sector occur at about the same speed as tectonic plates drifting over the molten plasma of the globe. I have worked on many modernization projects and sometimes, it had seemed to me that there would sooner be peace on earth long before improvements could be felt. Slow is not necessarily a bad thing. The law after all, is not an exercise in fashion, or a trend, or soup of the day. It is there to provide certainty. It is a bedrock institution. But bedrock is integral to those tectonic plates that I have just spoken of and once in a while, those plates, drifting slowly over geological ages, surprise us all when they suddenly jerk and shudder.

In Jamaica, like elsewhere on the planet, those entrusted with the management of justice have had little choice but to look at whether they were running the justice system as efficiently as they might. Weaknesses were identified and a plan of action was developed. This will to reform has given rise to important initiatives: the introduction of court reporting equipment, new procedures for case management, and the acceptance of ADR are proof that the justice sector in Jamaica is dynamic.
Now, ADR probably suffers here from being the new kid on the block - the one that everybody has heard about but not yet met. I do not consider that too much of a problem. Once introduced to the neighbourhood, once judges, lawyers and litigants know who and what they are dealing with, ADR will easily make its niche in the justice system.

The notion that people want black-robed judges, well-dressed lawyers, and fine panelled air-conditioned courtrooms as the setting to resolve their disputes in not accurate. A person with problems, like a person with a toothache, wants relief, and wants it as quickly and inexpensively as possible.

You represent an impressive variety of disciplines. I am told that among you there are attorneys, former bankers, business people, an engineer, a real estate agent, a former teacher, and a member of a human rights organization. This breadth of representation and experience highlights for me three obvious, but important points:

1. First, that ADR is not a single, agreed-upon process or model; it is many different processes that may or may not be appropriate in other circumstances and for other types of disputes;

2. Second, that there is an enormous amount of variation and creativity in this field, all of it motivated by a desire to make the resolution of disputes more efficient, less expensive, and more supportive and positive for the parties involved in those disputes;

3. And third, that there is a great deal we can learn from one another, across disciplines and across different areas of legal dispute.

We have still much to learn about the effectiveness of ADR techniques in certain situations, about the skills of those who practise ADR must or should have, about when mediation and other techniques are cost-effective; about the relative effectiveness of court-based models as opposed to those that are not part of or directed by the court, about the kind of training and education that produces public support for ADR; the extent to which ADR should be part of the publicly funded system or privately funded by the parties, and so on.

I am impressed with the willingness of people in this field to raise, examine and debate strongly these issues. I think there is an obligation on all of us who support or practise ADR to learn from these experiments, to evaluate them, and collectively to advance our understanding of each of the issues.

At the same time, I think we should always remember that the system by which people litigate did not achieve perfection before society was prepared to make a major commitment to it. By the same token, a given model of ADR does not have to achieve perfection before it can be seen as useful, or it can be defended as a valuable attempt to make the resolution of disputes easier.

As we commit ourselves to identifying what works best, we are to ensure that a desire for new, more effective models and the hunger for learning do not overshadow the need to uphold fundamental principles of justice. To quote former Canadian Supreme Court Chief Justice Brian Dickson:

"I believe those who support ADR are committed to the fundamental principles of justice that must be respected in any dispute resolution system. In fact, many of you developed a commitment to the innovative approaches you are part of because of your concern that the present system was failing to fully reflect and support those principles. This is why I believe it is possible to move forward aggressively to test and expand innovative ADR techniques without fear of losing sight of the shared goals we would all set for the resolution of legal and other disputes."

That having been said, if the right kinds of cases are channelled into ADR and if ADR functions effectively, then there is no question that it can play a useful role in promoting justice.

But it seems to me that as we round out the judicial process with other settings in which to resolve disputes, we need to be extremely careful that the values that underlie those other settings are consistent with those that have evolved over many centuries and that lie at the heart of the judicial system.

If a person facing one of the few disputes in his or her lifetime that calls for neutral third party intervention does not feel that ADR is delivering justice consistent with the norms that they have always understood to lie at the heart of the justice system, then ADR could well cause more problems that it solves. This is not a price that the Jamaican society can afford to pay - any society for that matter. If ADR is to be successful, then it must always promote the values that underlie the justice system:

- The importance of equal access;
- Reliance on procedures that promote equal treatment and dignity;
- The requirement of a reasoned decision;
- Openness to public scrutiny; and
- Use of qualified neutrals.

This also means that proper selection of arbitrators is a must for the success of ADR - for justice can never be better than the character of the person dispensing justice. Arbitrators, in addition to being fair and neutral, must be sensitive to injustice, to inequality. They should be the type who endeavour to allay suffering and frustration. They should also be available in order to be quick and not be party to slow motion justice - because, justice delayed.....

I must emphasize however that the first step to ensuring a successful application of ADR is that of proper training. The DRF has done an excellent job in providing quality ADR training. I am glad that Loretta Reid-Pitt and her team at the SCLR project have been able to provide support to the DRF. I hope that in the future, more people take advantage of the training programmes offered by the Foundation.

The participation of civil society, and by that I mean all of us, in the modernization of the justice sector will guide the sector in assuming its responsibilities and in promoting the values I mentioned earlier.

In closing, I would like to leave you with two quotations, to dispel the concept that alternative dispute resolution is a new, faddish concept, developed in the U.S. a couple of decades ago. The first quotation is from "The Charitable Arbitrator", written in 1688 by the Prior of St Pierre:

" ...to be a good mediator, you need more than anything patience, common sense, an appropriate manner, and goodwill. You must make yourself liked by both parties, and gain credibility in their minds. To do that, begin by explaining that you are unhappy about the bother, the trouble and the expense that their litigation is causing them. After that, listen patiently to all their complaints."
The second quotation is a tad more lyrical. It is from "The Lover Arbitrator" written in 1799 by Volnay. He says:

" Neither accused nor arbitrator,
I'll always be a conciliator.
Although a lawyer by profession,
To reconcile is my obsession.
And so my business always ends
With no more clients, just more friends."

Congratulations to all of you. Again, I thank the DRF for this opportunity to speak, and to meet you. Allow me to wish you every success in the difficult and very worthwhile work that lies ahead of you, starting right now and thereafter.

It gives me great pleasure to bring greetings from the Social Conflict and Legal Reform Project, a 7.5 million Canadian dollars joint project of the government of Canada and the government of Jamaica, funded by the Canadian International Development Agency, executed by KPMG Consulting (Toronto). The Social Conflict and Legal Reform Project is designed to improve the ability of Jamaicans to resolve disputes more amicably. The project seeks to achieve this objective by strengthening the capacity of distinct areas of the legal system and two pilot communities (Trench Town, St. Andrew and Flankers, St. James). The project has two components - Legal Institutions and Community.

With respect to the Community Component, the Social Conflict and Legal Reform Project is working in partnership with the Ministry of Education, Youth and Culture, Peace and Love in Schools and Dispute Resolution Foundation. Our initiatives are focused on the schools and the general communities. On our behalf, Dispute Resolution Foundation has trained 49 community residents as mediators in Trench Town and 53 in Flankers. Peace and Justice Centres are being established in those communities. The Centres will not only serve as venues where trained mediators will offer their services to members of the community, but as resource centers where community residents can access information and services offered by other stakeholders that can meet some of their economic and social needs that are not directly addressed by this project. In February 2002, the Flankers Peace & Justice Centre was launched at a temporary venue. We expect to launch the Trench Town Peace & Justice Centre in the near future. You are invited to visit the centres and to support the services offered there.

Your training in preparation for this graduation exercise has been funded under the Legal Institutions Component of the project through which we are working with legal stakeholders such as the Dispute Resolution Foundation, the Ministry of Justice, the Chief Justice, the Supreme Court, Resident Magistrates, the Family Court, Justices of the Peace or Lay Magistrates, the Jamaican Bar Association, the Advocates Association, the Norman Manley Law School, and others. The new Civil Rules of Procedure will provide for case management, computerized docket management, and cases being referred to mediation. The Social Conflict and Legal Reform Project is providing funding for these initiatives as well as a backlog reduction project, training for judges, court staff, attorneys-at-law and a public education programme.

You are the first group of law students who have completed Dispute Resolution Foundation's 40-hour mediator's course under the Social Conflict and Legal Reform Project. This is an important milestone not only because you will soon join the other batches of attorneys who have been trained and who will be trained under the SCLR Project. Your accomplishment is important because while you will bring value to your role as mediators in view of your legal training and experience, at this early stage in your career you have not yet adapted certain views, approaches, attitudes and positions which would otherwise have to be re-tooled or re-learned to allow for your greater effectiveness in the role of mediator or as attorneys representing your clients in mediation.

David Mellor, a British Conservative politician is attributed with the statement that "Lawyers are like rhinoceroses: thick skinned, short- sighted, and always ready to charge." Also, Arthur Garfield Hays is quoted as saying "When there is a rift in the lute, the business of the lawyer is to widen the rift and gather the loot." Surely, it is premature for these views to apply to you, if at all.

Indeed, your willingness to commit the time to take this course the week after your second year final law exams, suggests your commitment to the availability of justice and acknowledgement that alternative dispute resolution processes such as mediation are avenues to justice, as well as trial before the court.

While I understand that a primary motivation for some in completing this course may be to qualify oneself for the new order in which attorneys will function once the new Civil Procedure Code is effective, allow me to expound to you the position that our receptivity to alternative dispute resolution is not merely a question of "bread and butter" but of "life and death".

Why do I consider conflict resolution skills as a "life and death" issue? A significant percentage of violent crime, especially domestic violence that results in wounding or death, arises from disputes in which the parties resort to violence. Sometimes when the parties involved step back from the circumstances and examine the issues that led to the incident, they realize that the outcome would have been much different if they had skills or assistance in conflict resolution.

As you have learned this week, you as mediators will participate in a process whereby will you be a neutral party who will use facilitative skills to assist persons with a dispute in reaching a resolution to their dispute, which they, the parties or disputants create and which meets their interests or concerns as defined by them. Because they fashion the solution, they are more likely to find it satisfactory and to be willing to possibly give up the individual "rights" or "legal entitlements" for the sake of a fair, workable, and sustainable solution.

Mediation and other alternative dispute resolution mechanisms are needed here in Jamaica so that the following assessments will no longer be true. The Executive Summary of the Police Executive Research Forum (PERF) in referring to the criminal justice system stated "The Jamaican courts do not rely on plea bargaining or alternative dispute resolution methods to help reduce caseload. Therefore, the court system is bogged down with an enormous backlog of cases." Because of their relevance, I am going to borrow the words of Former Chief Justice of the High Court of Australia, Sir Gerar Brennan during that country's crisis in the administration of justice which led to the incorporation of referral to mediation in more than 100 statutes," the courts are overburdened, litigation is financially beyond the reach of practically everybody but the affluent, the corporate or the legally-aided litigant."

I commend you, graduates, on completing the first level of mediation training. I encourage you to complete your journey towards certification by doing your required observation and supervised mediations. Also, register for the advanced course that will be offered under the sponsorship of the Social Conflict and Legal Reform Project and acquire as much mediation experience as you can. Take advantage of every opportunity to exercise the skills and techniques you have learned: at home with your families, in your communities, and as volunteers in various social settings -- school, church, and service and civic groups.

You, graduates, have a vital role to play as we as citizens, legal professionals, parents, and role models, improve the way that we relate to our conflicts, as we improve the society in which we live, and as we improve Jamaica's self image and image abroad with positive consequences for the Nation.

May you bring your best skills to bear and may God give you the Wisdom of Solomon as you assist others to reach amicable solutions.
Former Chief Justice of the Supreme Court of the United States, Warren E. Burger stated in speaking about the way in which attorneys are regarded that "Doctors still retain a high degree of public confidence because they are perceived as healers." And he asked a series of questions: "Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?

You graduates are poised to be healers in your roles as attorneys and as mediators. The justice system and the Nation are counting on you.

Again, congratulations on your accomplishment.

A little over five years ago I was a member of the St. Vincent and the Grenadines Bar. Like other lawyers I jealously guarded my independence, my professional space. Like many of my colleagues I too was very concerned whenever there was talk of new decrees or rules or Acts of Parliament or any other such matter emanating from those lofty regions which might impact upon the way in which I made a living.

I mention all of this because I want to impress upon the lawyers here present two things. The first is that I believe I understand the instinctive reaction of many lawyers to the idea that new Civil Procedure Rules are being considered. Especially so, new Rules that will result in a radical change in the manner in which litigation is conducted.

The second thing I wish to urge on you is that ( ……… in typical legal fashion this is a disclaimer…………) I address you today not as a Salesman. I am not asking anyone to buy into any proposed rules. Indeed, if you do have draft rules I have not yet seen them. I do not see my role here as being one of convincing anyone to adopt this or that course of action. Indeed, it would be quite presumptuous of me to attempt to do so. What I wish to do is to share with you the experiences to date of our Court and practitioners in the implementation of our CPR 2000 and the transition from the old to the new.

Our civil litigation system in the OECS has been in crisis for many years now. In many respects it still is. Litigation was carried on at a pace that resulted in horrendous backlogs. In some parts of the jurisdiction a civil case took 7, 8 and more years to come on for trial. This was not a problem that was caused by insufficient judges. In the OECS we have a relatively high ratio of High Court Judges per population: approximately 1 judge to every 50,000 persons. This was a problem rooted in the system of litigation.

One of the by-products of the old system of litigation was a fair amount of wastage of judicial time. Many cases for example were settled on the first morning of the trial. Typically what would happen is that the lawyers would only very seriously examine the pros and cons of their client's case when they were preparing to argue the same in court ie about two or three days before the trial. Then they would recognize that in truth, their client might be better off making or accepting a settlement offer. Counsel on the opposing side would be carrying out the same exercise at the same time. On the morning of the trial therefore Counsel would ask for time to hammer out a settlement. By 10.15 a consent order has been made by the judge. The judge then has little to do in court for a day or two because this case had been scheduled for two or three days.

Unacceptable delays in the administration of justice were not unique to our jurisdiction. Other common law jurisdictions have been plagued by the same problems. Some of these jurisdictions determined that what was required was an entirely new set of rules. A band aid approach was not going to do the trick.

With the assistance of Judge Richard Greenslade, we embarked upon the process of fashioning new rules. Judge Greenslade is an international expert on civil procedure rules. He has enormous experience in this field. He was a member of the Wolfe Commission on Access to Justice. After engaging in several rounds of consultation he produced a comprehensive rough draft in 1998 that was widely circulated for discussion. A Rules Revision Committee comprising members of the private and public Bar, Attorneys General and judges was established to go through the rules Part by Part.

In the mean time, preparatory work was commenced in smoothing the path for new rules to take effect. Ours is a court of six independent countries and three British Dependent Territories. Changing the civil procedure rules effectively meant altering the laws of all these countries. There were delicate consequential legislative issues to address. Accordingly, a Canadian Department of Justice Consultant, Ms. Sharon Walter, spent several weeks with us seeing to these matters, working closely with the OECS Attorneys General and the OECS Secretariat's Legal Counsel.

We were also required to strengthen and make more efficient our overall court management. To this end a USAID Consultant, Mr. Robert Lipscher, also spent a number of weeks with us working on this side of things, getting the court offices ready and devising and streamlining administrative processes.

We ensured that our registrars and senior personnel in the court offices receive training in court management. We also created the new office (new for us that is) of Master. Two were appointed in July, 2000. Before they embarked upon their work they received extensive training in Ontario and there, they were able to gain valuable experience in case management techniques.

A thorough inventory was taken of the files in the Registries (we now refer to our Registries by the more appropriate term "court offices"). In the course of this audit we discovered a surprising statistic. Of the cases filed annually in court in less than 20% of them were Defences filed. This was a very significant discovery. It meant that the court's adjudicative role extended to far fewer cases than we once perceived.

I must pause at this point and state that this process was not one of plain sailing. There were those who were sceptical of this attempt to tamper with the only rules that they had ever known and with which they felt comfortable. As an aside, I think I can safely state that with all change there would be those who lead the same, those who are carried along by it and those who resist the change, some to the bitter end. We did meet some resistance but we pressed on.

Fortunately, like you here in Jamaica, we are blessed with a very dynamic and pro-active Chief Justice. His personal leadership and influence were critical to the process. Those members of the Bar and the judiciary who recognized the need for change and who were prepared to embrace or keep an open mind in relation to the particular changes being suggested were identified and encouraged to play an active role in the process. Every opportunity was afforded the Bar and the various Attorneys General to play a meaningful role in the process. Our jurisdiction spreads from Anguilla in the North right down to Grenada in the South. Organising face to face meetings are difficult for us because of the huge air ticket and accommodation costs involved. That did not deter us. Technology today is too far advanced for us to have allowed that circumstance to get in the way.

We utilised the services of UWIDITE. Every Saturday morning for several weeks judges, AGs, registrars and lawyers would huddle together in the respective University Centres of each island and we would painstakingly go through the draft rules. We would note the manner in which some of the rules introduced substantial innovations. We would have the innovations explained, suggest amendments, voice concerns and so on. On occasion we even had the operation of some rules illustrated through role play……..all this via audio distance technology. The process of consultation was far more extensive than had ever been previously undertaken.

Our Masters commenced work in October of last year. This was before the new rules were deemed to have come into effect. The immediate role of the Masters was twofold. Firstly they undertook the traditional role of a Master by hearing most Chamber applications. The objective here was to free the judge of as much of this type of work as possible since our estimate was that approximately 25% of the judge's time was spent dealing with such matters.

Secondly, the Masters involved themselves in reducing the court offices of dead wood i.e. cases that were simply lying there, lifeless, but which cases had not yet been actually pronounced dead. In each island there were scores and scores of them. There were cases where the plaintiff had been satisfied but no one ever thought to file an entry of satisfaction; cases where the matter was settled out of court but no one could be bothered to have a consent order recorded; cases where the litigant had simply abandoned or informally discontinued the proceedings, perhaps because he or she had emigrated and had no wish to return, or perhaps because the litigant was entirely disenchanted with the slow pace of the wheels of justice. There were all these cases that were still in the system taking up valuable space in the court offices, gathering dust and still on the books as being active.

In relation to all these files the Masters separated the living from the truly dead. They would fix dates for a status hearing on these matters. On the hearing dates the cases were struck out unless there was representation made to satisfy the Master that the case was not dead but merely in blissful hibernation. In the rare instance of a case merely in deep slumber, unless orders were made to get the case moving.

Hand in hand with the process leading towards the introduction of our new rules went another ambitious and very important programme, the computerisation of the operations of our court offices. That project is still proceeding although unfortunately, not at the pace at which we would like. Outside of the Court of Appeal offices, we do not yet function in a live environment. Nonetheless in many of the islands most of the cases have been entered on the system. The software for this programme complements our new rules and places the court in an excellent position to manage and monitor cases. But today I prefer to speak not of hardware and software but rather of our new rules.

Before proceeding further though I must indicate that, as you may well have already grasped, the scope of what was involved in producing, promulgating and implementing our new rules went beyond the capacity of the judiciary. An indispensable condition for success was the active support of the executive branch of government. With the court now bearing the burden of managing the cases, new and additional responsibilities have been placed on the Registrars and the court office staff. New staff members have therefore had to be employed. In many instances, the physical space available for the court offices to function had to be enlarged. I earlier mentioned the creation of the offices of Master. The Masters had to be provided with all the necessary facilities and amenities, not to mention compensatory packages, that were appropriate to their office. At the level of the Head Quarters of the court, to support the reforms, we have had to employ on a permanent basis experts in Accounting, Information Technology, Human Resource development, and network Management.

In all these respects it was essential for the executive branch of government to recognise the importance of the reforms that were being undertaken and the value of those changes to the fabric of society. They were being asked to come up with the funds to make it all happen. It speaks volumes for the enlightenment of our political directorate that they fully and promptly supported, by word and deed, our reform package. We in the judiciary have been very pleased with the response of the various governments.

Our new rules, styled CPR 2000, were adopted as of 31st December, 2000. They are embodied within this very impressive tome. My colleagues and I joke that you wouldn't want to get Counsel too angry when he is on his feet with one of these in his hand. There was a transition period between 1st January, 2001 and 30th June, 2001 but the rules came into operation fully from September of this year.

During the period of transition we made efforts to reduce that part of the backlog that related to matters still alive and kicking. In St. Lucia we were fortunate to have the services of my dear friend from Cave Hill and a graduate of the Norman Manley Law School, Mr. Justice Dennis Barrow, S.C., who had a temporary stint in that island as a High Court judge between January and July, 2001.

A great amount of progress was made principally by Justice Barrow during this period. In those seven months, by using case management type powers, he was able to eat into the backlog so that we now envisage that by this time next year if we continue at the same rate, we should have entirely cleared the backlog and be current with the new cases filed.

What are some of the principal features of our new Rules that distinguish them from the old Rules? Part 1 is the most significant. It states that the overriding objective of the Rules is to enable the court to deal with cases justly. Dealing justly with the case includes striving to place the parties on an equal footing, saving expense and dealing with the case in a manner proportionate to the amount of money involved and/or the importance and complexity of the proceedings. Dealing with the case justly also means ensuring that it is dealt with expeditiously. It means allotting to the case an appropriate share of the court's resources. This rule also imposes a duty upon the parties to help the court to further the overriding objective. Part 1, the overriding objective, sets the tone and provides the backdrop for the remainder of the rules.

Upon going through the rules, perhaps the very first thing that would strike the reader is that these rules are written in an easy, simple, language. Each Part is very explicit in what it says. You do not need to have a law degree to have a very good understanding of what the rules require of you. Some of the learning that previously could only be found in the White Book is now embodied in the rule itself in straightforward, sometimes, I find, slightly repetitive language. The mode of commencing proceedings has also been simplified. There are now only two modes. Gone are your Petitions and Summonses, Writs and Motions. They have all been replaced by Claim Forms and Applications.

This simplicity and user-friendliness also characterise the Forms that accompany the rules. For example, a Claimant who serves a claim form (some months ago we would speak of a plaintiff who serves a writ) such a litigant must also serve on the defendant a number of forms that would aid the defendant in acknowledging service or disputing the claim or indicating a willingness to settle the whole or a part of the claim. An unrepresented defendant is therefore in a much better position to advise himself or advise counsel on the steps that should be taken in light of the commencement of proceedings against him or her.

In my view however, the two features that really differentiate these rules from the previous rules are that firstly, these rules have made litigation more open and transparent and secondly the justice system is now court driven as opposed to being attorney driven. From the time a defence is filed in a suit, the clock starts running. The court immediately takes over the management of the case.

This is a fundamental departure from the old rules. Under the old rules, after a Defence was filed it was left to the lawyers to determine if and when to seek particulars, or to file a reply or whether to apply by summons for directions, or to request a hearing. The court sat back and waited on the lawyers. If the lawyers on either side made no move to get the case going in a timely fashion or at all, the court felt itself powerless to intervene. The idea was that this was the parties' dispute in the hands of their lawyers. The court was there meekly to serve their interests.

That inertia on the part of the court has come to an end. The general rule now is that the court office must fix a case management conference immediately upon the filing of a defence. If the case was instituted by either what we used to refer to as a Motion or by an Originating Summons, then on the first hearing date the court can exercise all the powers of a case management conference. The idea here is that the court has a vested interest in the just and expeditious disposition of the case and the onus is on the court to ensure just that. The parties and their lawyers must cooperate with the court in achieving that objective.

It is very important that the litigants personally attend the case management conference. That conference provides an early opportunity for the parties and their counsel to get a hearing before the court. The case is placed before a Case Management Judge who proceeds to strip it bare. The presiding judge seeks to get at the core of the dispute between the litigants. All of us here with experience in the courts would know that divers motives prompt persons to institute legal proceedings. The concept that some people have of justice is not one that can be always be fully satisfied with damages or restraining orders or other orders made by a judge. Some plaintiffs don't want such relief as much as they want an acknowledgment that they have been wronged. Some people simply crave an opportunity to explain their position to an impartial arbiter. Some don't really want to go into Open Court to prosecute a former friend or a family member. As an aside, I remember once when I was in private practice, I appeared in a matter as Sir Henry Forde's junior (he was not yet knighted). After Mr. Forde had cross-examined the defendant and clearly made him out to be a liar on the witness stand, our client said to us that evening that she was fully satisfied. She didn't care any more whether the case was won or lost!!

The case management conference therefore affords an opportunity for the court to really dispense justice. For this purpose, the court has enormous powers. These powers include (and I shall only list a few) actively encouraging and assisting parties to settle the whole or part of their case upon terms that are fair and just, dealing with as many aspects of the case as can be dealt with on that occasion, encouraging parties to use any appropriate form of dispute resolution, fixing timetables so as to control the progress of the case, and making appropriate use of technology.

The case management conference is such a focal part of these rules that perhaps I should spend a little time talking about it. I have not done a great many for two reasons. Firstly, our rules have only very recently been introduced. Secondly, we do not wish the judge trying the case (if it eventually goes to trial) to be the same judge who would have done the CMC. In an island with two judges, there would always be at least a 50% chance that the case would end up on the judge's hearing list. Our Masters therefore handle most of our CMCs.

I have however done a few and I can tell you what are some of the orders I have made. I have ordered particulars to be given, struck out pleadings (we now call them statements of case) and entered judgment or ordered that the statement of case be amended. I have encouraged parties to seriously consider settlement and ordered that witness statements be filed and be used at the trial in lieu of examination in chief. I have fixed timetables for the progress of the suit: Witness statement by such and such a date; Land Surveyor's report by such and such a date; Skeleton arguments and lists of authorities to be used by this date and so on.

In August of this year, Master Pemberton (who has done a fair amount of case management throughout the length and breadth of our jurisdiction) presented a report to the full judiciary on her experiences to date as a Master. I think it is useful to quote verbatim from that portion of her report that addressed CMCs. This is what she said in part
"Both Practitioners and lay-persons have expressed how valuable Case Management Conferences have been. Practitioners have opined that they are tending to approach practise differently in terms of collecting instructions, considering whether to file matters, style of pleadings to be utilized, techniques to be used in drafting and consideration of legal issues at an early stage. Attorneys are actually coming forward to put matters on the list for Case Management with a view to the streamlining of their matters. This can only mean that the OECS Bar has recognized the value of the reform process and have put their shoulders to the wheel to make it work and prosper. For the litigant, the feeling is that something is being done about their matters. The Master's Court operates informally at a certain level and quite often, we have found ourselves in the role of mediator as parties try to resolve and settle their matters. We think that this has raised the confidence level of the public in the legal system."

Exercising the case management powers of the court was crucial to reducing the trial backlog. Earlier I alluded to transparency as a fundamental feature of the new rules. Having witness statements stand as evidence in chief considerably enhanced transparency and substantially reduced the length of trials. Everyone, including the judge, has all the evidence in chief, the skeleton arguments and the cases to be relied upon days before the trial.

When I sit to try a case that has been case managed I know precisely what facts are at the centre of the dispute. I know what evidence the parties are relying upon. I have also been provided with all the law the parties intend to cite. At the hearing I only need to focus on the cross-examination of the witnesses and to require counsel to explain, clarify or elaborate upon certain points of law. Not infrequently I am in a position to render an oral judgment immediately after Counsel have addressed. When I exercise this option, as I often do, I tape record my oral delivery and I make it clear that in the event that a written decision is required I reserve the right to amplify on the oral reasons for my decision. I can tell you that, without in any way compromising the course of justice, in this fashion we have been able to dispose of, in less than one half of a day, cases that otherwise might have taken two days to be completed.

The quotation I used from Master Pemberton above made mention of the attitude of the OECS Bar towards the new rules. I wish to give you my own first hand experiences in St. Lucia.

In January of this year I was still assigned to Anguilla. The Rules Revision committee sponsored a conference, very similar to this one, for the Saint Lucia Bar on the new rules. I traveled to Saint Lucia as one of the presenters. We also had a Master and an attorney from Ontario presenting. There was a reasonable turnout of attorneys. Not large but representative. From the response to the presentations and the questions asked I was in a good position to assess the attitude of the Saint Lucian Bar towards the presentations and the adoption of the rules.

On the whole I found the lawyers to be sceptical. Precious few welcomed the new rules. Many thought that they could not work. Some questioned the need for any new rules. They thought that the old rules simply had to be applied in a more purposive manner and the system would improve. Some, it seemed to me, had not bothered themselves to read the rules at all. I was a Salesman then. But I left that meeting with the distinct impression that there was not a heavy demand for what I was selling.

It so happened that in May, just 4 months later, I was re-assigned to St. Lucia. In the interim Justice Barrow had been applying Case Management techniques to reduce the backlog. When I arrived in St. Lucia in May, I found an appreciable shift in the attitude of the lawyers towards the new regime. The younger attorneys for the most part had embraced the change. Gone was the scepticism I had witnessed in January. The older practitioners were going along and in my view a new professional ethic is emerging from among the lawyers.

What do I mean by a new ethic? Well, it is now not unusual for me to be informed that a case set down for hearing in a week's time has been settled and that on the hearing day the parties intend merely to record a consent order. I think this is significant not because it demonstrates that the lawyers are making greater efforts to settle cases. Some suits have always been and always will be settled. I think it is significant because it illustrates the fact that the users of the court system appear now to be more conscious of the value of court and judicial time.

Some weeks ago, as I was about to embark upon what appeared to be a hotly contested application for a restraining order, I was surprised to hear from the lawyers that the parties had agreed to submit their dispute to mediation. This was significant because while our rules provide for mediation and other forms of dispute resolution, the court has never referred any matters to mediation. There is a simple reason for this. We do not have a corps of trained mediators throughout the OECS. It is an area that we are presently working on and in fact your Ms. Donna Parchment was a part of a team that conducted a mediation conference for our judges and Masters in August of this year. In St. Lucia however, there is one trained mediator, a practising lawyer. The parties in my matter had voluntarily agreed to refer their dispute to her.

I am convinced in my own mind that one year ago these same lawyers would not have considered the steps mentioned above. If the parties had settled their case the chances are that the lawyers would have waited to inform me of the settlement on the morning of the case. As to the mediation referral, a year ago that would not even have arisen. If my analysis of these and other similar incidents as being indicative of the emergence of a new ethic is correct then this circumstance belies the notion canvassed early on by detractors that all that was needed was to beef up the old rules.

The lawyers have expressed reservations about some aspects of the new regime however. Their work is now front loaded. In other words, most of their preparation takes place by the time of the CMC. This is unavoidable. At the CMC the lawyer has to know her case inside out or else she risks having costs ordered made against her personally or against the client. You simply cannot afford to attend a CMC under-prepared. The judge will discover that you are. You cannot send junior counsel who knows little of the matter. Counsel who is arguing the case must attend with the client so that important decisions can be made there and then.

Some lawyers have complained that front loading the work has meant that whereas in the past their clients could pay fees by instalments spread over a long period, now, the client needs to find much of the fees up front or in quick time after first consulting with the lawyer. We live in poor societies so I need hardly say more to illustrate the dilemma.

The lawyers have also said to me that their hours of work have increased substantially because they now spend much longer periods of time with the client, preparing for the CMC, drawing witness statements, taking instructions after receiving the witness statements of the other side and so forth. These longer hours translate to higher fees and some feel that the objective of the rules to lower costs has not been met.

Personally, I think we will have to allow matters to run their course for a longer period before we can arrive at that conclusion. I remain optimistic that in time, as practitioners become more familiar with the new regime, this particular complaint will abate. What is significant is that even those who voice this concern are on the whole still happy with the new dispensation.

Sole practitioners have also come under severe pressure especially now that we are also dealing with reducing the backlog and I believe such practitioners in the OECS will now have to ensure that they employ well trained and experienced para-legals in their Chambers.

The Registrars are the ones who in my view are most heavily burdened by the reforms. Onerous responsibilities have been placed on them. We have therefore gone out of our way to employ court management experts to streamline our court office processes. Additionally, when our software is fully up and running, many of the case management tasks of the court offices will be automated. The rules also make provision for relieving the Registrars of some of their traditional roles. So it is that they no longer tax bills of costs because the rules provide formulae for arriving at costs. On many occasions as well, before the rules were fully in operation, Justice Barrow and I would obtain agreement from the lawyers as to what costs should be ordered before the lawyers gave their closing arguments.

Another area in which the work of the Registrars has been lightened is in the settling of orders. Our rules aim at the settling of orders as soon as an application is heard. Lawyers are required to come to Chambers with a draft of the order they wish the court to make. The court then settles the order right there and then immediately after the application is heard. In fact, even as I speak to you, technicians are installing computers and printers in all our court rooms in order to facilitate this process.

It is still too early for one to fully assess the impact of our CPR 2000 on our civil justice system. In some respects we are still feeling our way. As I mentioned, our software package is not yet fully up to speed. Due to the peculiarities of our Court, one whose tentacles extend throughout a number of territories throughout the Eastern Caribbean, there is not uniformity in the manner in which the rules have been implemented. Our Chief Justice has recognized that it is absolutely imperative that we continue to monitor the implementation, interpretation and application of the rules. To this end we have already established a standing committee for this purpose.

All the indications are however that the new rules have had a positive and beneficial effect on our civil justice system and I think it is fair to say that practitioners and the general public are pleased that we have adopted them.

It gives me great pleasure to bring greetings from the Social Conflict and Legal Reform Project, a joint project of the government of Canada and the government of Jamaica, funded by the Canadian International Development Agency, executed by KPMG Consulting (Toronto). The Social Conflict and Legal Reform Project is designed to improve the ability of Jamaicans to resolve disputes more amicably.

Today's proceedings mark an important milestone for the Social Conflict and Legal Reform Project and the Project's key implementing partner Dispute Resolution Foundation with the assistance of our partner Sandals Montego Bay who has hosted the training sessions --- the successful completion of the 40 hour course for mediators. The 53 persons being recognized this afternoon will be members of a core group of persons trained in mediation and conflict resolution techniques who will provide services to members of the Flankers, Ironshore and Providence communities through the Peace and Justice Centers to be established in Flankers with funding from the Social Conflict and Legal Reform Project. The graduates will also have the opportunity to provide mediation services to members of other communities.

I commend you, graduates, on completing the first level of mediation training. I encourage you to further your training and to acquire practical experience. Take advantage of every opportunity to exercise the skills and techniques you have learned: at home with your families, in social settings, school, church, and civic groups.

There is a better way for us to resolve disputes. You, graduates, have a vital role to play as we improve the way that we relate to our conflicts, improve the society in which we live, and improve Jamaica's self image and image abroad with positive consequences for the nation.

May God give you the wisdom of Solomon as you assist others to reach amicable solutions. Again, congratulations on your accomplishment.