Alternatives to Court
Court can be intimidating and complicated. Unfortunately, litigation is usually an expensive and time-consuming process. Civil cases may often last anywhere between 2 to 5 years. It’s usually not possible to predict how long a case may take to progress through the court since it’s dependent on how the case is defended, what the parties decide to do and the individual judge’s schedule.
These include mediation, arbitration and negotiation. Mediation will be the focus of this page since arbitration usually arises from more commercial proceedings since hiring an arbitrator may be an expensive process and legal representation also usually happens and negotiations is widely understood and may occur in any proceedings between the parties' lawyers or, even when represented, the parties themselves. If you do have any questions about arbitration or negotiation generally, reach out to us!
For any specific advice, you should contact your lawyer. If you don't already have a lawyer, you can read more about choosing a lawyer here. In all cases, no matter how you decide to resolve your dispute, remember that the limitation period applies. This is the period in which you can file Court proceedings so if this time ends whilst you've been mediating or negotiating (without a Court action having been filed) you may be barred from filing at all. You can read more about limitation here.
Mediation may be a simple alternative which you can explore before you reach the Hall of Justice. Here are some key points about the process:
mediation is a voluntary process. It can take place either before a claim is filed in court or after. If it happens after, you may also have the option of having your claim referred to a Judicial Settlement Conference where a different judge acts as the mediator (this is not always available since it depends on the judge's time). You can also pursue mediation privately if you’d like at this stage.
since it's voluntary, both you and the other party must agree to mediate the dispute.
an independent person is agreed to by the parties to try to discuss the issue and to attempt to bring about a resolution to the issue.
this independent person – the mediator – is usually a trained professional but can also be community or religious leaders or elders within the community.
they are not a judge; they are not there to decide who is right or wrong. They are there to work with both of you to reach an agreement. Because there's no right and wrong, neither party will 'win' but the goal is to find a satisfactory solution which appeases both parties.
with that said, there are three broad types of mediation, evaluation, facilitative and transformative.
First, in an evaluative mediation, the mediator will try to help the parties reach settlement by evaluating the strengths of their case and how they would play out - for example, in an evaluative mediation, a mediator may not facilitate an favourable settlement to one party where that party has the weaker case. An example of an evaluative mediation would be Judicial Settlement Conferences.
Second, in a facilitative mediation, the strengths of the respective cases are less important but the mediator will try to help the parties reach a settlement which will satisfy them both.
Third, in a transformative mediation, the mediation is more likely to focus on the parties and the nature of their relationship itself. This type of mediation is less likely to employed in every case but is more probably appropriate where there are non-commercial relationships between the parties - such as between siblings or family members. It is probably less likely appropriate in commercial cases or those involving businesses or transactions.
the parties control the process – there are no rigid rules to which parties must adhere. Mediation is informal and can adapt as the discussions develop and the process continues.
because its informal, you can avoid the suits, robes and reams of paper that you’d otherwise encounter in court.
mediation need not be face to face but may take place by Skype, Microsoft Teams, Zoom or by telephone. Unlike court, mediation is flexible and can adapt to your schedule.
because the parties drive the process, mediation is often faster than court.
mediation is far less expensive than litigation and parties typically split any costs 50-50.
mediation is not about ‘winning’. It’s focussed on the parties working together to find a solution. This does mean you should be willing to compromise and engage with the person with whom you’ve the issue. This means that you’ve got to keep an open mind and focus on what you want to get out of mediation. That should be the standard to which any potential resolutions are compared.
Finding a mediator
As we said, although professional mediators are trained and registered with the Mediation Board of Trinidad and Tobago, you may find your national bodies, community or religious elders carrying out similar services. The Ministry of Sport and Community Development is one such example and you can learn more about their mediation services here. Many business chambers and dispute resolution services offer professional mediation services. Other community organisations may also offer mediation services to persons within their respective communities.
You can of course approach these persons to perform your mediation but remember that because mediation is voluntary, the other party not only needs to agree to mediation but also needs to agree to the particular mediator.
Before you start...
Collect all relevant documents and have an idea of what you’d like to get out of mediation as well as the least that you’d be willing to accept as settlement.
Mediation can be in respect of any sort of issue. Settlements are not restricted to a monetary agreement. The parties control the process. If you've more creative solutions, suggest them!
The only thing that you must keep in mind is that civil actions are generally subject to a 4 year limitation period, which starts once the cause of action (the set of facts which give rise to the claim) arises. Limitation periods essentially set an expiration date by which you must file your claim. If you don't, any action filed after the relevant limitation period has expired may be struck out or dismissed.
Neither mediation nor any other form of alternative dispute resolution has the automatic effect of extending the applicable limitation period. You are still bound by the limitation periods set out by the Limitation of Certain Actions Act, the Real Property Limitation Act and the other relevant laws.
You should obtain professional advice as to when the limitation period which applies to your dispute expires since this depends heavily on the type of action, the specific facts of the matter and even the temporary suspension of limitation periods enacted after the outbreak of COVID-19. Because of the severe consequences of failing to file proceedings before the relevant limitation period expires, if there is an unresolved dispute, seek advice immediately.
Check out our page on choosing a lawyer here.
Last updated: 12 November 2022.