Alternative Dispute Resolution (‘ADR’) in the Turks and Caicos has not, historically, been high on the agenda. The prospect of settling disputes away from the Islands’ courts however has been boosted by the introduction of the Court-Connected Mediation Rules 2021 (the ‘Mediation Rules’). Here we’ll consider some of the advantages ADR has over traditional litigation and look at what the Mediation Rules provide for. We’ll also consider the prevalence on the Islands of another form of ADR – arbitration.
Law firm ParrisWhittaker is a local, award-winning commercial practice. Our team on the Bahamas has many years experience advising clients on ADR and acting in complex arbitrations and mediations. We’re also available to advise individuals and businesses in Turks and Caicos who may be considering ADR ahead of formal court litigation. We’re available on 1-242-352-6110 and 1-242-352-6112 or you can always contact us online.
Why use ADR in Turks and Caicos?
Arbitration, mediation and other forms of ADR are growing in popularity across the globe. The fallout from Covid19 has only increased demand for arbitrators and mediators as a more conciliatory approach toward settling legal disputes has emerged. It would be going too far perhaps to say that Turks and Caicos is a globally recognized ADR center. But signs are that the worldwide trend toward greater take up of ADR is being reflected in the Islands as well.
ADR is often more flexible, cheaper and less public than litigation that takes place before the courts. In addition concerns about the enforceability of arbitration decisions (or ‘awards’) and mediated agreements have been allayed somewhat in recent years, instilling greater confidence in the various ADR processes. With this in mind it’s always worth considering ADR when seeking to resolve any kind of legal dispute in Turks and Caicos.
Mediation in Turks and Caicos
The 2021 Mediation Rules mentioned above represent a recognition by the Islands’ judiciary that the courts have a duty to promote settlement or reconciliation wherever possible. The rules have a wide application, covering proceedings in the Magistrate’s Court and Supreme Court (except for insolvency proceedings and certain kinds of probate cases).
Parties can request mediation themselves. If they don’t request it a Registrar, Magistrate or Judge can still refer the case to a mediator but must consider:
The relationship between the parties
Whether there is a willingness between the parties to resolve their dispute by a collaborative process
The number of parties in dispute
The complexity of the issues
Whether mediation, rather than litigation, will be more beneficial to the parties as they seek to resolve their dispute
When the mediation has concluded and some or all of the issues have been settled the terms of settlement are presented to the court. The agreed terms effectively become a judgment of the court.
Where there is no agreement the courts will normally make an order that the case continue along traditional litigation lines.
Bear in mind that parties to a dispute always have the option to begin private mediation and negotiation without any input from the court.
Arbitration in Turks and Caicos
In Turks and Caicos the Arbitration Ordinance regulates arbitration and applies to both domestic and international arbitration proceedings. Many commentators regard the Ordinance as out-dated and in need of reform. They argue that the failure to adapt the legislation to current global standards is hampering the development of the Islands as a center for arbitration.
The Turks and Caicos judiciary appears to be aware of these concerns and high- ranking judges have in recent years expressed a keen desire to embrace arbitration and update the rules.
As things stand most matters can be referred to an arbitrator and, in common with arbitration procedures around the world, parties have the flexibility to design their own arbitration procedures or adopt the procedures set out by one of the international arbitration bodies such as the LCIA.
An arbitral award can be challenged only in limited circumstances, for example where there has been misconduct in the proceedings. Parties to arbitration should therefore understand that there is a high degree of finality attaching to an arbitrator’s award.
Contact Us
Some cases will be so contentious that the use of ADR will be inappropriate. However you should always at least consider the possibility of using mediation or arbitration to settle a dispute in Turks and Caicos. We have many years’ experience in the use of ADR. For initial guidance on your case, please schedule a meeting with a lawyer at ParrisWhittaker today.
