A turn to alternative dispute resolution (ADR) is being recommended by alternative dispute resolution organisation as an ideal approach for reducing time and the cost of litigation in TT.
Dialogue Solutions Ltd (DSL) headed by senior counsel, Reginald Armour, issued a statement on the issue of lawyers’ fees in TT being too high. The matter was raised by dean of the Faculty of Law at the University of the West Indies, Rose-Marie Belle Antoine, as guest speaker during an inter-faith service at the Trinity Cathedral in Port of Spain to mark the opening of the 2019-2020 law term last month.
Dialogue Solutions suggested that Antoine sent shockwaves through the legal fraternity in voicing her opinion that lawyer fees in the TT “are too high.”
“While there remains much debate in the fraternity about the validity of Professor Antoine’s assertion,” DSL said, “Not up for debate is the cost-prohibitive nature of some litigation. As Professor Antoine noted, some people, despite the merits of their cases, are unable to seek justice because they simply cannot afford to do so.”
The statement continued: “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 few highly specialised companies – alternative dispute resolution (ADR)."
DSL's chief executive officer Seeraj Gajadhar said the issue is not so much the cost of lawyers, but the choices that people make in resolving disputes. Gajadhar pointed out that litigation is not always necessary and is often the most costliest and time consuming approach.
Furthermore, Armour – DSL’s chairman – pointed out that ADR in TT has the potential to positively impact the bottom line of local and international businesses.
DSL turned to 2019 World Bank figures in the report on the Cost of Doing Business in TT which revealed that it takes, on average, a staggering 1,340 days (3.6 years) for a contract to be enforced through the High Court at a cost of 33.5 per cent of the value of the contract that a company is seeking to enforce.
Not only does this negatively impact on the investment climate in TT, DSL said, “The cost of litigation is a major deterrent for all parties seeking recourse through the courts. During commercial litigation, attorney fees can carry a heavy weight of 30.4 per cent of the value of a claim, with court and enforcement fees still to be paid."
DSL noted that Chief Justice Ivor Archie, in his speech at the law term opening also made reference to an increased use of ADR strategies at the Family Court level, where almost 300 matters were referred for this alternative approach versus through the traditional court system.
In explaining what ADR is and why is it finding more popularity in the business community, legal fraternity and society at large, DSL described it as “a process whereby parties try to settle a dispute using the assistance of a neutral third person who acts as the mediator or arbitrator. 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."
DSL continued, “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."
DSL said the litigants 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 judgement that necessarily puts party on the losing side.”
The DSL statement pointed out, “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."
DSL said ADR – and the specialised companies that provide this service – prove not only to be an answer to reducing legal fees in this country, but also shorten the pathway to justice and resolution; a better business proposition all around.