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Back to Revised Laws of Saint Lucia (2023)

PART 1

Mediation

1. Mediation is a private, informal alternative dispute resolution process by which the parties with the assistance of a neutral third party called a mediator try to reach a voluntary agreement on the matter in dispute and to end the conflict.

2. Mediation is justifiable when:

(a) here is a written agreement to submit conflicts to mediation;

(b) At least one of the parties requests mediation;

(c) notwithstanding sincere or “good faith” effort to amicably resolve the dispute the parties have failed to arrive at an amicable settlement.

3. The parties may agree to exclude or vary these paragraphs at any time.

4. (1) A mediator may be selected in any of the following ways:

(a) The parties to the dispute agree on the name of a sole mediator to mediating between them; or

(b) Where the parties are unable to agree on a sole mediator each party shall nominate a mediator. These mediators shall act as co-mediators during the mediation proceedings; or

(c) In the event that a mediator is not selected in accordance with paragraph (a) or (b) the Commission shall select a Mediator (2) Once selected, the Commission shall appoint the Mediator.

5. (1) The Commission shall for the purpose of appointing mediators between parties in disputes prepare a list of mediators and first publish the same in the Gazette within 90 days of the coming into force of these Regulations.

(2) The Commission shall, from time to time, revise the list and shall no later than March 31st of each year publish the list of approved mediators.

(3) The consent of the persons whose names are included in the panel shall be obtained before being included on the list.

(4) The list of names shall contain a detailed annexure giving details of the qualifications of the mediators and their professional or technical experience.

6. (1) Notwithstanding the provisions of paragraphs 4 and 5 herein the parties to a dispute may select a mediator(s) whose name (s) do not appear on the list published by the Commission.

(2) Where such a selection is made the parties shall notify the Commission in writing of the name(s) of the mediator(s) and shall submit the qualifications such person(s) to the Commission.

(3) The notification to the Commission shall be signed by all parties to the dispute.

7. The following persons shall be treated as qualified and eligible for being enlisted in the panel of mediators under paragraph 4, namely:

(a) retired Judges of any Commonwealth Country;

(b) retired Magistrates of the Magistrates Court in any Contracting State;

(d) any other person who has 3 years practical experience in mediation and holds qualifications recognised by ECTEL.

8. A person whose name has been included in the list referred to in paragraph 5 may be removed or his or her name may be deleted by the Commission which appointed him or her if:

(a) he or she resigns or withdraws his name from the list for any reason;

(b) he or she dies;

(d) he or she exhibits or displays conduct, during the continuance of the mediation proceedings, which is unbecoming of a mediator;

(e) the Commission which appointed, upon receipt of information, if it is satisfied, after conducting such inquiry it deems fit, is of the view, that it is not possible or desirable to continue the name of that person in the panel, provided that, before removing or deleting his or her name, under paragraphs (c) and (d) the Commission shall hear the mediator whose name it is proposed to be removed or deleted from the list and shall pass a reasoned order.

9. (1) The parties may agree on the procedure to be followed by the mediator in the conduct of the mediation proceedings.

(2) Where the parties do not agree on any particular procedure to be followed by the mediator, the mediator shall follow the procedure hereinafter mentioned, namely:
1. (a) he or she shall fix, in consultation with the parties, a time schedule, the dates and time of each mediation session, where all the parties must to be present;
1. (b) he or she shall determine the place of the mediation after consultation with the parties;
1. (c) each party shall, 14 days before the first session, provide to the mediator a brief memorandum setting forth the issues, which according to it, need to be resolved, and its position with respect to those issues and all information reasonably required for the mediator to understand the issue. Such memoranda shall also be mutually exchanged between the parties;
1. (d) each party shall furnish to the mediator such other information as may be required by him or her in connection with the issues to be resolved.

(3) Where there is more than one mediator, the mediator nominated by each party shall first confer with the party that nominated him or her and shall thereafter interact with the other mediators, with a view to resolving disputes.

10. The mediator shall not be bound by the Civil Procedure Rules, Code of Civil Procedure or the Evidence Act, but shall be guided by principles of fairness and justice, having regard to the rights and obligations of the parties, the potential impact on the telecommunications sector and the circumstances of the disputes.

11. (1) The parties to a dispute shall be present personally or through their legal counsel or power of attorney holders at the meeting or sessions notified by the mediator.

(2) If a party or its appointed legal counsel or power of attorney fails to attend a session or a meeting notified by a mediator, other parties or the mediator can request the Commission to issue appropriate directions to that party to attend before the mediator, if the Commission finds that that party is absenting himself or herself before the mediator without sufficient reason, the Commission may make such determination as meets the justice of the case.

12. In order to facilitate the conduct of the mediation proceedings the Commission shall provide required administrative assistance.

13. Any party to a dispute may at any stage in the meetings or sessions make a “without prejudice” or “a conditional” offer of settlement to the other party with or without notice to the mediator.

14. Where parties to a dispute arrive at a settlement after mediation proceedings have commenced but outside the mediation sessions, the parties may still be liable for the costs of the mediator and the mediation proceedings.

15. The role of the mediator shall be to attempt to facilitate voluntary resolution of the dispute between the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute, emphasising that it is the responsibility of the parties to take decisions which affect them; he or she shall not impose any terms of settlement on the parties.

16. The parties must understand that the mediator only facilitates arriving at a decision to resolve disputes and that he will not and cannot impose any settlement nor does the Commission or mediator warrant that the mediation will result in a settlement. The mediator shall not impose any decisions on the parties.

17. (1) On the expiry of 60 days from the date fixed for the first appearance of the parties before the mediator, the mediation shall stand terminated, unless the mediator or the parties are of the view that an extension of time is necessary or may be useful; but such extension shall not be beyond a further period of 30 days unless both parties agree to a longer extension.

(2) Where an extension of time is provided or agreed to pursuant to this Part, the mediator shall inform the Commission of the extension of time.

18. While no one can be compelled to commit to settle his case in advance of mediation, all parties shall commit to participate in the proceedings in good faith with the intention to settle the dispute if possible.

19. (1) Receipt or perusal, or preparation of records, reports or other documents by the mediator while serving in that capacity shall be confidential and the mediator shall not be compelled to divulge information, including to a Commission, regarding those documents nor as to what transpired during mediation.

(2) Parties shall remain confidential in respect of events that transpired during mediation and shall not rely on or introduce in any other proceeding:
1. (i) views expressed by a party in the course of the mediation proceeding;
1. (ii) documents obtained during the mediation which were expressly required to be treated as confidential or other notes, drafts or information given by parties or mediators;
1. (iii) proposals made or views expressed by the mediator;
1. (iv) any admission made by a party in the course of mediation proceedings;
1. (v) the fact that a party had or had not indicated a willingness to accept a proposal.

(3) (a) There shall be no permanent stenographic or other hand written notes, audio or video recordings of the mediation proceedings.
1. (b) At the end of every mediation session and in the presence of the other parties and the Mediator all notes or records made during the sessions shall be destroyed.

20. Mediation sessions and meetings are private; only the concerned parties or their counsel or power of attorney holders can attend. Other persons may attend only with the consent of the parties and with the permission of the mediator.

21. No mediator shall be held liable for anything bona fide done or omitted to be done by him during the mediation proceedings nor shall he be summoned by any party to the mediation proceedings to appear in any court of law or any other authority to testify or provide information in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the mediation proceedings.

22. (1) In order to preserve the confidence of the parties in the mediation proceedings and the neutrality of the mediator, there shall be no communication between the mediator and the Commission except as provided in paragraphs (b) and (c) herein.

(2) If any communication between the Commission and the mediator is necessary, it shall be in writing and copies of the same shall be given to the parties or their counsel or power of attorney.

(3) Communication between the mediator and the Commission shall be limited to communication by the mediator:
1. (a) with the Commission about the failure of a party to attend;
1. (b) with the Commission with the consent of the parties;
1. (c) regarding his assessment that the case is not suited for settlement through mediation;
1. (d) that the parties have settled the dispute or disputes.

23. (1) Where an agreement is reached between the parties in regard to all the issues in dispute or some of the issues, the same shall be reduced to writing in the prescribed form and signed by the parties or their power of attorney holder. If any legal counsel has represented the parties, they shall attest the signature of their respective clients. Where legal counsel has not represented the parties, the Mediator shall record the identification number of the party below their Signature. (Identification number may be obtained from any form of picture identification including passport, drivers licence or national identification card).

(2) The agreement of the parties so signed and attested shall be submitted to the Mediator who shall, with a covering letter signed by him, forward the same to the Commission.

(3) Where no agreement is arrived at or the mediator is of the view that no settlement is possible, he shall report the same to the said Commission in writing.

(4) Where no agreement is reached as in paragraph (3) herein, proposed or discussed formula shall not affect any arbitration or subsequent court process.

24. (1) Where all the issues in dispute have been settled, the Commission shall within 5 days of receipt of any settlement, issue a Dispute Resolution Order in prescribed forms on all the parties to the proceedings.

(2) Where some issues have been settled and other issues remain unresolved, the Commission shall, within 10 days of receipt of such notification from the mediator, issue a Dispute Resolution Order in prescribed form reflecting the resolution agreed to by the parties and giving further directive for settlement of the outstanding issues.

(3) Where none of the issues have been settled, the Commission in consultation with the parties, shall, within 21 days of such notification from the mediator, issue a Dispute Resolution Order in prescribed form giving further directions on the procedure to be taken to settle the dispute.

25. The mediator shall:

(a) not carry on any activity or conduct which would reasonably be considered as conduct unbecoming of a mediator;

(b) uphold the integrity and fairness of the mediation process;

(c) ensure that the parties involved in the mediation are properly informed and have an adequate understanding of the procedural aspects of the process;

(d) satisfy himself that he is qualified to undertake and complete the assignment in a professional manner;

(e) disclose any interest or relationship likely to affect impartiality or which might reflect an appearance of partiality or bias;

(f) avoid, while communicating with the parties, any impropriety or appearance of impropriety;

(g) be faithful to the relationship of trust and confidentiality imposed on the office of mediator;

(h) conduct all proceedings related to the resolution of a dispute in a fair manner;

(i) recognise that mediation is based on principles of self-determination by the parties and that the mediation process relies upon the ability of the parties to reach a voluntary, undisclosed agreement;