For far too long, adversity has reigned in Guyana’s approach to dispute settlement. It is evident in the day-to-day lives of our citizens, and has made its roots in the court system. At face value, one considers this to be the ‘be-all end-all’ approach, suggesting to society that litigation is an inescapable route to resolve.
The nature of Alternative Dispute Resolution, commonly referred to as “ADR”, presents a deviation from the precepts of this kind. It allows for settlement, resolution, and justice through peaceful, timely, and financially affordable means, not often afforded in litigation.
The Supreme Court of Guyana Civil Procedure Rules 2016 (“CPR”) define ADR as a process of settling disputes outside of Court, specifically referencing the means of mediation and arbitration – two means by which citizens can achieve negotiations organized by and for themselves.
Mediation
Mediation is an out-of-court method of dispute settlement chaired by an impartial and independent person (the mediator) who assists parties in resolving their disagreement through negotiations. Mediation is largely governed by the Alternative Dispute Resolution Act, Cap. 7:05 of Guyana.
The process begins either by the direction of the court or at the request of the parties in dispute who have the right to agree on a mediator or be granted one (section 4, Cap 7:05). Mediation is often conversational, inviting both parties to share their “sides” of the dispute and, through the assistance of the mediator, develop solutions which cater specifically to their needs. It is a confidential process that not only saves time, but is budget-friendly. These benefits, however, cannot overshadow the ability of mediation to do what litigation often fails to do, which is to preserve relationships, whether familial or commercial.
Arbitration
Arbitration is more diverse, often acting as a bandage for commercial disagreements. It allows for a neutral third party who, contrary to the mediation process, hears the evidence presented and makes a binding judgment. It is provided by the Arbitration Act of 2024 and refers to an adjudicating process facilitated by an arbitrator, either agreed upon by the parties or assigned by the appointing authority (section 12, Arbitration Act).
Arbitration involves less of a formal court structure, enabling parties to present their version of events in the presence of an arbitrator(s), who may function as a mediator by the written consent of the parties (section 19, Arbitration Act).
It is instrumental in the settlement of commercial and international disputes as it provides leverage for parties to determine the place, date, cost, language(s), and mode of arbitration, whether orally or through written documents. Parties also benefit from the timeliness, high level of confidentiality, and restoration of relations likely to aid in the continuity of future commercial agreements and pursuits with each other. The award or decision emanating from arbitration is also binding and enforceable upon application (section 57, Arbitration Act).
Concluding Thoughts
Conclusively, mediation and arbitration, two branches of ADR which are accepted in Guyana’s legal framework, provide avenues by which individuals and companies can settle disputes outside of the courtroom. Mediation allows for parties to negotiate with guidance of a neutral third-party, while arbitration provides that the parties’ evidence be reviewed and adjudicated on to form a binding decision. Both options are designed to be less costly, less time-consuming, and more flexible than traditional litigation.