Mediation: a better way for Bermuda?

There are a variety of publications that promote the use of mediation as a method for resolving disputes (or certain kinds of disputes) in Bermuda, as in other jurisdictions.

And yet, amongst certain members of the Bar, there appears to be a certain level of resistance to the idea of mediation (perhaps, a cynic might say, because a prompt settlement achieved by consent through a commercial and pragmatic mediation is potentially much less profitable for a lawyer and a law firm than years’ worth of litigation and contested Court hearings).

It was somewhat refreshing to read, therefore, a recent judgment of Mrs. Justice Stoneham, in the context of a custody dispute, which concluded with the following ‘afterword’: “this difficult decision highlights that mediation and similar conflict resolution services ought to be made available within the context of court proceedings“.

This ‘afterword’ is a little bit abstract, however, and it begs the question whether what Mrs. Justice Stoneham has in mind is compulsory/mandatory mediation of custody disputes (with a mediator provided by the state on a subsidized basis), or voluntary mediation (which is already available, but which needs active encouragement by the judiciary if it is ever to gain traction amongst lawyers).

A complement to mediation, of course, is a prompt, efficient, fair, reasonably priced, actively case managed, and well reasoned judicial determination by a Court (i.e. a judgment that is delivered in writing no later than 6 weeks after the substantive hearing, as opposed to 8 or 9 months later …).

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