A time for dialogue?

This would legitimately have also encompassed mandatory mediation.

This is a form of mediation in which the parties to a civil lawsuit would be automatically referred to mediation before a first hearing in front of a judicial officer.

This was predicated upon the success of two pilot schemes run by the Judiciary in which a 65-70 percent success rate on average was achieved between 2010-2013 in resolving matters and a satisfaction rate of 98 percent in utilising mediation as a form of dispute resolution.

Such schemes are funded by the State and some may feel are worthwhile while others maintain that they restrict the parties’ freedom of choice.

Some jurisdictions such as Australia have settled upon a hybrid scheme whereby only certain categories of cases are referred to mandatory mediation.

The parties are not obligated to settle but the refusal to mediate may result in an adverse costs award.

Archie commented at that opening: “We live in a society where perceptions and accusations of overweening arrogance, megalomania, negligence, official corruption, nepotism and ineptitude in respect of people in leadership positions are freely aired and shared. And, of course, no human being is immune from such failings and temptations, and even as judicial officers we are engaged in constant training and introspection, careful selection and monitoring to ensure that our ranks remain uncontaminated.

“But I fear that we seem to have come to a sorry pass in TT where it is almost impossible to conduct civil discourse in the public arena, and those are troubled waters indeed through which one must pilot the good ship, Judiciary. I must confess that sometimes I feel like Odysseus trying to chart a course between Scylla and Charybdis, with all the frustration that attends to such a task.” Given the recent and apparent impasse by the Law Association expressing its lack of confidence in the Chief Justice and the Judicial and Legal Service Commission (JLSC) over which he presides on the one hand and the Chief Justice indicating that he will not resign his post, both of which were aired in the public domain between June 1 and 2 but preceded by weeks of speculation about the process of appointing judicial officers, perhaps the time has come to test the applicability, relevance and utility of the words of the Chief Justice and the concept of mediation in particular by the two parties being encouraged to mediate the dispute.

There is little doubt that the administration of justice has been impacted negatively by the stand-off by both sides and the question is, what is the appropriate way forward? The suggestion that the Prime Minister should request the President to convene a public inquiry has not found favour at this point, with some quarters suggesting that it would be premature so to do and others suggesting that this may amount to an interference with the separation of powers.

Parallels have been drawn by yet others with the inquiry into the former Chief Justice Sat Sharma, who had faced criminal charges of perverting the course of justice, from which he was subsequently exonerated, albeit that his actions were deemed as not without blemish by the eminent Lord Mustill who chaired the said inquiry.

At that time in July 2006, former Attorney General John Jeremie, in announcing that an inquiry would be convened, reminded the general public in a televised statement that no one was above the law.

While there are legitimate differences between the two scenarios, in principle the questions of accountability and transparency are issues common to both situations and should characterise such appointments at the national, regional and even international levels.

The current impasse may indeed permit TT to contribute to the general dialogue on how such appointments are made in other jurisdictions throughout the Commonwealth and indeed to learn from other jurisdictions as well in so far as there may be a commonality of approach.

Nevertheless, the general public will want to know that the issues raised and voted upon by the Law Association are adequately addressed given their implications for the overall administration of justice and the appointment of judges which some may feel have been negatively impacted upon. Arguably, there should even be a moratorium on future appointments while those recently appointed are reviewed and bearing in mind that there is a separate committee established in May by the Law Association to make recommendations about the process of appointing judges.

The association is the guardian of the legal profession and the Judiciary as judges generally cannot or perhaps ought not to have to defend themselves especially in the public domain and the views of eminent Senior Counsel and other long-standing members of the legal profession should be treated with respect as should the views of the learned Chief Justice.