THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
12.3 ADR Institutions The Mediation Rules provide for the establishment of a Mediation Committee by the Chief Justice, compris- ing the following persons: • a judge (who will be the chair); • the Chief Magistrate; • the Registrar of the Supreme Court; and • a representative of the Bar association, who may hold the position of membership for one year. The Mediation Committee is responsible for compiling the roster of mediators (including assessing applica- tions for entry into the roster by suitable candidates) and for monitoring the observance of the Code of Conduct and implementing the Disciplinary Rules. The Mediation Committee will report to the Chief Justice. The ADR administrator is an official who manages the roster of mediators and is appointed by the Chief Jus- tice to be responsible for the management of court- connected mediation. Aside from the Mediation Committee, some members of the local Bar are members or fellows of the Char- tered Institute of Arbitrators. Arbitration in the Turks and Caicos Islands is governed by the Arbitration Act (Chapter 4.08), in which an arbi- tration agreement is referred to as a “submission”. Section 2 defines a “submission” as “a written agree- ment to submit present or future differences to arbitra- tion, whether or not any arbitrator is named therein”. As such, the only real legal requirement regarding a reference to arbitration in the Turks and Caicos Islands is that the arbitration agreement is in writing. The Arbitration Act governs domestic and interna- tional arbitration proceedings. Until the recent roll-out of the Turks and Caicos Islands Legal Information Institute (see 14. Outlook ), there was no organised system for the reporting of cases in the Turks and Caicos Islands, so it was dif- 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
the file is first placed before the magistrate/judge. Even without a request for a referral by either party, the Registrar/Clerk of Court must invite the parties to a pre-proceedings case management meeting to discuss the possibility of the dispute being resolved through mediation. Referral by the Court Where proceedings have commenced, a judge or magistrate may – when performing case manage- ment – introduce the suitability of mediation for that case and secure the consent of the parties to refer the matter to mediation. This may be at any stage of the proceedings where the court is of the view that mediation would facilitate the resolution of the dispute by the parties. Where one party seeks to submit a dispute to media- tion and the other party unreasonably refuses media- tion, the magistrate or judge may take that party’s refusal into account when making a costs order in the proceedings. Once the referral order is made, the mediation session hearing must be held within 21 days. Even though sessions can be adjourned from time to time as nec- essary, under no circumstances must any mediation exceed 60 days. Outcome of Mediation Upon the conclusion of mediation sessions where there is a settlement of all or some of the issue in the dispute, the terms of settlement shall be set out. The signed terms of settlement are prima facie evidence of settlement and will be adopted by the judge/mag- istrate as the judgment of the court. Where no settle- ment is reached, an order will be made for the suit to
take its normal course. Court-Aided Mediation
Parties who require the resolution of a dispute but do not wish to file papers before the court may access the Court-Aided Mediation Services for a fee. Such parties will have access to the roster of mediators and the services of the ADR administrator.
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