belize: statutory instrument no. 88 of 2013

No. 88] Supreme Court of Judicature 1

BELIZE:

STATUTORY INSTRUMENT

No. 88 of 2013____________

RULES OF COURT made by the Chief Justice in exerciseof powers conferred upon him by section 95 of theSupreme Court of Judicature Act, Chapter 91 of theSubstantive Laws of Belize, Revised Edition 2000-2003, and all other powers thereunto him enabling.

(Gazetted 2nd November, 2013).____________

1. These Rules may be cited as the

SUPREME COURT (CIVIL PROCEDURE)(AMENDMENT) RULES, 2013

and shall be read and construed as one with the SupremeCourt (Civil Procedure) Rules, 2005 which as amended,are hereinafter referred to as the principal Rules.

2. The principal Rules are amended by insertingimmediately after Part 72 the following as Part 73 -

“ Part 73

Mediation

Contents of this Part

Scope of this Part ................................. Rule 73.1Definitions ............................................. Rule 73.2Referral of cases to mediation .............. Rule 73.3Criteria for referral of cases .................... Rule 73.4Application to dispense with mediation Rule 73.5

Citation.

Insertion ofPart 73.

SI /2005

Selection of mediator ............................ Rule 73.6Pre-mediation requirements .................. Rule 73.7Mediation sessions ............................... Rule 73.8Confidentiality ....................................... Rule 73.9Settlement ............................................. Rule 73.10Extension of time for mediation ............ Rule 73.11Non-compliance with the referral order Rule 73.12Mediator’s report ................................. Rule 73.13Agreement arising from mediation ........... Rule 73.14Costs of mediation ................................. Rule 73.15Sanctions ............................................... Rule 73.16Relief from sanctions .............................. Rule 73.17Use of mediator’s report for researchand evaluation.. ...................................... Rule 73.18

73.1 This Part contains provisions -

(a) for the purposes ofregulating and prescribingthe procedure and thepractice to be followed inthe court in certain civilclaims regulated by theseRules in relation tomediation; and

(b) to make provision formediation services as aresult of a referral by thecourt, selection ofmediator, pre-mediationrequirements, the conductof mediation sessions andtheir confidentiality,settlement of claims bymediation, costs ofmediation and for mattersincidental or relating to allsuch procedure andpractice.

2 Supreme Court of Judicature [No. 88

Scope of thisPart.

73.2 In this Part -

“court-connected mediation services”means mediation services provided asa result of a referral by the court;

“Judicial Education Institute” - meansthe Judicial Education Institute ofBelize;

“mediation” means a flexible disputeresolution procedure in which a neutralthird party, the mediator, whose nameappears on the Roster of Mediatorsfor the court, facilitates negotiationsbetween the parties to help them settletheir dispute;

“Mediation Co-ordinator” means theperson, who shall be an officer of thecourt, who is appointed by the ChiefJustice to coordinate the developmentof court-connected mediation inBelize;

“mediation session” refers to amediation including continuation andadjournments of the same matter heldwith a mediator and attended by partiesand or their lawyers to a dispute towhich this Part applies;

“mediator” means a person whosename appears on the Roster ofMediators; and

“Roster of Mediators” means a list ofpersons trained in mediation, approvedby the Chief Justice and publishedfrom time to time in the Gazette


Definitions.

73.3. (1) A judge may at any stage of theproceedings make an order in Form 45referring a claim to mediation.

(2) The parties may by consent notifythe court by Notice for Referral to Mediationin Form 46, that they wish to have their casereferred to mediation and the judge may makean order to refer the claim to mediation.

(3) A party shall not be allowed to opt outof an order for mediation made pursuant to Rule73.3(1) except by order of a judge.

(4) The court office shall, after a claim hasbeen referred to mediation, send a copy of theorder to the Mediation Co-ordinator.

73.4 A judge may, in considering whether torefer a case to mediation, take into account allrelevant circumstances including thefollowing -

(a) the nature of the dispute;

(b) the relationship betweenthe parties;

(c) the willingness of theparties to resolve theirdispute by a collaborativeprocess;

(d) opportunities for jointgains not available throughlitigation in the court; or


Criteria forreferral ofcases.

Referral ofcases tomediationForm 45.

Form 46.

(e) any other criteriaconsidered appropriate bythe judge.

73.5 (1) A party may, within 15 days of anorder made pursuant to Rule 73.3(1), apply tothe court (supported by an affidavit) to vacatethe order and dispense with mediation if agood and substantial reason is shown.

(2) A good and substantial reason fordispensing with mediation may include -

(a) good faith efforts to settlehave been made by theparties and were notsuccessful;

(b) the costs of mediationwould be disproportionateto the value of the claim orthe benefits that might beachieved by mediation;

(c) the case involves a matter ofpublic policy and mediationwould not be appropriate;or

(d) for some other good andsubstantial reason,mediation would not beappropriate.

73.6 (1) The Mediation Co-ordinator shallkeep and manage the Roster of Mediators.

(2) All court-connected mediation shallbe conducted by a mediator from the Rosterof Mediators approved by the court, who is -


Selection ofmediator.

Application todispense withmediation.


(a) mutually agreed by theparties; or

(b) assigned by a judge wherethe parties fail to agree.

(3) It is the joint responsibility of theparties, in the first instance, and in good faith,to seek to select a mediator mutually agreedby them.

(4) The parties may select themediator -

(a) at the time of filing theNotice for Referral toMediation;

(b) at the time the court makesan order referring the claimto mediation; or

(c) within 14 days after theorder referred to inparagraph (4)(b), by filinga Notice of Selection ofMediator in Form 47.

(5) If the parties fail to select a mediator,the Mediation Co-ordinator shall refer theclaim to the judge for him to assign a mediatorfrom the Roster of Mediators and the judgemay issue a Notice in Form 48, to the parties.

73.7 (1) Where an order has been madereferring a matter to mediation, the partiesshall -

Pre-mediationrequirements.

Form 47.

Form 48.


(a) submit a copy of theStatement of Case to themediator at least 7 daysprior to the mediationsession; and

(b) sign a ConfidentialityAgreement in Form 49prior to the mediationsession

(2) Where the parties have agreed tosettle or have settled the claim prior to thescheduled mediation session, they must informthe Mediation Co-ordinator forthwith andprovide the details of the terms of theagreement or settlement.

73.8 (1) The Mediation Co-ordinator shall,upon the filing of a Notice in Form 47 or 48and in consultation with the parties and themediator, fix a date for the mediation sessionand shall serve on every party a Notice ofScheduled Mediation in Form 50 stating theplace, date and time of the mediation.

(2) The Mediation Co-ordinator shallbe responsible for the scheduling of mediationsessions.

(3) All scheduled mediation sessionsshall be conducted in facilities approved by,or under the management and control of thecourt.

(4) The mediation session hearing shallbe held within 45 days of the MediationReferral Order unless otherwise ordered bythe judge on application of any party.

Mediationsessions.Form 47.Form 48.

Form 50.

Form 49.


(5) A party who requires any third party’sapproval or authorization before agreeing toa settlement, shall, before the mediationsession, arrange to have ready access orauthorization of the third party throughoutsuch session.

(6) Subject to an order under Rule 73.5,all parties to the mediation are required toattend a mediation session of up to threehours but they may choose to go beyond thatperiod if they so desire.

(7) Where a party is not a natural person,the person attending a mediation session onbehalf of that party must be authorised tosettle the dispute, or, be in a position to beable to obtain such authority during themediation.

(8) After the first three hours, themediation session may be continued if theparties and the mediator agree to do so andthe parties agree to pay the mediator’sscheduled additional hourly rate.

(9) If a party -

(a) fails to attend the mediationsession (whether or nottheir legal practitionersattend) within half an hourof the appointed time; or

(b) attends the mediationsession without havingauthority to settle,


the mediator shall cancel the session andimmediately lodge with the Mediation Co-ordinator a certificate in Form 51 for filing atthe court office.

73.9 (1) Discussions during the mediationand documents prepared solely for thepurposes of the mediation are confidentialand shall not be disclosed in any otherproceedings.

(2) A party or attorney-at-lawrepresenting a party shall not, at anysubsequent trial or hearing of the claim, referto any matters disclosed at the mediation byany party or attorney-at-law.

(3) The mediator may not disclose toany other person or be required to giveevidence about any matters disclosed by anyparty at the mediation.

(4) The mediator shall not be requiredto provide consultation notes, evidence or anopinion, touching on the subject matter of themediation in any proceedings.

(5) Nothing in this rule is intended toaffect any duty to disclose under any otherrule.

73.10 (1) A mediator may -

(a) assist the parties bymeeting with themtogether or separately toencourage and facilitatediscussion between them

Form 51.

Confidentiality.

Settlement.


in an attempt to reach amutually acceptableresolution of the disputeor any part of it; or

(b) adopt any procedure thatis just to the parties tofacilitate and encourage anearly settlement of one ormore issues in disputebetween them.

(2) Mediators shall comply with theapproved Code of Ethics of Mediators set outin Schedule 1.

(3) A mediation session may beadjourned at any time with the consent of allthe parties and the mediator.

(4) In the event of an adjournment, theparties must reschedule the mediation sessionwithin the time limits set out in these Rules.

73.11 (1) A judge may, subject to sub-rule (2)and on an application by a party, extend thetime specified in rule 73:8(4).

(2) The judge shall, in consideringwhether to extend the time within which themediation is to be conducted, take into accountall circumstances, including -

(a) the number of parties andthe complexity of theissues in the claim; and

(b) whether the mediation willbe more likely to succeedif it is postponed.

Schedule 1.

Extension oftime formediation.


73.12 The Registrar shall, when a Form 51 isfiled in the court office pursuant to Rule73.8(9)(b), refer the matter to the judge whomay make an order under Part 26 (casemanagement-the court’s powers) or underPart 63 (costs-general) of these Rules againsta party who fails to comply with this Part.

73.13 At the end of the mediation session, themediator shall complete and lodge the Noticeof Outcome of Mediation in Form 52 with theMediation Co-ordinator, for filing at the courtoffice.

73.14 (1) If there is an agreement resolvingsome or all of the issues in the dispute it shallbe signed by the parties and the mediator andlodged with the Mediation Co-ordinator forfiling at the court office within 7 days afterthe agreement is signed and the parties shallapply to the court for an order in terms of theagreement and the judge shall make an orderin Form 53.

(2) Where the parties fail to apply to thecourt for an order in terms of the signedagreement within 7 days after the agreementis signed, the judge shall make an order underRule 26.2.

(3) Where –

(a) no agreement is reachedby the parties that resolvesthe issues in dispute; or

(b) An agreement is reachedwhich resolves some of theissues in the dispute,

Non-compliancewith thereferral orderForm 51.

Mediator’sReport.

Agreementarising frommediation.

Form 52.

Form 53.


the matter shall be returned to casemanagement.

73.15 (1) The costs of mediation under thisPart, including any payment made by a partyto the Mediator Co-ordinator in respect ofmediation fees, will be costs in the claimunless otherwise agreed by the parties.

(2) The fees payable to the Mediatorshall be a percentage of the mediation fees asset out in Schedule 2 being the Schedule ofFees approved by the Chief Justice.

(3) Mediation fees for the mediationshall be paid by the parties to the mediation tothe Mediation Co-ordinator not later than 7days before the date scheduled for themediation.

73.16 (1) Where a party, an attorney-at-lawrepresenting a party or a mediator fails tocomply with any rule, order or direction underthis Part or breach the confidentialityprovisions of Rule 73.9, any other party, orthe Mediation Co-ordinator, may apply to thecourt (supported by an affidavit) setting outthe nature of the alleged failure or breach andserve a notice of the application and a copy ofthe affidavit on every other party.

(2) In determining any such applicationthe court may make such order and imposesuch sanctions as may be appropriateincluding the removal of the mediator fromthe Roster of Mediators.

73.17 (1) An application for relief from anysanction imposed for failure to comply with

Costs ofmediation.

Sanctions.

Relief fromsanctions.

Schedule 2.


any such rule, order or direction under thisPart or breach of the confidentiality provisionsof Rule 73.9, must be -

(a) made promptly; and

(b) supported by evidence onaffidavit.

(2) The court may grant relief fromsanctions if satisfied that -

(a) the failure to comply wasnot intentional;

(b) there is a good explanationfor the failure; or

(c) the party in default hasgenerally complied with allother relevant rules, ordersand directions.

73.18 For purposes of research and evaluationby persons authorised by the Chief Justice, aMediator’s Report may be disclosed afterremoval of all information which may identifythe parties, and after any other editing whichmay be necessary to preserve confidentiality.”.

3. The Appendix to the principal Rules is amended byinserting immediately after Form 44, the following forms -

Use ofMediators’Report forresearch andevaluation

Amendment ofthe Appendix

4. The principal Rules are amended by insertingimmediately after Form 53, the following Schedules -

“ SCHEDULE 1[Rule 73.10(2)]

CODE OF ETHICS OF MEDIATORS

1. This Code of Ethics shall apply to anyperson on the Roster of Mediators publishedpursuant to Part 73 of the Supreme Court(Civil Procedure) Rules 2005 (“the MediationRules”) and is intended to regulate, assist andguide such Mediator in his/her conduct ofany mediation and to provide a frameworkfor such mediations.

2. In this Code -

“conflict of interests” means direct orindirect financial or personal interestsin the outcome of the dispute or anexisting or past financial, business,professional, family or socialrelationship between the mediator andeither of the mediation parties whichis likely to affect the mediator’simpartiality or reasonably create anappearance of partiality or bias;

“impartiality” means freedom fromfavoritism and bias either by words,actions or by appearance and includesa commitment to serve all mediationparties as opposed to a single mediationparty in moving towards or reachingagreement; and

“mediator” means any mediator on theRoster of Mediators referred to inparagraph 1 hereof;


Application

Interpretation

Self-determination.


“Roster of Mediators” means a list ofpersons trained in mediation, approvedby the Chief Justice and published fromtime to time in the Gazette.

GENERAL RESPONSIBILITIES

3. Mediators shall -

(a) conduct themselves in a mannerwhich will instill confidence in themediation process, confidence intheir integrity and confidence thatdisputes entrusted to them arehandled in accordance with thehighest ethical standards;

(b) be responsible to the parties, to theprofession, to the public and tothemselves, and accordingly shallbe honest and unbiased, act in goodfaith, be diligent, and not seek toadvance their own interest, butrather the needs and interests of themediation parties;

(c) act fairly in dealing with the mediationparties and be certain that themediation parties are informed of theprocess in which they are involved.

ETHICAL STANDARDS

4. (1) The primary role of the mediator is tofacilitate the voluntary resolution of a disputeand the mediator shall make reasonable effortsto ensure that each party understands theoperation of the mediation process

GeneralResponsibilitiesof Mediators.

Self-determination.


(2) A mediator shall always recognizethat the primary responsibility for the resolutionof the dispute and the shaping of a settlementrests with the mediation parties.

(3) A mediator shall recognize thatmediation is based on the principle of self-determination by the mediation parties and uponthe ability of the mediation parties to reach avoluntary uncoerced agreement.

(4) A mediator shall request and encourageself-determination by the mediation parties intheir decision whether, and on what terms, toresolve their dispute, and shall refrain frombeing directive or judgmental regarding theissues in dispute and options for settlement.

(5) A mediator shall encourage mutualrespect between the mediation parties, and shalltake reasonable steps, subject to the principle ofself-determination, to limit abuses of themediation process.

(6) A mediator shall make the mediationparties aware, where appropriate, of the optionand importance of consulting other professionalsto assist the mediation parties in the making ofinformed decisions.

(7) When a mediator believes a mediationparty does not understand or appreciate how anagreement may adversely affect legal rights orobligations, the mediator shall advise themediation parties to seek independentprofessional advice.

(8) While a mediator may point out possibleoutcomes of a case, the mediator shall not offer


a personal or professional opinion as to how theCourt in which the case has been filed willresolve the dispute.

(9) A mediator shall not use during themediation process any title or honorific to whichhe may be entitled.

(10) A mediator shall not intentionally orknowingly misrepresent any material fact orcircumstance in the course of conductingmediation.

(11) If for any reason a party is unable tofreely exercise self-determination, a mediatorshall cancel or postpone the mediation.

5. (1) A mediator shall mediate only when themediator has the necessary qualifications,training and experience to enable him to satisfythe reasonable expectation of the mediationparties.

(2) A mediator shall acquire and maintainprofessional competence in mediation inaccordance with the Mediation Rules, and shallat all times strive to improve his/her professionalskills and abilities by participating in relevantcontinuing education programs.

(3) A mediator shall make informationregarding his relevant training, education andexperience available to the mediation parties ator before the commencement of the mediationsession.

6. (1) A mediator shall provide mediationservices only for those disputes in which he can

Competence.

Impartiality.


be impartial with respect to all the mediationparties and the subject matter of the dispute.

(2) A mediator shall in words and action,maintain impartiality towards the mediationparties and the issues in dispute and where hisimpartiality is in question, shall decline toserve or shall withdraw from serving as amediator.

(3) Where at any time prior to, or duringthe mediation process the mediator is unableto conduct the mediation process in animpartial manner, the mediator shall so informthe mediation parties and shall withdraw fromproviding services, even if the mediationparties express no objection to the continuationof the mediator’s services.

(4) A mediator shall neither give noraccept a gift, favor, loan or other item of valuein any mediation process and shall not solicitor otherwise attempt to procure futureprofessional service during the mediationprocess.

7. (1) A mediator shall discuss issues ofconfidentiality with the mediation partiesbefore beginning the mediation processincluding, the extent of confidentiality inrelation to mediation sessions.

(2) Discussions during the mediation anddocuments prepared solely for the purposes ofthe mediation are confidential and shall not bedisclosed in any other proceedings and themediator, except with the written consent of themediation parties or except where disclosure is

Confidentiality.


required by law, shall not disclose to any otherperson or be required to give evidence aboutany information disclosed by any party at themediation.

(3) Information obtained during caucusmay not be revealed by the mediator to anyother mediation party without the consent ofthe party disclosing the information.

(4) A Mediator’s Report to the Courtand or an affidavit required pursuant toparagraph 8(3) of this Code, shall not beconsidered a breach of his obligation ofconfidentiality.

(5) A mediator shall maintainconfidentiality in the storage and disposal ofrecords and notes acquired during themediation.

8. (1) A mediator shall structure themediation process so that the mediation partiesmake decisions based on sufficientinformation and knowledge.

(2) The mediator has an obligation toensure that all mediation parties understandthe nature of the process, the procedures, theparticular role of the mediator and themediation parties’ relationship to the mediator.

(3) Where at any time the mediatorbelieves that any mediation party is unable tounderstand the mediation process orparticipate fully in it, whether because ofmental impairment, emotional disturbance,intoxication, language barriers or other

Informedconsent.


reasons, the mediator shall limit the scope ofthe mediation process to a manner consistentwith the mediation party’s ability toparticipate, and/or recommend that themediation party obtain appropriate assistancein order to continue with the mediation processor shall terminate the mediation process andrefer the matter back to the court and outlinethe reasons for termination in an affidavitsubmitted to the judge with conduct of thematter.

(4) The mediator has a duty to advise theparties of the importance of understanding thelegal ramifications or consequences of aproposed agreement and give them anopportunity to seek advice if they desire to doso.

9. (1) A mediator shall as far as possibleavoid conflicts of interest and shall in any eventresolve all such conflicts in favour of his/herprimary obligation to impartiality while servingthe parties to the dispute, and disclose all actualand potential conflict of interests known to him/her and thereafter shall withdraw from themediation, if any mediation party objects to himcontinuing as mediator.

(2) Where the mediator determines thatthe conflict is so significant as to cast doubt onthe integrity of the mediation process, themediator shall withdraw from the process evenif the mediation parties express no objection tothe continuation of the mediator’s services.

(3) Save with the consent of the mediationparties, and for a reasonable time under the

Conflict ofinterests.


particular circumstances, a mediator who alsopractices in another profession shall not establisha professional relationship in that otherprofession with one of the mediation parties, orany person or entity, in a substantially factuallyrelated matter.

(4) A mediator shall limit himself solely tothe role of mediator, and shall refrain fromgiving legal or therapeutic information or adviceand otherwise engaging during mediation incounseling or advocacy.

(5) The mediator’s duty to disclose conflictof interests shall be a continuing obligationthroughout the mediation process.

10. (1) In mediation matters involving familiesand children, the mediator has a responsibilityto promote the mediation parties’ considerationof the interest of children in relation to the issuesbeing mediated.

(2) The mediator has a duty to assist themediation parties to examine, apart from theirown desires, the separate and individual needsof such children.

11. (1) A mediator shall abide strictly by theprescribed fees listed in Schedule 2 of theSupreme Court (Civil Procedure) Rules andshall not enter into any other fee arrangementwith the parties or accept any other monies,payment or gifts from the parties.

(2) A mediator shall at the outset of themediation process, fully disclose and explain tothe mediation parties the basis of compensation,fees and charges.

Responsibilityto children infamilymediation.

Fees

(3) No commission, rebates or similarremuneration shall be given or received by amediator for a mediation referral.

12. (1) A mediator shall not make dishonestor exaggerated claims about the mediationprocess, its costs and benefits, its outcome or themediator’s qualifications and abilities.

(2) All advertising shall honestly representthe services to be rendered and no claims ofspecific results or promises which apply to oneparty over another party should be made for thepurpose of obtaining business.

13. (1) A mediator is accountable to theSupreme Court which has ultimate authorityover the claim and shall be candid, accurate andfully responsive to the court.

(2) A mediator shall comply with all courtrules relevant to the practice of mediation andshall refrain from activity that may in any wayimproperly influence his securing a referral orappointment to a case.

14. If at any time during the mediator’s placementon the Roster of Mediators, the mediatorbreaches this Code of Ethics or falls short of theestablished standards for mediators or becomesunfit for the role of mediator –

(a) such mediator may submitto the Chief Justice a letterrequesting his removalfrom the Roster ofMediators and the ChiefJustice shall remove his

Advertising.

Mediator’sresponsibilityto the court.

Voluntary andcompulsoryremoval fromthe Roster ofMediators.


name from the Roster ofMediators;

(b) any mediation party, or theMediation Co-ordinator,may apply to the court bynotice of applicationsupported by an affidavitsetting out the nature of thealleged failure or breach;the application and a copyof the affidavit shall beserved on the mediator andevery other mediation party,the mediator and every othermediation party mayrespond by affidavit and theapplication shall be heardby the court and indetermining any suchapplication the court maymake such order and imposesuch sanction as may beappropriate (including arecommendation to theChief Justice for the removalof the mediator from theRoster of Mediators);or

(c) the Chief Justice may at anytime remove a mediatorfrom the Roster of Mediatorson good and sufficientgrounds being shown tohim/her that such mediatorshould be so removed aftergiving such mediator anopportunity to be heard andotherwise complying withthe rules of natural justice.”.


SCHEDULE 2

[Rule 73.15(2)]

FEES

Mediation Fees

1. Mediation Fees for Mediation Session(Up to and including initial 3 hours) $500.00

Mediator’s Fee

2. For the first session of theMediation (the first sessioncomprises 3 hours) 60% of mediation Fees

3. For every other hour after thefirst session of the Mediation. $100.00

Additional Fee

4. For accessing the rooms at theUniversity of the West Indies(Open Campus) for the first sessionof the Mediation. $200.00

5. For accessing the rooms at theUniversity of the West Indies(Open Campus) for every hour afterthe first session of the Mediation. $150.00.”.


WILFRED ELRINGTONAttorney General

LAID before and APPROVED by the Attorney General(as the Minister with responsibility for Legal Affairs) this23rd day of October, 2013 pursuant to section 95(5) of theSupreme Court of Judicature Act, Chapter 91 of theSubstantive Laws of Belize, Revised Edition 2000-2003.

KENNETH A. BENJAMINChief Justice


Printed in Belize by the Government Printer

MADE by the Chief Justice this 17th day of October,2013.

belize: statutory instrument no. 88 of 2013

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