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The Cayman Islands Human Rights Commission (the HRC) is tasked with a number of responsibilities which include providing a forum for dealing with complaints by way of mediation or conciliation or by making recommendations.
What is mediation?
Mediation is a form of alternative dispute resolution. “Alternative Dispute Resolution” (ADR) refers to a wide range of processes designed to help parties discuss and resolve their problems. ADR includes informal and formal processes, such as mediation and conciliation. Increasingly, courts, tribunals and other organizations use these processes to help resolve a variety of disputes.
Mediation is a voluntary, confidential ADR process led by a trained, impartial mediator. Parties can make use of it if after accepting a complaint and when the Commission recommends mediation as a potential way of resolving the complaint. .
What are the advantages of mediation?
Mediation helps parties better understand each other’s point of view. It can improve communication and future relations between the parties. Because it is flexible, mediation allows parties to deal with both the immediate problem and its possible causes. It also allows them to craft creative solutions together. Mediating a dispute as soon as possible can help parties solve the problem quickly and keep it from getting worse.
How does mediation work?
First, the mediator speaks to the parties individually about the situation and possible solutions. The mediator also explains how he or she will run the mediation session.
Then the parties decide whether to meet in person or make other arrangements, such as participating in a telephone conference.
Finally, the parties participate in the mediation session with the mediator. They are expected to negotiate quickly and in good faith, to treat each other with respect, and to keep discussions confidential.
Discussions in mediation are “without prejudice.” This means that the parties do not give up their right to launch further legal proceedings or to take other steps. It also means that anything discussed during mediation cannot be used in a later court case. Further, participating in mediation does not mean that one party accepts the other party’s version of events.
Who are the mediators and what do they do?
Mediators assisting the HRC have training and experience in mediation and human rights. They create a safe environment, encourage discussion and help the parties find solutions. They cannot make decisions about the dispute.
The mediators discuss the ground rules for mediation, the location of the mediation session and similar matters with the parties.
They guide discussions impartially and give the parties feedback on their ideas.
They encourage parties to look at the pros and cons of the different options for resolving the dispute.
They tell the parties about the “public interest”—that is, they point out what is appropriate from a human rights perspective. For example, if one party claims that a discriminatory practice or policy affects other people, mediators will ensure that any settlement also raises with the Human Rights Commission the practice or policy.
If the parties reach a settlement, mediators help them prepare an agreement to sign.
What might a settlement include?
The purpose of the Cayman Islands Constitution and Bill of Rights is to resolve human rights disputes and prevent them from happening again. If parties reach a settlement, they can agree to whatever solutions seem appropriate to them, as long as the public interest is considered. Solutions might include apologies, training, replacement of lost wages, reinstatement in a position, or financial compensation. If the case involves a discriminatory policy, the terms of the settlement could include changing the policy or putting new procedures in place.
What happens when the parties reach a settlement?
If the parties reach a settlement, the mediator helps them prepare a written agreement. This document outlines what each party has agreed to do to resolve the matter. The commissioners may review the agreement to ensure it is fair and in the public interest. If required, the terms may have to be enforced through the courts privately by the parties.
In some cases, the parties may settle the dispute between themselves, without asking the Commission to approve the agreement.
What happens if there is no settlement?
If there is no settlement, the mediation process ends. The person who has filed the complaint may then seek further redress from the Commission or may, if so advised, seek relief from the Grand Court.
What are the minimum requirements for mediators?
Four years’ experience and thorough knowledge of ADR or a comparable process requiring dispute resolution;
Membership of the Cayman Islands Association of Mediators and Arbitrators or similar association;
Completion of an approved 40-hour mediation training course and Mediation certification required;
Thorough knowledge of fact-finding, analysis, interviewing, problem solving, conducting conferences and negotiating settlements.
Thorough knowledge of the Cayman Islands laws, regulations, procedures and policies governing human rights and equal opportunity in all areas;
Ability to interpret and apply the Cayman Islands Bill of Rights;
A bachelor’s degree and preferably legal experience.
How do I become involved in mediation with the HRC?
If you are a member of the public who is interested in mediation services you must file a complaint with the HRC who will determine whether your case meets the requirements for mediation. Please visit www.humanrightscommission.ky for more information on filing a complaint.
If you are a qualified mediator and wish to be considered to act as a mediator for the HRC, you should submit a cover letter along with your resume to info@humanrightscommission.ky.