THE UNIVERSITY OF THE WEST INDIES

ST. AUGUSTINE

EXAMINATIONS OF DECEMBER 2014

Code and Name of Course LAW 3 840 Alternative Dispute Resolution

Date and Time: of)m^| 1*5 " tCtrn&i., 20/<p 4~OO prr) Duration: 2 Hours

INSTRUCTIONS TO CANDIDATES: This paper has 4 pages and 6 questions.

Candidates must answer THREE (3) questions. Answers may be confined to the law of any jurisdiction in
the Commonwealth Caribbean unless the context indicates otherwise. The exam paper in total is worth 70
marks

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Trinidad and Tobago has gone too far in regulating mediation. While the Mediation Act is an invaluable
contributor in codifying key themes and ensuring high standards in mediators and the mediation process,
court-annexed mediation, on the other hand, takes it too far. Instead of enhancing the mediation process, it
threatens key features that are central to an authentic mediation process.
Discuss

2. Sierra has been employed at New Era Tech (NET), an architectural drawings firm as a drafting technician
for the past 8 years. She is very efficient, meticulous and able to draft complex plans in record time. Sierra
submits her drafted plans to Frank, the chief architect and CEO of NET, for review and submission to
clients. Even though there are other drafting technicians and architects at the company, Frank uses Sierra
as the drafter for the company's most important and difficult work.

While Sierra loves her work and has strong loyalty ties to the company, she has recently been dissatisfied
with some aspects of her employment. She feels that she is underpaid and, with the jecent birth of her
daughter, wants more flexibility in her work hours and to be allowed to work remotelyAsome oays of the
week. Further she feels undervalued in the company and not respected by the young architects of the firm
who view her as a mere technician.

Frank, a shrewd but fair businessman, is very interested in maximizing company profits. He is however
very impressed by Sierra's work and views her as an invaluable asset to the company. He is also "old
school" in his approach to work hours and resistant to the idea of any of his employees working remotely
as he feels it compromises his ability to oversee his staff.

a. Advise Sierra of an approach she could use for negotiating with Frank that would encourage a win-win
outcome on the issues she wishes to be adjusted in her employment. Advise of the stages of such approach,
the key elements of same and strategies she can use to address Frank's resistance to the idea of his
employees working remotely. [18 marks]

b. Would there be any advantage if a neutral is used to facilitate mediation between the parties? [5 marks]

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One year ago Homes Ltd, a real estate company, contracted with Builders Ltd, a construction company,
for the building of a townhouse development for intended sale by Homes Ltd. The contract contained a
dispute settlement clause (DSC) outlining arbitration as the forum for resolving disputes that might arise.
The parties agreed for any dispute to be resolved by a single arbitrator and for any arbitration to be
performed in accordance with the domestic Arbitration Act of the jurisdiction.

The construction is underway and the parties are in conflict. Homes Ltd alleges that Builders Ltd is not
complying with contractually agreed upon plans, quality standards and deadlines. Builders Ltd argues that
any deficiencies in the building process are due to Homes Ltd's failure to meet payment deadlines. Further,
it has been"discovered"thaf Buildersi Ltd''procuf^^^

Homes Ltd has served a notice on Builders Ltd for the initiation of arbitration and has proposed an
arbitrator. Builders Ltd has not responded to the notice, has indicated its unwillingness to proceed with
arbitration and is arguing that the entire contract is void for illegality.

a. Advise, citing the Arbitration Act and case law, on the various ways that the court may intervene if
arbitration is conducted. [12 marks]
b. Assuming that Builders Ltd bypasses the arbitration initiated by Homes Ltd by seeking a declaration
from the court that the agreement is illegal and unenforceable, advise on whether the court
proceedings could be stayed on application of Homes Ltd. [9 marks]
c. Advise on the benefits of arbitration over litigation as a mode of resolving the issues described
above. [2 marks]

4. Discuss the ways that Restorative Justice or aspects of it have been applied in the criminal justice system
in the Commonwealth Caribbean. Include any recent legislation evidencing reform.

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Wade and Forsyth, in describing the theoretical basis for the Ombudsman's effectiveness, state that
"Publicity based on impartial inquiry is a powerful lever". For the Caribbean Ombudsman this statement
is more imagined than real. Ombudsman reports are not publicized, their supposed impartiality is a farce,
and the vagueness and open-endedness of the Ombudsman's function and jurisdiction makes him
ineffective in his role. Thus, in reality, he is a useless lever.

Discuss

6. Jump Up Ltd (JUL) is a popular, long-standing mas band in Trinitaria. The company creates mas costumes
for its customers to use to masquerade in its band through the streets of Port of Pain at the annual 2 day
Carnival event in February. The CEO of JUL, Dale Fete is a seasoned costume designer, entertainer and
event planner.

Beautiful Threads Ltd (BTL) is another mas band. The CEO of BTL is Kenny Fete, son of Dale Fete.
Kenny's first and only love is costume production. Before he started BTL he worked at JUL for a number
of years as the Head Costume Designer. Kenny left JUL because he wanted to focus on creative and
traditional aspects of costume design. He felt that JUL, which is more entertainment and marketing
oriented, didn't quite allow for his preferred focus in costume designing.

It is currently September and an employee of BTL has informed Kenny Fete that the substantial design of
one of BTL's proposed mas; costumes was displayed by JUL, as its own creation, at its recent private band
launch of proposed costumes for the Carnival event in February next year.

Kenny, upset, immediately calls his father. Dale, who does not understand Kenny's fixation on design, tells
him that he would look into the matter with his new Head Costume Designer but is sure that his son is
over-reacting. Kenny is upset at his father's response and wants to protect against what he views as a
violation of his rights. Neither Dale nor Kenny wish for this issue to be publicized for fears of the possible
impact on their companies. Both Dale and Kenny want this issue to be resolved before the coming Carnival
season.

a. Advise the parties of types of dispute resolution processes open to them to resolve this matter [11.5 marks]
b. Advise on the effectiveness of each of the processes chosen above [11.5 marks]

END OF PAPER

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