PD-2022/3 – Practice Direction 3 of 2022 - Judicial Mediation Guidelines (SL 33 of 2022)

HE AS HATH FOUNDED IT UPON THE SE Grand Court Act (2015 Revision) PD 3 OF 2022 - JUDICIAL MEDIATION GUIDELINES (SL 33 of 2022)

PRACTICE DIRECTION No.3 of 2022 JUDICIAL MEDIATION GUIDELINES Purpose The Courts of the Cayman Islands are committed to resolving disputes in the most efficient manner possible, including the use of non-adjudicative processes. Accordingly, Judges and Magistrates will in appropriate cases encourage parties to engage in mediation. By the Overriding Objective the Court's duty is to manage cases so as to help the parties to settle the whole or part of the proceedings. To this end several members of the judiciary have been trained and certified as mediators. They are ably supported by a professionally trained co-ordinator. The purpose of this practice note is to set out the guidelines for the referral of matters to judicial mediation and the procedures for the conduct of judicial mediations in other than family cases. The mediation procedure applicable to the Family Division will continue to apply. Referral to Judicial Mediation A matter may be referred by the Court to judicial mediation at any stage in the proceeding in keeping with the Overriding Objective, the MIAMs procedure in the Family Division of the Grand Court and Practice Direction 4 of 2022 on the Listing of Civil Proceedings in the Civil Division Short Summonses and Assigned Judges. By virtue of section 29 of the Grand Court Act, a judge acting as a judicial mediator has the same immunity as a judge acting judicially. Criteria for Referral to Judicial Mediation A matter referred to mediation will usually have one or more of the following features: · an earlier unsuccessful private mediation; · one or more parties with limited resources;

· a substantial risk that the costs and time of a trial would be disproportionately high compared to the amount in dispute or the subject matter of the dispute; · an estimated trial length that would occupy substantial judicial and other court resources; or · aspects that otherwise make it in the interests of justice that the matter be referred to judicial mediation. There are proceedings which, as a matter of policy, may not be appropriate for mediation. The following disputes will not ordinarily be referred for mediation: · cases involving the resolution of a matter of public importance which, in the public interest, ought to be heard in open court; · cases in which the Court is to review the exercise of a statutory power or discretion; · cases in which the commission of a crime or serious misconduct is alleged in the context of a civil proceeding; and · cases in which there is a litigant in person. Preparation for the judicial mediation Directions regarding preparation for the mediation will be made at a MIAM or preliminary case conference. The parties will be told when and where the mediation will take place and who is to attend. Parties will usually be provided with a statement of the proposed course of the mediation. Representatives are welcome to attend. Parties will be informed prior to the commencement of a mediation of any pre-conditions, expectations or particular requirements. These may include a requirement to provide specified documents and other information, position papers or confidential offers. Confidentiality Parties and other participants are to protect the confidentiality of all that is said and done by any person in the course of the conduct of a mediation. It will be the usual practice of the mediator to destroy all materials provided to or prepared by the mediator and any other court officer participating in the mediation, following completion of the mediation, whether successful or not.

Attendance at mediations A mediator may authorise the attendance at a mediation of persons other than the parties and their legal representatives. Participation of all persons in the mediation will be under the direction and control of the mediator. In the absence of the mediator's express authorisation to the contrary, it is expected that the mediation will be attended by parties or representatives of the parties who have full authority to settle the proceeding. Participation by telephone or video-link will be allowed only in exceptional circumstances. The mediator will inform the parties of the identity of all attendees prior to the commencement of the mediation. Legal advice or assistance 16.A A mediator will not evaluate issues in dispute or provide legal advice to parties, and will not assist with the preparation of any terms of settlement. When agreement is reached the mediator may give guidance for the settling of the terms of agreement 16.B. The settled terms of agreement, may with the consent of the parties, be embodied in an order of the Court to be executed by the mediator in his or her judicial capacity and in which event, will become binding as such. Meeting Separately with the Parties - Caucusing Mediation styles and practices will differ between judicial mediators. Some mediators may be prepared to caucus, depending on the nature and circumstances of the case. Other mediators may not be prepared to do so. A mediator will not meet separately with a party and their legal representatives, or with the legal representatives of a party, in the absence of some or all of the other parties, without the express approval of all parties to the mediation. Information provided by a party to a mediator in a separate session will not be disclosed to any other party unless the mediator has been expressly authorised to do so. This will not restrict the mediator from terminating the mediation upon receiving information which by its nature is open to an interpretation of illegal, improper or unethical conduct. Adjournment A mediator may adjourn the mediation to continue at a later date, either under the conduct of the same or a different mediator.

If the proceeding fails to settle at mediation, the mediator may give directions for the further conduct of the proceeding in their capacity as a judge or associate judge. Subsequent trial No member of the Court will hear and determine an issue in a proceeding in which that person acted as a mediator, or where he or she has become acquainted with any confidential information relating to the mediation of the dispute (e.g. where confidential information was provided in preparation for a mediation that was subsequently conducted by another judicial officer): Sir Anthony Smellie Hon Chief Justice 15 August 2022