Caryl Lashley FCIArb on why relationships matter in mediation

We speak to Caryl Lashley FCIArb about growing up around the law, her route into mediation, and why education is key.

What made you choose a career in law?

My father, Sir Orville Turnquest, was an attorney, and only retired from public life as the Governor-General of the Commonwealth of the Bahamas in 2001. He and the late Hon. Eugene Dupuch, a Bahamian lawyer, politician, and Member of Parliament, established the law firm Dupuch & Turnquest in 1960, additionally, Nassau’s law school is named after Eugene. My mother worked as office manager in the firm as well, so most of the business discussion I heard growing up was related to law, and I found what I was exposed to fascinating. While I always thought I would pursue a law degree, I also loved modern languages and looked at the possibility of the Foreign Service. But as I continued with my legal studies, I realised the practice of law was for me.

What was your route into mediation?

Until the early 2000s, my practice was predominantly one of litigation, but my focus changed. I had two matters in which I represented the defendant’s insurance company. One related to a teenager who was in an accident and became paraplegic. The second matter related to a boat incident where there was loss of life. In both instances I acted for the insurance company, who insisted that it wouldn’t pay as there was no liability. After much cajoling and discussion, and after we recognised that both matters could last years, the insurance company agreed to engage a mediator to see if there might be room for some sort of settlement. 

We engaged a mediator who came to us from Canada. At the time, I knew little about mediation, but I had recently completed a 40-hour workshop on dispute resolution though the University of Windsor in Canada. However, neither matter settled and neither plaintiff recovered anything through the Court process.

After that, I pursued avenues to make myself more knowledgeable about mediation. I enrolled in and took advantage of many other workshops and seminars on dispute resolution, culminating with training through Ciarb in arbitration and mediation. By 2012, I had become a Fellow of Ciarb. Since then, I have completed many courses through and with Mediate.com, Mediator Academy, BRDGES, and Mediators Beyond Borders to name a few. Understanding that education was the key to progress in this area, I pursued Train the Trainer courses with Ken Cloke of The Center of Dispute Resolution in Santa Monica, California, and Ciarb, where I am pleased to be an approved member of the faculty. My practice is mainly transactional work, and over the past 15 years, I have ensured that all my clients have a dispute resolution clause in their contracts.

As a sector, we know that mediation, and to a lesser degree arbitration, enables parties to continue in a relationship after the dispute has been resolved. Relationships matter; this has proven to be true and the more we express it, the more people acknowledge and agree with this principle. Education remains the key; today, many people are still unaware of mediation and its value. I spend a lot of my time on dispute resolution education, more so than on actual mediations. People can be initially sceptical, but they learn to appreciate the time and cost-saving aspect of alternative dispute resolution (ADR). People see the value of deciding matters themselves, for themselves, rather than allowing the court to decide for them.

How important is it for you as a mediator to understand developments in other parts of the dispute resolution sector?

The court rules have now changed to encourage mediation before one sees a judge. The Bahamas has now passed and gazetted the International Arbitration Act, and we have also updated the amended Domestic Arbitration Act. We continue to work on the Domestic Mediation and Mediation Settlement Agreements Bill and the International Commercial Mediation and International Settlement Agreements resulting from earlier Mediation Bills. Hopefully, we shall proceed to enact these two pieces of legislation soon. 

What are the key differences between working as a mediator and an arbitrator?

Generally, when I receive an appointment as an arbitrator, it’s clear-cut. The parties are usually represented and well prepared. Those who aren’t represented understand the process. When I am appointed as a mediator, the parties often come without counsel. They appreciate the freedom and flexibility that the court process doesn’t offer. They appreciate the opportunity to tell their story themselves. While the issue of ‘winning’ shouldn’t be a part of mediation, parties come to the table with some hope that they might prevail. In addition to the continued relationship at the end of the day, the ability to take the participants in a dispute to “the next level” in terms of relationship-building and reality-checking is probably the most rewarding aspect of the mediation process. When I have a mediation matter which does not end in a settlement, I encourage parties to take a break, and try again; otherwise I encourage them to try arbitration.

How can we encourage a mediation-first culture?

Education – continued and persistent education. We also must demonstrate the value of relationships and ask people to do some reality-checking. We must promote and encourage programmes in schools and organisations to make “Peace”, “Relationships Matter”, and “Win/Win Agreements” the watchwords. Rome was not built in a day, and a mediation-first culture won’t take root and grow overnight. We must encourage and nurture it, leading by example, articulating the process, and encouraging change. To me, the continuous promotion of ADR with all my clients, friends, and family has kept me visible. I have persevered and have consciously conducted myself in a manner which promotes peace and encourages relationships. I use every opportunity to say that “relationships matter”!

At the moment, Bahamians aren’t sufficiently knowledgeable or prepared for a practitioner to sustain a career in dispute resolution. We are, fortunately, well on the road to success in dispute resolution outside the court. The reality is that the change starts with us. If we consistently demonstrate the change we wish to see, we shall change the way we do business, and those with whom we do business will do likewise. Perseverance, that is the key!

Caryl Lashley FCIArb is a barrister of more than 40 years' standing with experience in Litigation, Family, Corporate, Employment and Trust matters. A Fellow of the Chartered Institute of Arbitrators, she is proficient both as an arbitrator and a mediator. Her professional memberships include: the International Federation of Women Lawyers (FIDA); The Society of Trust & Estate Practitioners (STEP); Mediators Beyond Borders International; mediate.com; Mediator Academy; International Bar Association; Bahamas Bar Association, where she served as Secretary from 1992 -1995, and as Chairperson of Ethics Committee, 2000-2017. She is currently Chairperson of the ADR Committee of the Bahamas Bar Association. A Fellow of the Chartered Institute of Arbitrators since 2012, in 2014 she obtained an advanced certificate in Trust and Estate Mediation Having been designated by The Bahamas Government to serve on the International Centre for the Settlement of Investment Disputes (ICSID) Panel of Arbitrators and of Conciliators, Caryl was re-designated in 2020 to serve for the next six years. Additionally, Caryl was invited to participate in ICSID’s first Mediation Training in June 2017 at the World Bank in Washington DC. More recently, she undertook Train the Trainer Mediation Training with Ken Cloke in April 2018, and similar training offered by the Chartered Institute of Arbitrators in 2015 and 2020.

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