In photo: Rik Bergman
~ An overview of growth in civil mediation on St. Maarten ~
By Alita H. Singh
A couple on the verge of divorcing has at stake the well-being of their children, their joint property and other assets. Similarly, when business partners, who have worked tireless hours to build a successful enterprise, realise they are at odds with each other, years of sacrifice and commitment seem doomed.
Fuelling neighbours are at their wits’ end and after ticking time bombs. A contractor and a client cannot get past their disagreements about payments and work actually completed.
In all of these scenarios, the first thought is for one part to file a court case to have a neutral party – a judge in civil court – decide the way forward for them. This option is not only costly. It presents a winner and a loser, no middle ground.
There is, however, another option that has taken some root in St. Maarten in the past half a decade – mediation. This route allows parties to sit with a neutral person who can listen to both and guide them through bottlenecks. The financial cost is less than going to court and the emotional and long-term cost is better.
Seasoned mediator, attorney-at-law Rik Bergman was the first certified mediator to establish his practice on St. Maarten more than five years ago. He had been on the cusp of this option’s growth. Now, along with him, there are four other certified mediators: Angela Dekker, Aernout Kraaijeveld, Leona Patrick and Alberta Brom, who have an expanding list of cases on their dockets.
“There was this idea that mediation was not fit for St. Maarten. It was too small. Everyone knows everyone,” said Bergman, who was inspired to look into the possibility of being a certified mediator as per his personal development and after serving as Dean of the St. Maarten Bar Association. The latter underscored the need for another option for clients and lawyers to deal with their disputes.
The University of Utrecht trained attorney added, “I thought, ‘why not give it a try; either it works or it doesn’t.’” And it did work. The start of mediator practice brought a number of cases to this door. “Awareness about what mediator does and that confidentiality was very possible allowed for growth. People generally want to maintain good relationships and this can be done through mediation.”
Bergman, who is a long-time civil law attorney of BSZE Law, said he was “surprised at the cases” that came his way in the beginning years. What he is even happier about is the coming on board of his fellow mediators. “This is a positive development. It means there are more options for clients. They also have a choice with the varied backgrounds and expertise of the mediators,” he said.
“There is a demand for mediation. The increase in mediators proves this; and growth shows that mediation can work and is working for St. Maarten,” Bergman said.
Kraaijeveld is a University of Groningen trained civil law attorney with the firm of Gibson and Associates. Dekker did Pedagogical Sciences with specialisation in Juvenile law, Research and Management at the University of Utrecht. Patrick’s background is from the Nutsacademie Rotterdam (Hogeschool Rotterdam) and she is an active parenting trainer in addition to being a mediator. Brom is also a civil law attorney trained at University of Utrecht with a background in Psychology.
Bergman’s areas of competency are government, business (employment, shareholders and corporate disputes), real estate, construction and estate disputes/negotiations. Kraaijeveld’s are Trade and corporate disputes; and Dekker covers education, family, government, private sector and construction.
Among the mediators, they can provide services in five languages – Dutch, English, Papiamentu, Spanish and French.
Why go to court when mediation is a less costly and shorter process? “I have been litigating for 10 years, and more than a few of my court cases should not have gone to court. Those court cases solved nothing. Some may have been a win for one party on one specific issue, but the main dispute between parties was not resolved,” said Kraaijeveld.
A lot of court cases are about legal weak points that are very interesting to lawyers and judges, but have absolutely nothing to do with the reasons why people are fighting, Kraaijeveld explained. “Mediation can take a dispute out of the legal context and help work out a solution that both parties can live with.”
Kraaijeveld added, “Litigation should be a last resort. If you can’t work out your problem with someone, a professional mediator has the tools to help people talk to each other again and help them move forward without going to court.”
The focus of mediation is “keeping the relationship. There is a solution, not an abrupt ending. If you are able to restore a relationship – be it a business one or related to the family – why not work on that? This is a route that helps to restore confidence and gives parties time to heal. Both sides get an opportunity to tackle the core issue and solve it,” said Bergman.
“Mediation seeks more communication. The mediator is the referee. You are there to find a way to make a beginning for the two parties,” said Bergman. “The smaller the community, the better mediation works, because we have to still see and interact with each other even after a dispute. It is better to work on salvaging the relationship.”
Going the route of mediation, instead of filing a court case, is completely voluntary. Parties can decide that they want to look at their options before ultimately going to the law, said Bergman. “I have had cases where only one party wanted to do mediation and the other reluctantly came along. In the end, it worked out.”
However, in a court case, the judge can decide to send parties to mediation. This often comes with a timeline. If parties work it out with a mediator, the court case can be scrapped. To avoid any lengthy process, Bergman advises that contracts should have a mediation clause to help when there is a dispute.
Following the devastating 2017 hurricanes, many disputes and clashes arose that without the availability of mediators would have further clog up the already burdened court system. These cases would have been lengthy while parties just had to wait for a winner and loser in the judge’s verdict.
Dekker pointed out there was and still is an “urgent need for mediation” after Hurricane Irma. “Persons who have experienced catastrophic loss and then face additional ongoing tragedy and loss, may not trust their own judgement … that’s why the need for impartial and neutral mediators between the politicians and experts who are victims, and the politicians and experts who are on the other side of the ocean.”
“Mediation in family affairs is important for the whole family, including the children. Because of the emotions of both parties involved, a neutral, unbiased mediator could be of support,” Dekker said.
The need for more mediators exists in the country, said Dekker. Becoming a mediator does not mean you need a law degree. Interested persons must be motivated to help others, have the ability to listen to both sides and be able to guide parties to come to their own solution. All of the mediators operating in the country have undergone extensive training and are registered as mediators. The mediation course can be followed in the Netherlands or even in the United Kingdom.
The mediators also do not operate in a vacuum. They are part of a wider network. For instance, Dekker is registered at Quality Register Federation for Mediators in the Netherlands MFN and is a member of the Caribbean Mediators Association.
