Over 40 species of butterfly have been recorded in the Turks & Caicos Islands. They range from the large and showy Bahaman Swallowtail (Heraclides andraemon) down to the tiny Pygmy Blue (Brephidium exilis).

While most of the species range throughout the Islands, some are quite local in their distribution. The Swallowtail, for instance, is strictly limited to the Caicos Islands. This is because its larval food is citrus trees, and they are insufficient in the Turks Islands to support a breeding population.

Indeed, it is a feature of island biogeography that larger islands have a larger number of species of any given thing. That may seem obvious, but in fact the correlation between area and number of species is precise and predictable. It follows, therefore, that the Caicos Islands (being much larger than the more isolated Turks Islands) can be expected to have a greater variety of butterfly species, as in fact they do.

One species is special to the Islands — the Turks Island Leaf Butterfly (Memphis intermedia). It gets its name from the camouflage pattern on the underside of its wings: when closed they make the insect look like a dead leaf. At one time it was believed to be unique to the Turks Islands, but then it was discovered in the Caicos Islands and then in Inagua, while other subspecies were found to occur elsewhere in the southern Bahamas.

That raises an interesting question — has it extended its range in recent times, or has it always been in these other places but nobody ever noticed? The latter is likely to be the answer. In the past, much of the research on the lepidoptera of the West Indies was done by means of intensive field studies by academic expeditions. If they concentrated on one island, they would miss what went on in the others. Moreover, many species of butterfly are only on the wing for quite short periods at specific times of year. Someone who visits at any other time is likely to miss them.

Much of our information about the butterflies of the Turks & Caicos derives from the observations and field work of Robert St. Leger, who was Development Finance Officer here in the early 1980s. He was a keen collector of butterflies and he published his findings in an article which appeared in the magazine Turks & Caicos Current in 1983. He recorded 37 species. More recently Dr. Oliver Cheesman, working with the Darwin Initiative under the auspices of the Turks & Caicos National Trust, has built on St. Leger’s foundation with field work on Middle Caicos, supplemented by exhaustive research. However our state of knowledge is still such that the amateur observer has an important role to play.

The TCI butterflies fall into seven families: Danaidae (Monarchs); Nymphalidae (Brush-footed butterflies); Heliconidae (Heliconias); Lycaenidae (Blues); Pieridae (Sulphurs); Papilionidae (Swallowtails); and Hesperidae (Skippers). In this article I give a brief account of each.

The Danaids

The Danaids can be disposed of fairly quickly. They include the splendid Monarch butterfly (Danaus plexippus plexippus). The North American form is migratory, and covers large distances en route to its wintering grounds in Mexico, and many turn up in the TCI in the Fall and Spring. There is a very similar sedentary form (Danaus plexippus megalippe), which is believed to breed in the Caicos Islands (and elsewhere in the West Indies). The specialist can distinguish them by the absence of any white spots above the forewing cell, but to the rest of us they look the same and are equally spectacular.

Of more local interest is The Queen (Danaus gilippus), which occurs throughout the TCI. It is a large insect, with beautiful chocolate brown wings decorated with bright white spots at the tips. It is most often seen during the winter months.

The Nymphalidae

The Nymphalidae are the classic butterflies. They are called “brush-footed” because in males the forelegs are reduced to brushy appendages, useless for walking. They include the Turks Island Leaf Butterfly mentioned earlier. Their other common representative in the TCI is the Caribbean Buckeye (Junonia evarete), whose brown wings are distinguished by three large ocelli, or eyespots, on each side.

The other members of this family occur less commonly: the Mexican Fritillary (Euptoieta hegesia) has been recorded in Middle Caicos around Lorimers; the Painted Lady (Vanessa cardui) is an occasional migrant; and the Mimic (Hypolimnas misippus), an African species believed to have been introduced to the West Indies on slave ships, has recently been seen in Grand Turk.

Gulf Fritillary

The Heliconidae are classic tropical butterflies, distinguished by their long forewings. Their only representative in the TCI is the Gulf Fritillary (Agraulis vanillae). Orange above, with black spots, its underwings are highlighted by bright silver patches. It is common in the TCI (as it is throughout the American tropics), and is on the wing for most of the year. Its caterpillars are covered in fleshy spines and feed on members of the passionflower family, several wild varieties of which grow in the Islands.

The Lycaenidae

The Lycaenidae are a fascinating and diverse group of blue butterflies, but they are all small and often overlooked. The best place to find them is feeding on the flowering bushes that grow on the foreshore, and in particular the Bay Cedar (Suriana maritima) and the Bay Lavender (Mallotonia gnaphalodes). The larger members of the family are called Hairstreaks, and they sport filamentous tails which seem to wiggle with a life of their own — perhaps functioning as dummy antennae, because they are often matched with eye-spots, to distract predators from the head.

All members of the family are an electric blue above, but they rarely perch with their wings open, so you usually see them with the wings held closed above the body. The underside of their wings are usually gray and bear elaborate patterns of dots and dashes, which is one of the ways you can tell them apart. For the smaller blues, the other distinguishing feature is the number and shape of the eye-spots at the back margin of the wings.

The largest of the Hairstreaks is Strymon martialis. The very similar Strymon acis can be found on North and Middle Caicos. It is distinguished by two tiny white spots in front of the white bar on the underside of the hind wing. The dainty Strymon columella is found throughout the Islands and can be very common at times. The smallest, and also the most beautiful of the Hairstreaks, is Chlorostrymon maesites, which is a dark blue above and bright green below.

The other small Blues are hard to tell apart. They include Leptotes cassius, Cyclargus hanno, Cyclargus ammon and possibly Cyclargus thomasi (which is only distinguished from C. ammon by the presence of one extra small spot on the underwing). All seem to fly at the same time of year and to feed on the same plants, and so can often be found together.

The Pygmy Blue (Brephidium exilis) is, as its name suggests, the smallest, measuring a quarter of an inch high with its wings closed, and its underside has a coppery tinge. It is more specific in its habitat than the others, being most commonly found in marshy areas in association with the low-growing succulent Sesuvium portulacastrum.

The Pierids

The Pierids are either yellow or white, and they come in two sizes — large or small. They never, ever perch with their wings open, but always shut them the moment they land. Although 12 species are recorded for the TCI, some are highly migratory and so may occur only sporadically in the Islands. Many of the smaller ones are inconspicuous and hard to tell apart. I have not, therefore, tried to list them all.

Of the big Pierids, Anteos maerula and Phoebis agarithe are the most spectacular, although the former is quite uncommon. The commonest is Phoebis sennae.

Of the smaller ones, the rather dull Eurema elathea is common on Grand Turk, where it likes to keep down among grass stems. The tiny Eurema dina and Eurema chamberlaini are much brighter, and seem to be limited to the Caicos islands. Kricogonia lyside is perhaps the hardest of all to spot — it is a leaf-mimic, and its wings have a green tinge and are shaped to look like leaves. It is common throughout the Islands.

The Papillionidae

Three species of Papillionidae have been recorded in the TCI, but of these Battus polydamas is probably a vagrant, while Heraclides aristodemus has only been recorded from the woodlands around Kew, in North Caicos. The spectacular Bahaman Swallowtail (Heraclides andraemon), on the other hand, is quite common throughout the Caicos Islands, but unknown on Grand Turk.

The Hesperidae

Finally there are the Hesperidae, or Skippers. These are furry little creatures, easily mistaken for day-flying moths. They can be distinguished from all other lepidoptera by their antennae, which are hooked at the end. Other butterflies have club-shaped antennae, while those of moths come to a fine point. For this reason Skippers are sometimes placed in a sub-order of their own, the Grypocera.

Most Skippers are wary and fast flying, which makes them hard to see. Eight species are thought to occur in the TCI, but they tend to be pretty dull and difficult to tell apart. The Long-tailed Skipper (Urbanus proteus) is the most showy (or rather, the least dull!) with its long tails and blue body, while the bright orange of the Fiery Skipper (Hylephila phyleus) makes it stand out.

Most Skippers either close their wings when at rest or hold them in a unique configuration, called “tenting,” in which the hind wings are held out flat and the forewings are held vertically. However there is a distinct group, known as open-winged Skippers, which perch with the wings open like other butterflies. This group is represented in the TCI by Ephyriades brunnea, which can at times be very common in the Caicos Islands, although I have only ever seen the occasional wind-blown specimen in Grand Turk. Its wings are a dark brown, often verging on black, which makes it very unusual and easy to spot.

That concludes this brief overview of TCI butterflies. It is not comprehensive and until a full field study is done, no list will be complete.

Migrant species can complicate the picture. Moreover, insect populations on small islands can be ephemeral, some species dying out locally as habitats change (or are changed by the activities of man), and new ones arriving and finding their own niche. The TCI is close to several large islands such as Cuba and Hispaniola, which have large and diverse butterfly populations, and you can never tell what might turn up.

Richard Ground served as Chief Justice of the Turks & Caicos Islands from 1988 to 2004, now holding the same post in Bermuda. When not at work, his main interest is wildlife photography, and Times of the Islands readers have been treated to his superb photo-essays on birds and seashells over the years. This feature on butterflies likely marks the last of his contributions and they will be sorely missed.

Jacques Derrida is dead. He died on October 9, 2004 at the age of 74. Derrida was a French philosopher who recognized the importance of language in shaping our perception of the world around us. He pioneered a field of critical theory called deconstructionism. The approach argues that all writing has multiple layers of meaning, which even the author might not understand. Written language is thus open to an endless process of reinterpretation. It can be compared to peeling back the layers of an onion.

“Talking Taino” is all about language. For the most part we have dealt with words that name particular plants, animals and activities; but we also have tried to show the ways in which Taino beliefs, myths if you will, structured the meanings of particular species and behaviors. Moreover, we are constrained by the fact that the Tainos did not have a written language. In this regard we must rely on the Spanish chroniclers for the Taino words that had importance and meaning. They are translations that cannot possibly capture the meanings that were understood by native speakers.

Vincent Van Gogh is also dead. He died a long time ago (1890), but he left a lasting mark on the world. His schizophrenia shaped an artistic palette that distorted the colors and hues that the “normal” brain perceives. One of the most acclaimed paintings of this postimpressionist artist is titled Starry Night. In it, and in his other works, he depicts things that the rest of us do not see.

Derrida and Van Gogh remind us that we live in a world of language and impressions, and that these may not fit our own modern beliefs or interpretations of the natural world. We tend to look at the world according to what we read and see; yet looking beyond what we usually see to that which we don’t see can enrich our lives. One of the most impressive things that we no longer see is the starry night.

Sitting on the beach at Jacksonville Harbour, East Caicos, we were finishing our one-pot meal of Thai chicken in peanut sauce that had been cooked on a small gas stove when we began to detect a humming in the bush behind us. As the sound grew in intensity we dove for our tents as swarms of mosquitoes (in Taino jejen) descended upon us. Trapped in our nylon cocoons we waited impatiently. Two hours later we emerged to a new world. Most of the mosquitoes had gone to bed, and we were immersed in the glow of starlight. Our surroundings were dominated by the brilliance of the heavens.

It is likely that similar scenes were played out every day for hundreds of years by the Taino peoples who inhabited these islands (although they didn’t have Thai chicken for dinner, they did grow peanuts, which they called mani). The darkness of the surrounding forest was a dangerous place at night where opias (spirits of the dead) wandered eating guavas and sweet fruits while searching for the living. But the village was far from dark. The night only seems dark to those who find incandescent lights a necessity. As John Denver wrote in his song Rocky Mountain High, “the shadows from the starlight were softer than a lullaby.” You have to experience it to believe him.

Although the night time held particular dangers, it also provided opportunities. Tainos who paddled a canoe from the Turks & Caicos to Haiti during the day ran out of visual landmarks soon after passing Bush Cay. Bush Cay is five miles south of Big Ambergris Cay on the Turks Bank, within the Seal Cays Wildlife Sanctuary. However, the night sky offered thousands of points of reference. It has long been the ideal map for sailors.

The night sky also offers a more encompassing display by which the passing of the seasons can be observed. It is true that the sun provided some hint of the passing of time, but the night sky is superior in this regard.

Dr. Shaun Sullivan pioneered the study of Taino astronomy in the late 1970s during his research at the Taino site called MC-6 on the south coast of Middle Caicos. At the middle of the site he found a stone-lined courtyard. This court is a remarkable piece of engineering. It is virtually flat, exhibiting only 10 cm of grade despite 500 years of weathering. It was constructed with soil carried from the salina along the south side of the site. The northern and southern margins of the court are flanked by double rows of undressed limestone that are incorporated into earthen ridges. Sullivan’s topographic map showed that the double rows of stones were not parallel but instead bow proportionately along their course. At either end the court is about 13 meters wide, and at the middle it is about 19 meters wide. In addition, there is a large stone that had been set in the center of the court.

The rest of the settlement is organized around the court. There are eight structures with stone foundations surrounding the court. Sullivan found that when a transit was positioned over the central stone and then pointed at a structure mound on the periphery of the plaza, turning the transit 180 degrees intersected a complementary structure mound on the other side of the plaza. In addition, two other stone foundations were precisely reciprocal in that both had prominent high points on the side toward the plaza. When the transit was set over the central stone and the crosshairs centered on the mid-point of one of the structural prominences and then flipped, the prominence of the reciprocal structure was bisected precisely. The prominences were not functionally integral to the structures to which they were attached. They seem to have been used for some manner of sight alignment.

The main alignment through the center of the court conforms to the rising and setting sun on the summer solstice, an event that Sullivan observed firsthand in 1981. Sullivan also identified a number of other alignments with the rising and setting of stars that are significant in Native American astronomy. The most significant of which are alignments with the rising and setting positions of Betelgeuse, one of the principal stars in the constellation Orion. In fact, the structures are not all exactly aligned around the court, and Keegan has shown that their alignment seems to represent Orion. The court served as a direct link to the heavens as an observatory that marked important cosmological events.

Orion is located on the celestial equator and has 3 of the 25 brightest stars in the night sky (Betelgeuse, Bellatrix, and Rigel). The stars of Orion are exceptional even in a night sky diminished by modern light pollution. Because the belt of Orion is aligned with the equator and sits at the center of the tropical sky, it has served as an important constellation in many native South American cosmologies. For them, Orion was the one-legged man.

Orion follows a cycle that provides an obvious means for telling time and marking the seasons. It makes its first appearance low on the horizon at dawn in early July and appears higher and higher each morning until mid-September when it is at the center of the sky at dawn. By mid-December, Orion sits at the center of the midnight sky. By mid-March, it is at the center of the sky at sunset, after which it appears lower and lower on the horizon each sunset until disappearing in late May. In this way, Orion can act as a marker for the summer and winter solstices and the vernal equinox. One reason for using Orion is that his circuit through the sky marks the beginning and end of the wet and dry seasons so important for tropical farmers, and he is associated with periods of good and bad fishing.

The Taino word for sky was turey. This also was the Taino word for the brass objects brought by the Europeans; they believed the brass had mythical origins and therefore came from the sky. Orion also had a mythical identity in the guise of the chief Anacacuya (literally “light of the center”). According to the Taino myth recorded by Ramon Pane in 1498 in northwest Hispaniola, Anacacuya was a prominent cacique who was drowned by his brother-in-law Guayahona, because Guayahona wanted to take all the women of the village for himself. While on a canoe trip, Guayahona told Anacacuya to look closely at a beautiful cobo (seashell) in the water, then toppled him into the sea. Each night, stars set into the sea and are born from the sea. Through the water, Anacacuya was able to enter the supernatural world of the sky and become Orion.

One of the best ways to experience the pre-modern world is to observe the night sky. In most places this has become impossible due to light pollution. We no longer live in places where the horizon is completely dark at night. Yet the Turks & Caicos Islands offer several unique opportunities.

There are very few places in the world — and Grand Turk is among the best — where you can watch the full moon rise at dusk from the sea on one side of the island and then travel to the other side to see it set at dawn back into the ocean. This is an exceedingly rare and rewarding (not to mention romantic) experience.

Ecotourism is all about getting close to nature in all of its “pristine” beauty. The night sky dominates half of our existence, yet it is rarely viewed in its pristine state. It would not be hard to arrange trips to places in the Turks & Caicos where you can still observe the night sky away from the glow of the bright city lights. The result will be a truer appreciation of the role that the night sky played in the lives of the people who first lived in the Islands, and a clearer vision of the starry, starry night.

Dr. Bill Keegan is Curator of Caribbean Archaeology, Florida Museum of Natural History, University of Florida, Gainesville, Florida. Dr. Betsy Carlson is an archaeologist with SEARCH, Inc. Gainesville.

Caribasian Resort & Residences

By Kathy Borsuk~ Artwork by Kevin Melbourne

Many travelers find themselves captivated by the mysterious charms of the East. Its ancient blend of energy, peace and wisdom grows ever more compelling as the Western world becomes increasingly chaotic. As well, the standards of its high-end hospitality industry are unparalleled. With this in mind, the developers of Mandalay Grace Bay recognized a unique opportunity to marry classical Asian flair with the natural beauty of the Caribbean and in doing so, created a brand-new genre for their luxury resort and residences.

Purity and perfection: the Caribasian lifestyle
Caribasian style marks life at Mandalay on Grace Bay, among the newest developments on Providenciales’ famed “Gold Coast,” regularly lauded as one of the finest beaches in the world. At Mandalay, Asian style and design elements are blended with a contemporary Caribbean lifestyle and accented with elegance to create an intriguing choice for investors.

With a prodigious 610 feet of Grace Bay Beach frontage (among the highest of resort developments) and over 17 acres stretching to Grace Bay Road, Mandalay has the raw materials to create an oasis of Caribasian tranquility. Planned for the gated community are 126 condominium suites in four oceanfront and oceanview buildings; 12 private villas; a 52 suite, five-star boutique hotel; a 20,000 square foot, world-class spa and a restaurant, beachfront pool bar and retail courtyard. The facilities will also include a ballroom, state-of-the-art fitness gym and cutting-edge business/
conference center.

Each element is carefully crafted to reflect the ultimate in luxury. For instance, the eight penthouses — ranging in size from nearly 5,000 to almost 9,000 square feet — are the largest currently available in the Turks & Caicos and include private rooftop plunge pools and hot tubs overlooking the ocean. An underground tunnel system ensures that maintenance, housekeeping and room service requests are handled unobtrusively.

Water — be it the rhythmic tumble of waves, comforting splash of a fountain or soothing sight of a reflecting pool — symbolizes tranquility and is a hallmark of the Mandalay site. Framed by a magnificent seascape of ivory and turquoise, an oceanfront infinity pool leads a progression of waterways that stretch between the condominium buildings to the hotel, inviting an unobstructed liquid view from the lobby.

Each condominium building is aptly named with a Zen symbol: Zendo and Karma are based oceanfront, while Mantra and Sutara stand just behind and are angled to maximize ocean views. Each level features several unique floor plans in various sizes and configurations, culminating in the magnificent penthouses on floors six and seven. All have oceanfront terraces, with Great Rooms and ensuite master bedrooms up front, to enjoy the best views. Media rooms are standard, as is a “lock-out suite” capacity for all additional bedrooms, which can be rented as vacation suites when not in use by owners. All units include innovative circulation cores that lead to the elevators.

Another residential option is the Kokoro Villas, a separate community of six duplexes, each with three bedrooms and four baths in over 4,100 square feet. Designed for spaciousness, they feature an expansive patio lining the width of the Great Room and kitchen, opening into a tranquil garden with private plunge pool. The ensuite master bedroom is surrounded by a separate deck with indoor/outdoor showers and private Jacuzzi terrace/yoga platform and massage areas.

The Asian-inspired architecture of Mandalay residences is enhanced with a blend of classical, contemporary and Caribasian decor, combining colors, textures and shapes into an ageless harmony. Flooring includes imported marble and travertine, richly burnished hardwoods and plush broadloom. Kitchen cabinetry is solid hardwood, with Miele and Viking appliances, while master baths include granite vanity tops with Kohler and Toto fixtures.

Also planned for the Mandalay is a state-of-the-art spa, incorporating the latest in holistic therapies and treatments from the East and beyond. The restaurant will serve the finest in exotic Asian and international cuisine. Towering palms guard the entranceway and parking areas, while intricate gardens hide private areas for contemplation and meditation. Conference facilities and a ballroom will complement the 52 unit, five-star hotel and fitness center with two tennis courts that are open for use by both residents and guests.

Wisdom and enlightenment: the Mandalay’s development
Appropriately, the project’s background reflects the Zen attributes of wisdom and patience. The huge Grace Bay site was purchased by Elberton, Georgia based Frank Coggins over 20 years ago. As the largest private landowner on Grace Bay, Coggins held firmly to his vision of the Turks & Caicos as an upscale destination . . . and now believes that the Islands’ time has come. Under his company Jeanette Caribbean Ltd., Coggins also owns the Village at Grace Bay, an 81-acre town center project just south of the Mandalay, also currently under development.

For both projects, Coggins teamed up with Sean Reid, Managing Director of Precision Development Ltd. A third-generation real estate developer, building contractor and entrepreneur, Reid has worked on extensive projects globally and is a self-described “ultra-perfectionist.” This, he says, explains the relative lack of information published about either project until recently. “In my experience, there are more dreamers than doers out there. I am definitely one of the latter. My reputation depends on ensuring that every step we take is right before we make anything public.”

Over the last year, Reid has been busy assembling the Mandalay team, which includes world-renowned Argentinian architect Rafael Amuchastegui (RAD Design) and APEC Architects. RAD is known for Providenciales’ The Palms Resort and Spa and The Veranda; the Amaan Village Resort in Saudi Arabia and the Burj al Arab Hotel Tower in Dubai. Major international building contractor Sir Robert McAlpine will oversee the design/build under a joint venture with Precision. Local firm Benchmark Survey Associates, led by Patrick Hayward, will use their intimate knowledge of the area to provide land survey, engineering, site planning and project management services.

With pre-sales taking flight, Reid estimates that Mandalay construction will commence mid-year 2006. Real estate agent Rob Muller of Pinnacle Properties, working with Lyle Schmidek of Grace Bay Realty, invites potential investors to visit the oceanfront sales center (due to open in April, 2005). Schmidek says that interest has been very high, with positive feedback to the uniqueness of the property, spacious floor plans and great cost-per-square-foot pricing.

For more on Mandalay on Grace Bay, visit www.mandalaygracebay.com or contact Pinnacle Properties at 649 946 8111 or Grace Bay Realty at 649 941 4105 for a private presentation.

Although the Turks & Caicos still have no formal recycling program in place, one local entrepreneur has taken matters into his own hands: turning empty conch shells into stunning pieces of home decor.

Phil Thompson, president of Thompson’s Conch, uses a patented process in which crushed conch shells are embedded in a laminate matrix to create exquisite countertops, vanities, tabletops, lamps, planters and even furniture backings and arms. The material is ground and polished to a durable gloss finish and an intriguing beauty all its own. As no two pieces of conch shell are alike in shape or color, the product’s gleaming surface is a kaleidoscopic array of whorls, shards and chips in countless shades of pink and white.

A native of Harbour Island in the Bahamas, Phil says he’s been developing the idea for over seven years after watching fishermen knock conch at a local regatta. “I saw the tremendous number of conch shells that were being wasted and I knew there had to be something useful to do with them.” He experimented with a variety of techniques and was eventually awarded a patent and trademark rights to the process.

As a pilot for Bahamasair, Phil regularly flew to the Turks & Caicos Islands, where he met and married Belonger Rochelle Brown. Together, they built the factory on South Dock Road in Chalk Sound, Providenciales, purchased the first load of conch shells from Bugaloo’s bustling conch salad restaurant in Blue Hills, and opened for business in early 2004. Phil soon diversified into woodworking to supply the cabinets and furniture on which the conch shell countertops and inlays are placed.

Thompson’s Conch products are sold at W.I.I.F. (West Indies International Furniture), with samples displayed at their showroom in The Saltmills in Grace Bay. During a recent visit there, I saw first-hand a customer’s ecstatic reaction to the material (“It’s so cool!”) and witnessed her plans to use it as a desktop in her home office.

W.I.I.F. owner Franck Aubert works with Phil on marketing and sales and is very excited about future possibilities, especially custom designed items. Franck says, “I like to focus on non-standard, high quality, one-of-a-kind pieces. Right now, we’re doing some wonderful benches, chairs and coffee tables that use conch inlays with teak wood and fabrics.”

In fact, Phil says most of his products are, by nature, custom-made. “For kitchen and bathroom countertops, we have to take measurements and mold a template. The base material can be tinted in a variety of colors to match any decor, although we find that natural tones complementing the conch shells are most popular. If necessary, we’ll come into your home and install the countertops too. The whole process takes three weeks to a month’s time.”

Customers are an equal mix of locals and vacation homeowners, with custom pieces regularly shipped out of the country. (Learning to pack a cumbersome countertop for overseas delivery was one of his early challenges, Phil recalls. His first special-order piece was broken in transit!)

Future plans for Thompson’s Conch include expanding the market and coming up with a catchy product name. (Any ideas out there? “Conchite” comes to my mind.) Through W.I.I.F., the conch shell furniture will be exhibited at a popular design trade convention in North Carolina later this year. And in five or ten years, Phil says, “I want to see my creations in a five star hotel in Timbuktu or Katmandu . . . and when someone asks where they came from, I’ll be proud to say they were made with Turks & Caicos Islands conch shells.”

In fact, Phil is already thinking about procuring enough shells to meet demand. “Between the fishermen and conch farm, I believe the supply is there. It makes me feel good to know that I’ve taken a wasted product and am helping others appreciate its natural beauty.”

For more information on Thompson’s Conch, contact Phil Thompson at tel/fax 649 946 8172 or cell 649 242 6770. Samples of conch shell furniture are found at West Indies International Furniture (W.I.I.F.) at The Saltmills, Providenciales, tel 649 941 4662; email Franckyb@wiif.com; web  www.wiif.com.

Dispute Resolution Without Tears

By Keith Pickavance, Pickavance Consulting

The construction industry is a fertile breeding ground for disputes. They cannot be avoided entirely and it would be foolish to suggest that they could. Amongst other things, there may be design faults or defective work or materials; the cost of variations may cause dismay; money can be wrongfully withheld and claims may be made for loss and expense for delay and prolongation or extensions of time to defend against liquidated damages for late completion.

On the other hand, the high cost of energy-sapping defended litigation can often be avoided by sensibly planning your dispute resolution procedures before contract as well as by the proactive management of the process of resolution once a dispute has arisen.

Mediation, conciliation, expert determination, adjudication, arbitration, and, of course litigation, are all possibilities to be considered. Two of these: mediation and conciliation, are often referred to as “ADR,” an acronym that means “alternative dispute resolution.” That in itself does not mean much without recognising to what it is an alternative. The essential difference between orthodox dispute resolution and ADR is that in ADR, the parties make their own settlement agreement, which is only binding so long as they want it to be. In orthodox dispute resolution, the decision is made for them by a third party and it is final and binding upon them. There is a grey area in all this and that is in expert determination and adjudication in which the decision can be final and binding, or it can be final and binding unless disputed in another forum, or it can be non-binding depending upon how (and under what law) it is structured.

Apart from reference to the courts by litigation (which in every common law country is a unilateral act, open to anyone who thinks they have had a right infringed), all the other methods of dispute resolution require an agreement. Naturally, it is easier to agree to a method of resolving a dispute before it has arisen rather than after. However, irrespective of whether there is an agreement in place, it is always open to either party to suggest an alternative means of dispute resolution that will save both parties time, cost and frustration, and to enter into an agreement for that at any time.

Non-binding
In non-binding processes, the dispute resolver helps the parties to agree their differences. These are entirely private processes, conducted without prejudice to the rights of either party, and there is nothing stopping either party from shifting its ground during the process. (Indeed, if it is to be successful, it is essential that they do.)
If they do not succeed in reaching a settlement there is nothing to prevent either party from dealing with the same dispute through another forum at a later date and nothing that has been discussed in the ADR process may be used in evidence elsewhere.

The dispute resolver will agree with both parties a procedure; he will read the parties’ respective position statements and any documents provided in support. He will consult with the parties privately, and with both together. Although essentially a non-binding process, it is always open to both parties to agree that the final settlement should be binding. The parties agree to share the costs of the dispute resolver and to pay their own. This is an excellent method of dealing with disputes, because it encourages the parties to talk to each other. If successful, it helps to preserve working relationships and even if unsuccessful, it helps the parties to focus on the real matters in which they are in dispute. In many contracts, ADR is required at some stage and in England, court-ordered ADR forms a part of the Civil Procedure Rules of the courts.

Mediation
Without express permission, the mediator will never disclose what has been said to him by either party to the other. A mediator does not have to have a detailed understanding of the facts or the law of the matters in dispute but it often helps. He will not advise the parties of their rights, nor generally will he advise the parties of the strength of their case. He will help each to see the weaknesses of their own and the strengths of their opponent’s position. In doing so, he will draw them closer together with a view to executing an agreement to settle their differences.
In general, mediation can be completed in two to three days. In very large cases with many issues it might take a week or more but that is unusual.

Conciliation
Conciliation as a similar process to mediation but the conciliator takes a more active role in the settlement of the dispute than does the mediator. A conciliator necessarily has to have a detailed understanding of the facts and law of the matters in dispute. The conciliator will express an opinion on the relative merits of the parties’ respective cases. He will try to persuade them of his views and, in doing so, will attempt to guide the parties into an agreement compatible with the parties’ rights under the contract.

Conciliation can be expected to be a little shorter than mediation simply because the conciliator is able to focus the parties’ attention on the issues and drive the process in a way that is unavailable to a mediator. In general, conciliation can be completed in one or two days. As with mediation, in very large cases with many issues it might take a week or more but again, that is unusual.

Non-binding or final and binding
Unlike ADR in which the parties make their own decision, the essence of these decision-making processes is that a third-party is introduced to make the decision for them. Because the process is consensual, it is always a private process. However, depending upon the rules of engagement agreed between the parties, the information that becomes available may not be privileged and the decision made may not be binding on the parties, leaving them free to revisit the dispute in another forum. The parties are free to agree who should pay the dispute resolver’s costs and how the parties’ costs should be dealt with, although it is usual for each side to pay their own costs.

Expert determination
Expert determination is quite different from any other method of dispute resolution. In this forum, the expert is appointed for his knowledge and understanding of the particular issues in dispute in the field in which he is an acknowledged expert. The expert will agree with both parties a procedure; he will read the parties’ respective position statements and any documents provided in support. There is usually no provision for the parties to change their position or amend their case during the process. He will consult with the parties privately, and may consult with both together, but he is under no obligation to do so unless it is made a term of his appointment.

The expert is given the role of investigator. He is required to find the facts and law in relation to the issues in dispute, to make his own inquiries, tests and calculations and to form his own opinion and decide upon the merits of the parties’ positions. Depending upon the issues, expert determination can involve much research and a hearing and can take anywhere from a week to several months.

Adjudication
In England and Wales and in several Commonwealth countries, adjudication has recently been given statutory authority. Under the law of those countries that adopt this process, it is generally the rule that either party to a specified type of construction contract has the right at any time to submit any dispute or difference to the adjudication of a third party. However, even where the statutory right is limited to particular types of contract, there is nothing stopping the parties from agreeing by contract to follow the same process in regard to contracts which are outside the Act and that is common.

Adjudicators are often appointed for their knowledge and experience of the type of matters in dispute — although it is not essential. Although the idea of adjudication is that there should be a decision, in the event that the parties do not like the result there is nothing to prevent them from running the case again in another forum; the rule of res judicata does not apply to adjudication. The adjudicator will agree with both parties a procedure; he will read the parties’ respective referrals and any documents provided in support. He may also require a hearing and will often conduct conference calls with the parties.

The adjudicator’s decision is binding until either party decides to refer the same dispute to arbitration or litigation, in which case the decision is binding until an Award or Judgment is handed down. When the legislation was first enacted in England some six years ago, the adjudicator was empowered to make his own inquiries of the facts and law. It was thought that he might act pretty much like an architect or engineer under a construction contract and that few parties would take the adjudicator’s decision as final and binding, so it was not initially thought necessary for the adjudicator to act within the rules of natural justice.

Six years on and several hundred enforcement cases later, it is now clear that parties who have been unhappy with the outcome have sought to overturn the decision on the basis of the adjudicator’s misconduct rather than have the case re-run in arbitration or litigation. As a result, the courts have imposed upon adjudicators the obligation to act within the rules of natural justice. They must hear both sides. The parties must have an equal opportunity to make their own case and to respond to the case against them, although they may not alter or amend their submissions.

This is a tall order in the limited time available to make the decision. The adjudicator must be impartial but does not have to be independent. He may only inquire into the facts and the law of the cases that are put to his decision. He may not go outside the parameters of the parties’ submissions to make good any deficiencies.

Unless the referring party agrees to extend the period for the decision by up to 14 days, or both parties agree to extend the period, the dispute resolution process must be conducted and the decision given within 28 days of referral. The adjudicator has no power to order discovery or to take evidence on oath unless the parties give it to him by agreement and if either party requests it, he must give reasons for his decision . . . and it all seems to work very satisfactorily.

Final and binding
In the sense that in the following tribunals, the facts once found cannot be re-opened by any court, the matters are res judicata. Appeal on a point of law is always available from a domestic arbitral tribunal to the court and from a lower court to a higher court. However, statute has tended to limit the right of appeal from an arbitrator’s award in other than a point of law of public importance in order to give the parties a greater sense of finality.

Arbitration
An arbitration agreement is written into all standard forms of a building and civil engineering contract. It is a private process and nobody is permitted to know of the matters in dispute or the decision unless the parties agree otherwise. The arbitrator’s decision is final and binding and can be enforced in many countries of the world by virtue of the New York Convention.

Arbitrators, like judges, must be independent and impartial. They must scrupulously follow the law of the contract and the rules of natural justice to provide a speedy and efficient decision on all the issues submitted to jurisdiction. The arbitrator may not go outside that limitation to decide things that were not part of the reference.
Subject to the arbitration agreement, the parties may adopt specific procedural rules which dictate the powers of the arbitrator or the procedure to be followed. Otherwise, the powers of the arbitrator are set out by statutory instrument under the Arbitration Ordinance 1974. In domestic disputes it is normal for the reference to be to a single arbitrator, but in international disputes it is more common for each party to appoint their own arbitrator and for the arbitrators to appoint a chairman or umpire, forming a three-man tribunal.

Arbitration can be very time consuming and expensive or it can be quick and cheap depending upon the parties and the case management skills of the arbitrator. There is usually nothing to stop a party from amending its case subject to paying the costs of the other side thrown away.

Generally, the arbitrator has the powers of a high court judge in regard to the taking of evidence on oath, subpoenas for evidence, discovery and so on. He can order a party to pay the costs of interlocutory matters and can determine who should pay his fees and whether the losing party should pay the winning party’s costs, in whole or in part, with or without interest and on what basis. The arbitrator must give reasons for his decision if either party requests it.

Litigation
Litigation is the dispute resolution process run by the civil courts of the state. It is free to every individual who has a grievance to resolve. Judges tend not to be technical people although in some courts they are specifically selected for their technical ability (e.g. the English Technology and Construction Court). On the other hand, judges often have the power to appoint technical assessors or experts to assist them and will almost always do so if the parties request it.

Notwithstanding that the court and the judge are provided by the state, litigation is often a very expensive process. This is often simply because of the complicated rules of procedure, which a reluctant but wily litigant can often exploit to put off the hearing of the case for years, including amending its case from time to time. There are also restrictions on who can appear in the courts on behalf of a litigant. In large cases the costs can run to many thousands of dollars per day during a hearing, which may take many months or even years before the dispute reaches that stage.

Litigation is a public process (justice must be seen to be done) and the public is encouraged to sit in on the proceedings to hear of the matters in dispute. Judges must give reasons for their decisions and important decisions are published and recorded in law reports.

Keith Pickavance LLB., Dip. Arch., Dip. I.C. Arb., R.I.B.A., F.A.E., F.C.I.O.B is an architect with a legal background, who specialises in the resolution of construction disputes as arbitrator, adjudicator, mediator and conciliator. He has also been appointed as expert in over 400 disputes internationally and has served as a court-appointed expert.

For further information see www.pickavance.net, email keith@pickavance.co.uk or phone +44 (0) 20 7089 7020. For local enquires, contact Rolf Rothermel or Wendy Been at Rothermel Been Smith, tel 649 946 4551, email rothermel@tciway.tc.