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The Legal Notice enforcing regulations on Family Mediation in Malta’s Civil Courts (Family Section) came into force on 16 December 2003. The implemented changes launched on the Maltese scene as a viable alternative to litigation were a subject of controversy despite the fact that there exists broad consensus between political parties about the value of mediation. It was perceived that the introduction of mediation was rushed and initiated without adequate resources and information, sufficient planning and consultation with key constituencies.
Despite these perceived shortcomings, as more cases reach settlement through the court-annexed system, the benefits of mediation are becoming increasingly more recognized among users of the system.
General Background
The scope of family mediation is fundamentally intended to address the effective resolution of family disputes by taking into consideration needs and interests at both the judicial and family level. Mediation is not an attempt to force parties to reconcile. Where parties fail to reconcile the mediator shall mediate between them in an effort to reach an agreement to enter into a deed of personal separation by mutual consent. Any party wishing to proceed to initiate a suit for personal separation against the other spouse shall first demand authority to proceed from the Civil Court (Family Section) by filing a letter addressed to the court registrar, stating the name and address of both parties and requesting the court to authorize him/her to proceed. Such letter may be signed and filed by the party personally or by an advocate or legal procurator on behalf of such party. (LN section 4.1)
The family mediation service is a specialized, confidential service enabling couples, who have decided to separate, to reach agreement on issues related to their separation. A joint approach to decision-making and a positive attitude towards establishing ongoing parenting arrangements are also key to mediation. The mediator may in camera hear the parties separately or together, in the presence of their lawyers or legal procurators. The mediator may also hear any minor children of the spouses, the children’s advocate, if any, and the parties’ respective advocates or legal procurators. (LN section 4.6)
The service benefits married couples, single parents, unmarried couples and couples with a prior separation contract. The service is offered free of charge and Government has appointed a panel of court-annexed mediators to provide expert support to couples who wish to negotiate their own terms of agreement in any aspect of family disputes. Where the parties select a mediator by mutual consent outside the court-appointed list, the fees due to such mediator shall be charged to the parties; otherwise, the fees due to mediators shall be paid by the Court. (LN section 3.2)
Family disputes range from contentious complex disputes between married couples seeking to reach an out-of-court separation settlement on all aspects of the separation, (e.g. division of the matrimonial home, child custody, access and maintenance) to disputes between unmarried and/or previously separated couples over specific issues, such as custody, visitation rights of children and/or child maintenance or maintenance between spouses. Moreover, in evaluating project feedback in the form of a questionnaire given to both parties at the end of successfully concluded mediations, it transpires that the family mediation process appears to have worked and has provided parties with a positive overall experience. Areas of development still under study include, promoting general use and consolidation of the mediation process, increasing awareness-raising of the benefits of family mediation, facilitating administrative procedures and developing professional codes for best practice.
Preliminary Results
The following is a summary report reflecting mediation results from the first sixty-five cases referred to one (the author) of the Family Court mediators.
Fifty-one cases of the total sixty-five [65] cases referred to in this study, dealt with mediation to proceed with personal separation. Fourteen dealt with modifications to an existing contract. Out of these fourteen cases, seven cases were filed by unmarried couples.
Of sixty-five cases assigned between the period ranging from January to April 2004, eight cases involved the review of an existing separation contract by the mediator. Two of these contracts required slight modification due to concerns raised by the parties in the course of the mediation. Fifteen [15] cases were resolved successfully in mediation. In ten cases, mediation did not result in settlement. (Three of these cases could not be initiated given the location of one of the parties outside Malta. Seven cases were terminated by the mediator when the mediator determined that further mediation would not be useful). In five cases, the parties reconciled, making further mediation unnecessary. One case was adjourned to a later date upon agreement of the parties. Twenty-six of the sixty-five cases are still pending and some require an extension over and above the two month period stipulated by law.
A variety of circumstances led to the ten unsuccessful mediations. In some cases, the parties were reluctant to mediate due to insecurity with the process. In other cases, one party or the other needed services apart from mediation (e.g. counseling) before mediation could be initiated.
Mediations spanned over an average of seven sessions, with each session lasting an average of two [2] hours. Appointments are generally given on a weekly basis and subject to parties’ availability. In sessions where the mediator determines the need for lawyers to be present at the mediation, the lawyers’ availability to attend is also taken into consideration. In this regard, an appointment is arranged jointly between the lawyers, mediator and the parties prior to the closing of the session. Initially lawyers represented parties in mediation right from the intake session (i.e. the first session) but as the process became more understood, the presence of parties without lawyers prevailed. In every mediation case, parties are strongly advised by the mediator to refer to their lawyers where legal advice is concerned and to provide their advocates with a copy of the concluded heads of agreement reached in mediation. In 98 per cent of the cases under study lawyers were noted to support the mediation process and to work effectively towards settlement with the collaboration of the mediator. Time constraints and tight agendas were major prevailing factors sometimes resulting in difficulties to schedule meetings for which all parties concerned could attend.
The use of the child advocate throughout the process of mediation was not predominant, and, as far as this study is concerned, was referred to once. In all of the remaining cases, issues concerning the interests of children were dealt with directly by the parents, the mediator and the parties’ lawyers. The need for the mediator to consult with other related professions was identified in three cases, e.g. with social workers and where such professional services had previously been engaged to safeguard and monitor children at risk.
Where cases settled, parties were asked to respond to a series of questions regarding the process. The following strengths and weaknesses of the mediation process were identified as a result of this post-mediation feedback:
• parties would use mediation again in the face of another dispute;
• parties liked the idea of an alternative solution to litigation;
• parties liked the concept that mediation provided a quicker solution than via a court judgment;
• parties found it positive that they could reach a solution themselves as opposed to having a decision imposed upon them by the court;
• parties found the mediator to be caring, emphatic and neutral;
• parties felt confident the mediator was competent and showed expertise in managing the dispute;
¸ parties felt they were given ample time to discuss their concerns and issues;
• parties were advised by their lawyers to participate in mediation;
• the mediation did not correspond with parties’ idea of what mediation would be like
• there was insufficient public information about the use of the mediation process and its benefits
• the mediation rooms and waiting rooms lacked privacy (rooms not sound-proof)
Despite the apparent success of court-annexed mediation, some concerns are still evident. The time frame of pending cases and inadequate resources are continuing issues for the process. Court personnel and mediators need to be available to address the increasing mediation caseload. Additionally, the use of child advocates is insubstantial, suggesting a need to further their appropriate use. Finally, educational materials, including educational information for consumers, legal advocates and the judiciary, are necessary to both inform and promote the appropriate use of mediation.
It’s too early to draw any final conclusions regarding the efficacy of mediation in the family courts. However, the initial results are promising.
Audrienne Spiteri Gonzi is an accredited mediator. The referenced results represent cases received by one court-annexed mediator (the author) for the period January to April 22nd 2004.
E-mail: mediator.familycourt@gov.mt
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