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This is the time for legislative sequels. And like their cinematic equivalents, these sequels are crude, uninspired and embarrassingly unoriginal. Take the Mediation Bill currently waiting in the parliamentary pipeline. Trailing in the wake of the infamous Bill 27 which brought us that contradiction in terms “mandatory arbitration,” the Mediation Bill has the objective of regulating the domestic and international sector and the qualifications and services provided by mediators. It is also meant to provide new tools for the legal sector to be able to settle existing and future disputes. In reality it is nothing but the postponed reaction to Alfred Sant’s refusal to impeach Judge Anton Depasquale after his 8 or 9 year crisis of conscience during which the judge did not report for work.
The repercussions of Sant’s mulishness in that regard are still with us today. Lawyers, legislators and even members of the public tiptoe around the truth, afraid to topple the carefully balanced applecart of good relations with the judiciary.
Like the onlookers in the fairytale, nobody dares speak out and say that the Emperor has no clothes. In the present scenario, nobody dares to mutter out the complaint that a minority of the members of the judiciary are not pulling their weight. And in fact it is a minority. The statistics which hold our politicians in thrall, show that there are some judges that have no backlog to speak off. Others dispense with cases speedily and well (then again criticised for being too rough and ready). Others go out of their way to read and decide upon written pleadings and applications. I have seen a judge toiling away in what amounts to a glorified shower cubicle in the sweltering heat of summer while the staff in the airier room next door refused to serve lawyers and members of the public because they had no air conditioning. Complaints were dismissed, “Go tell the Court Registrar” unwitting members of the public were told. Many judges also give tardy lawyers appearing before them some leeway, so as not to prejudice their clients’ case
These scenes are familiar to those MPs who graced the court halls before they graced the House. However the fact remains that not all judges are “delivering” and the legislature is at a loss. The appointment of more judges hasn’t worked. Cordial meetings and polite pow-wows seem to have been so much waste of cakes and tea down the drain.
Naming and shaming is a non-starter here where a blush doesn’t even make it to the Adam’s apple of the laziest rogue with the most dismal record. And Alfred Sant’s pig-headed pique-fuelled inaction has removed even that ultimate threat of impeachment from the legislator’s arsenal. The man who shouts up and down agitating for “xoghol, xoghol, xoghol” while defending the action of someone who got paid to do none of it for some eight years, has put the state system of checks and balances permanently out of kilter.
And so we have the Mediation Bill which sets up the Mediation Centre and provides for parties to agree to mediation and for adjudicatory bodies and judges to refer disputes pending before them to mediation. It is intended to save warring parties time and money and to shield them from the unwelcome publicity of court cases. It is also meant to engender a culture of cordiality where litigants are helped to reach an equitable solution to their dispute. This is the best case scenario which I hope will become a reality. It is perhaps the cynic or the realist in me which foresees another state of affairs.
Mediation was made mandatory in separation cases and family disputes last year. It was meant to be a time-out for angry spouses. It has worked out to be another bottleneck for persons wanting a speedy settlement of their familiar disputes. Anybody filing for personal separation now (in October) gets a mediator’s appointment in January. During the intervening months, the spouses are not reconciling but slugging away in an escalating War of the Roses. Another bottleneck has been created where previously there was none. Identical problems will crop up when mediations are introduced to all spheres of law. The Bill does not provide for time limits within which mediation is to take place, leaving it at the discretion of the bodies referring disputes to mediation. Nightmare visions of protracted mediation processes spring to mind.
The lengthiness of court cases has been held up as a ‘Keep Away’ sign, and the supposedly quicker resolution of disputes through mediation has been dangled invitingly to prospective litigants. It might be facile to point out that the parties to a dispute can prolong the matter or not. Should they want to reach an amicable settlement, they can do so in any forum, including court. Yet another advantage being touted by the pilot of the Bill is the confidential and private nature of mediation proceedings. Of course, the other side of this coin is the fact that the closed atmosphere of the mediation process is not open to scrutiny or censure, making it open season for unethical individual mediators to conduct procedures in a careless manner with scant regard for the legal niceties which might seem so pedantic, but which are essential for the just settlement of disputes.
The setting up of the Mediation Centre in the ghost-town that is presently the Arbitration Centre will involve the creation of yet another authority or quango and yet more support staff. This notwithstanding it is doubtful how much better served the public will be. Even if the parties settle and reach an agreement, they will then still have to resort to the sad joke that passes as enforcement machinery. Enforcing a judgement or agreement still means going to court. It is a long, hard and expensive slog with minimal chances of full recovery. The enforcement process has been crying out for reform for ages, yet politicians haven’t exactly been breaking down doors in their zeal to tackle this problem. One wonders why. While statistics about the number of pending lawsuits have become a monotonous mantra, we rarely hear of the number of people desperately trying to get their debtors’ assets sold by judicial auction and paying through the nose for it. We don’t know about the success (or failure rate) of enforcement proceedings. And yet this is what really matters to the man in the street. What he wants is to finally get what is due to him. It looks like he’s in for a long, long wait.
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