Of mediation and dragons

Under the new and courageous regulations on the Family Court, the mediator seems to have the function of attempting to reconcile the parties, assisting them to reach a settlement and, also, monitoring draft deeds of separation.

It is a pity that now that Malta has taken the plunge and set up the long-needed Family Court, there is ambiguity about concepts like mediation that in themselves many have finally gone so far as lauding.

That a professional talks to couples contemplating separation to help them assess their decisions, to offer further professional help and give them any information that could make life a bit easier is no blasphemy.

It is practised in England, Australia and elsewhere. The English Family Law Act 1996 provides for a period of reflection and consideration and a compulsory information meeting. True, most couples could be beyond the salvation of their marriage, yet even if it can lead to the salvation of one marriage, it could be worth having. Statistics from abroad show that between 10 per cent and 15 per cent of couples who are exposed to non-litigious methods for addressing not their reconciliation but their separation end up reconciling.

The argument that the preliminary work will harm victims of domestic violence holds no water because a true professional should know how to define and identify domestic violence and would never stand in the way of legal and physical protection of victims. He would probably facilitate such protection! Suffice it to say that in Australia, all the staff of the Family Court, including the judiciary, attend training in domestic violence issues at least once a year.

As good as this pre-trial work might be, it is not mediation and cannot be carried out by a mediator! Nor do I see it as the role of a judge because the function is not adjudication - clients would not open up in front of somebody who might be perceived to be judging them. Abroad, it is usually carried out by a social worker or a psychologist.

Mediation in this context is a process in which an impartial and specially trained professional assists those involved in family or relationship breakdown to communicate with one another and to reach an agreement on maintenance, finance, property and, above all, on the needs of their children.

The mediator does not hold any control and wherever the parties fail or are unable to arrive at an agreement, the decision-making lies in the hands of the judge.

One needs to emphasise that participants of mediation are informed in writing from the very start that they are encouraged to seek advice from their lawyers.

The lawyers' role is still very vital; what would be different is the forum that the lawyer operates in. However, in no country I know of, and I have been in contact with mediators from 13 countries, and participated in the Standards Committee of the European Forum, do lawyers participate physically in the process.

Mediation does indeed have limitations and could be harmful or ineffective in certain cases, notably cases of physical and psychological abuse, mental illness and drug or alcohol dependence.

In the states where it is compulsory, like California or Norway, it is still not imposed on the parties, if they are inappropriate candidates or if they fail to cooperate. The English Family Law Act 1996 requires divorcing couples applying for legal aid to attend a minimum of only one mediation session, meaning that misfits terminate the process in that one session.

Both agreements reached outside mediation and, to a lesser extent, those reached in mediation (where the mediator tries to balance power out) could give rise to manipulation of women by their husbands who hide their income and cheat them into settlements after years of abuse or harassment. I do not think the answer lies in subjecting separation agreements to the monitoring of a mediator. First of all, it is not the role of a mediator!

Secondly, if legal aid were more available and if Malta were not one of the few states in the world not to have domestic violence legislation, the problem could be more under control.

During 2001 and 2002, there was a plethora of articles and adverts in the media about training courses in mediation. Some had selection criteria of applicants, others had not.

Some were accredited by international bodies, others were not. Some had assessments, others did not. Wherever mediation is practised, even by experienced professional people, it is subject to supervision. The UK College of Family Mediators has a list of professional practice consultants. One of the functions of a supervisor is to see that the code of ethics is adhered to.

The European Forum specifies that recipients of family mediation training need to have professional qualifications in law or human science or else exceptionally, five years' practice in an organisation providing assistance to couples and families. Further, courses accredited by the Forum involve a practicum and assessments. Real mediation training is definitely not a matter of attending a given number of hours' training.

A very practical point is that all trainees in mediation have been trained to assist clients reach an agreement and not help them reconcile or monitor draft agreements. These are different skills altogether.

The level of competence or expertise that Malta chooses for its mediators impacts on the success this aspect of the Family Court will have. And a Family Court becomes a court for families when it manages to harness, along with a wealth of jurisprudence, the advancements in the human sciences of the last 100 years.

The new roles hammered out by the new regulations need to be redefined. The success stories from abroad all point to a good networking between practitioners of different disciplines, social workers, psychologists, mediators, lawyers and judges.

The test of it all is when clients go out of the court, having maybe to end a relationship or re-order their family, with a sense of care, dignity, peace and respect.