Need to promote mediation services
Nationalist MP Mario de Marco said yesterday that an important role of the Malta Mediation Centre should be to promote mediation, and it should have a budget for promotional activities.
He was speaking in parliament during the debate on a bill for the setting up of the mediation centre.
Mediation, Dr de Marco said, was an important element in the context of alternative dispute resolution.
The concept of alternative dispute resolution had taken root in many countries since it was an informal method for the resolution of disputes instead of normal, rigid and sometimes traumatic court proceedings.
Mediation, which he viewed as complimentary to court proceedings, had three main advantages. Firstly, there were no winners and losers and both sides worked towards a solution acceptable to all. This, therefore, was also different from arbitration, where a case would go against one of the parties.
Secondly, mediation was especially important in commercial cases. Since there were no winners or losers, there was no adversarial concept.
Thirdly, successful mediation was far cheaper, and often faster, than court proceedings.
With access to justice being a fundamental right, there was no doubt that the provision of mediation services, therefore, would make this access easier.
The Nationalist MP observed that the Vienna EU Council had underlined the need for mediation in cross border disputes, while the Lisbon Council had invited the European Commission to promote mediation in issues involving e-commerce.
The United Nations Commission on International Trade Law had adopted a model law on conciliation in commercial disputes, which included mediation.
The EU had adopted a green paper on mediation.
There was no fixed model of mediation services and various countries, notably Denmark, Italy, Austria and Portugal had experimented with different ways of mediation.
Some countries offered the possibility of having cases referred to judges for conciliation or encouraged judges to intervene and help the parties reach solutions.
Some countries had adopted mediation for particular sectors. In France, for example, a National Consultative Council on Family Mediation was formed in 2001.
The code of organisation in some countries and regions, such as in Germany, allowed the courts, in certain circumstances, to refer cases for mediation. The courts in England and Wales could suspend proceedings while parties were ordered to take their case for mediation.
In Belgium, cases involving the labour laws and agricultural leases had first to be discussed before a mediator before ending up before the courts.
Some members of the opposition, Dr de Marco noted, had argued in favour of mediation but felt the setting up of a mediation centre was not required, more so as not many people sought such services.
But if one did not have a mediation centre, who would be responsible for the promotion of mediation services? Who would assume the role of regulator, ensuring that mediators were of the required competence?
It was good that the mediation and arbitration centres would be housed in the same building, as both were instruments of alternative dispute resolution.
Turning to particular aspects of the bill, Dr de Marco noted that mediation proceedings may be resorted to voluntarily; following a decree or order by an "adjudicatory body "; or by law.
Clearly, the term "adjudicatory body" needed to be defined.
Dr de Marco said that as far as possible, mediation should be voluntary and not imposed. There could be instances where it was wise to refer a case for mediation, but that should be the exception, since there was a greater chance of success when mediation was voluntary. And one had to be careful that recourse to mediation was not used as a method to prolong cases before a court.
Dr de Marco also argued that legal aid should be available in mediation services, more so when mediation was imposed. An EU draft directive on legal aid had indeed recommended that legal aid should also be available for instruments of alternative dispute resolution, which included mediation.
He felt that when an adjudicatory body referred a case for mediation and established an adjudication period for this purpose, the parties should be able to go back before the court and resume proceedings before that time expired when the adjudication was concluded, or did not succeed.
Furthermore, would recourse to mediation be considered as interrupting the prescription period, where it existed?
Dr de Marco noted that the Malta Mediation Centre would draw up a list of mediators to assist in domestic and international mediation. The mediators, he said, should be of such character as to enjoy the respect of both parties and be able to exert authority on them. And since mediation had a lot to do with consensus, the parties should be free to agree on the appointment of a mediator who was not on the centre's list.
The bill, rightly, included provisions on confidentiality. No mention, however, was made of the liability of mediators such as when the confidentiality clause was violated. Would this confidentiality fall within the Professional Secrecy Act?
It was important, Dr de Marco said, that the Malta Mediation Centre promoted the concept of mediation, and had a budget for this purpose.
Concluding, he said that he was also in favour of the creation of a European Centre for Mediation, not least because recourse for mediation was far lower in Europe than in the United States.