The bill setting up the Malta Mediation Centre was just the appetiser ahead of deep reform in the justice system, Justice and Home Affairs Minister Tonio Borg has told parliament.

The government, he said, was determined to do what it could, within its areas of responsibility, to reduce the number of pending cases before the courts.

This bill, and the amendments to the Arbitration Centre Act some time ago, were part of a process aimed at reducing the need for people to take their disputes to court, and to ensure that cases were decided faster. Although the court cases backlog had dropped by 18 per cent in five years, that was enough and one could not tolerate a backlog of thousands of cases in such a small country.

Reform was needed to do away with anomalies and anachronisms in the legal system, as other European countries had done.

One could consider, for example, whether, in civil cases, a person should continue to have an automatic right to appeal, without some sort of mechanism to assess whether the appeal was genuine or frivolous and meant to further delay proceedings.

One could also consider a more direct system for the compilation of evidence instead of the current one where evidence went to and fro between the courts and the Attorney General.

One also had to look into changes to the regulations on criminal procedure regarding corroboration of evidence. Should one have a system, used abroad, where corroboration of evidence was not to remain mandatory in some cases, but was left up to the judge?

Court procedure, Dr Borg stressed, was very important. Having a fair hearing was a basic right. But that should not be used as an excuse that could lead to injustices on society. One could not concentrate on having a fair hearing while ignoring the rights of the victims of crime and the rights of society in general.

The current situation was such that one had, for example, to pay court costs when he took a neighbour to court, even before winning the case, while the state paid all the court costs when a drug trafficker was arraigned and found guilty. Should such guilty persons be made to pay the court costs?

Should the victims of crime have greater rights in court proceedings? The government did not intend to destroy the rights of the accused, but he felt a lot remained to be done for the victims of crime.

There was no doubt that reform would raise some protests, but there was no denying the need for reform. All initiatives would be taken to reduce the cases backlog and it would not be the government's fault if the backlog was not reduced, Dr Borg said.

When he referred to aspects of the bill, the minister said the mediation centre was an alternative means of dispute resolution aimed at avoiding the need for people to take their cases to court.

The Maltese were clearly not used to settling their disputes through mediation. One could see that most of the cases before the courts were relatively minor, involving division of inheritance, invasion of property or disputes stemming from pique.

Mediation, the minister stressed, would be voluntary. It was only in the Family Court that mediation was mandatory.

However there could be circumstances where, during a court case, a judge felt that a case could be settled through mediation either because disagreement was not major, or because a case stemmed from pique. In such cases, the court could order the parties to try to reach agreement through mediation. In practice, this had happened many times, with judges urging the parties to seek out of court settlement.

The authority being given to the courts to order mediation had to be exercised on the basis of common sense. No judge would order the parties to seek mediation when no possibility of agreement existed, or when they did not want mediation. But it was wise to give judges the discretion to suspend a case to give mediation a chance when the possibility of agreement was real. It was unlikely that judges would abuse of this power because when mediation failed, cases would still remain before them.

The period of prescription during such mediation would be suspended because a court case would have been started, but suspended.

The bill was later given a second reading.

Earlier in the debate, Labour MP Joe Brincat warned that mediation could be used as a tactic to delay proceedings in court.

Mediation, he said, was not something new, but it needed to be promoted more. Nonetheless, he felt the setting up of the Malta Mediation Centre was unnecessary when a similar result could have been achieved by improving existing structures at the Arbitration Centre. Furthermore, it was no secret that the Arbitration Centre was not the success it was predicted to be. Mediation did not need a mediation centre for it to exist. A number of professionals although not qualified to be so, already acted as mediators without the proposed structure. Creating another structure would entail an unnecessary expenditure of public money.

Dr Brincat insisted that it was not fair that court costs could be raised when mediation ordered by the courts failed. How fair would it be for someone to be penalised simply for being strong in his position? It could very well be the case that the person who wanted to speed up proceedings was the guilty party. And once the proposed law stated that mediation meetings were confidential, how could the court decide which party had held up proceedings and agreement, and why?

What the government needed to do was to stop what was happening in the Family Court, where even parties who reached an amicable settlement were referred to mediation, and thus faced greater costs.

Whilst he recognised the good work done by certain mediators, mediation should not be mandatory in all cases.

Judicial assistants should assist judges in discerning the points of contention rather than passing on whole files to mediators thus ending up with a stagnation of proceedings. It was very frustrating for judges, and similarly for mediators, to inherit endless piles of files without someone identifying the crucial points in question.

Jason Azzopardi (PN) said the mediation process was simple, efficient and cost effective. On the other hand cases resolved in court took so long that in many cases, even when a case was won, one wondered if it had really been worth it.

Mediation meant less friction among the parties and since there were no losers and winners, there would not be the humiliation of losing a case.

While the mediation system in the Family Court could be improved, he knew of at least two cases where compulsory mediation had saved marriages. It made such legislation worth it.

He observed that alternative dispute resolution mechanisms in the US were the norm in social and marriage conflicts. There should be a person trained in alternative dispute mechanisms in every government department because it would avoid a lot of conflicts between the citizens and departments.

Dr Azzopardi said the bill should define what was meant by "adjudicating bodies" which could order mediation. Would there be mediation in cases involving the planning authority?

A time limit for such compulsory mediation should be established lest such mediation was used to delay court proceedings. There should be incentives for those who showed a willingness to opt for mediation.

Labour MP Justyne Caruana said a new structure was being set up without proper preparation. It would have been more opportune to train mediators first. Although it was being claimed by the government that mediation would speed up court proceedings, in certain cases the reverse would be the case, as mediation could be used to delay proceedings and judgment.

Dr Caruana asked how the new Mediation Centre would function in Gozo when only one centre in Malta was mentioned in the bill.

She also questioned the voluntary nature of mediation. How could mediation be voluntary when this could be ordered by a court? Furthermore, how could one talk of voluntary mediation when one was penalised for not coming to an agreement?

What safeguards were there to avoid disclosure of information given during mediation? Would the registrars also be bound by confidentiality and by a code of ethics especially since they would have access to the files like the mediator?

Regarding prescription, Dr Caruana said the bill should specified how this would be affected by mediation.

Marie Louise Coleiro (MLP) highlighted and supported points of an article by Paul Pullicino in The Times last Monday entitled Meditation on the Mediation Bill, saying it showed how this bill fell far short of expectations.

While mediation was something positive, it, clearly, should not be imposed. The system in place at the Family Court, where mediation was compulsory, had created problems and raised costs.

Resorting to mediation in the Mediation Costs would also mean added costs for the parties in dispute. Would everyone afford these expenses? What would the tariffs be?

The bill did not limit the time within which mediation had to be concluded. This could mean that the mediation could take years and years.

The bill, Ms Coleiro said, was vague on the nature of mediation that could take place in the Mediation Centre. The bill only mentioned domestic and international mediation.

Since the Employment and Industrial Relations Act already provided for the voluntary settlement of disputes which law would prevail once the mediation law came into force?

As regards to international mediation, what did it actually mean? Would this mean that the local mediation centre would be marketed internationally?

Nationalist MP Michael Asciak underlined the need for a campaign to encourage people to use mediation.

Lawyers, he said, might look at this bill as something that would reduce their work load. But the lawyer would not be excluded from the mediation process because it would be beneficial for the party involved in the case to bring along his lawyer.

Dr Asciak also underlined the need for properly trained mediators.

Mediators should never be put in a situation, as often happened in the family courts, where they had to appear in court to testify against one or the other party involved. This situation had in fact led to some mediators refusing to actually mediate in family cases. A mediator should not be forced to reveal the information heard during the mediation process.

Dr Asciak concluded by saying that there should be written confirmation of what was agreed between the parties through mediation and this agreement should be registered in the law courts.

Nationalist MP Fredrick Azzopardi said the bill sought to reduce the cases backlog at the courts by providing alternative means of dispute resolution. The parties would be able to come to a settlement of disputes rather than depend on a court judgment. This would thus reduce friction.

Nationalist MP Franco Galea said mediation should be useful to small enterprises since it would avoid lengthy court proceedings. It would also avoid the tension one usually associated with court proceedings. The government should invest in an information campaign about the Mediation Centre.

Joe Cassar (PN) said mediation would be less costly than going to court, and successful outcome would also save time. People going for mediation would also avoid the trauma many often suffered when they went to court.

Mediation was absolutely necessary in the Family Court, if not for the sake of the couple, for the sake of children. That was one of the main reasons why in the family court it was necessary to have mandatory mediation.