My friend Paul Pullicino's contribution warrants some comment.
There are many reasons prompting the government to promote alternative methods of dispute resolution. The main reason, perhaps, is the current state of overload of our judicial system resulting in lawsuits in our civil courts which are taking too long to be decided. This is leaving all parties in the legal process dissatisfied.
Unlike some members of the bar and the opposition, the government is not prepared to be complacent when faced with the current state of affairs: It is systematically attacking problems and creating long-lasting solutions. The promotion of mediation and other alternative dispute resolution mechanisms are examples.
Mediation is being introduced as an instrument which can bring manifest advantages to the parties involved in the process. The mediation process has numerous advantages, namely, it is less time consuming, it costs less, it is held in private with no negative publicity or useless washing of dirty linen, the parties participate in an agreement which is not imposed upon them but which is acceptable to them and so forth. In short, it is an exercise which leads to a win-win situation to all.
There is wide opinion that mediation is a useful method of dispute resolution. Contrary to what Dr Pullicino seems to think, the promotion and formal support of mediation by the government has been carefully thought out. The current Bill was drafted in the light of the particular characteristics of the role players in the Maltese context, that is, the propensity to litigate and the animosity of the parties to a dispute, their relationship with their lawyers and the procedures followed in our judicial process.
We have come to the conclusion, after broad consultation, that leaving mediation in its current informal status does not help to ease the difficulties our citizens are presently facing in the law courts. Mediation should be a process open to all disputes which can benefit from such a process and not only to new suits or to a restricted group of them. Furthermore, mandating mediation in some disputes like the Family Court and giving the possibility to the court to mandate mediation in certain other disputes can prove to be of benefit to the parties.
Dr Pullicino is, also, incorrect with regard to his conclusions on the role of mediation in the Family Court. Had he been present at the opening of the Forensic Year he would have heard from the Chief Justice's speech that his personal experience in the Family Court was not contrary to mediation where the parties file consensual agreements. Unfortunately, we must accept that the courts often have to contend with ill-prepared consensual agreements, submitted by some members of the notarial college on summary instruction from legal advisers who do not bother to further scrutinise their drafts and agreements prepared by lawyers who, single-handedly, attempt the impossible, that is, act in both the husband and wife's interests when such interests are conflicting. As past experience has shown, these have negative effects on the parties and society. We do have citizens who have taken the brunt of many a fast consensual agreement and are suffering because of the negligence and irresponsibility of certain members of the legal profession. So, yes, unfortunately, there is still the need for mediation to be mandatory even in these instances.
Dr Pullicino states that mediation should only be a privilege granted in pre-trial stage. I beg to differ. We have carefully considered this but decided against it. There is no benefit from excluding "old" disputants from the process. If the parties feel it is a tool they can use to settle their dispute why should we a priori say no?
Mediation is available to both parties. Nevertheless, in instances especially when the lawsuit is primarily one of pique and hard-headedness, it is reasonable that it is the court which invites the parties to consider the mediation process within which to settle their dispute. Usually these lawsuits are those which lawyers in confidence admit that they can be easily settled. Yet, if they were to propose a settlement to their clients, the latter would suspect they are not acting on their behalf but against their interests because they are suggesting the possibility of a settlement.
Our belief, based on the experience of judges and lawyers, is that we should grant judges the possibility to look objectively at the case and allow them to send parties for a pre-established period of meditation in the hope that they will settle their suit. Something which the parties can do or refrain from doing. There should be, however, an incentive to consider this seriously and there is the possibility to inflict double the legal expenses in such lawsuits, especially where parties can easily arrive at a settlement but do not do so capriciously.
One further point. Let it be clear that although one party can unilaterally request that his case is sent for mediation, it does not mean that judges are insensitive to abuse of the system. They take an independent opinion of the particular circumstances and the other party's view.
Mediation in commercial and civil cases is a voluntary tool at parties' disposal. The aim is to enable them to resolve pending disputes and there is no wish to complicate matters or this to serve as a new ruse for a debtor.
Mediation should not be limited to any particular tribunal or court. If the parties agree, be it at a complicated arbitration or at a small claims tribunal suit, they should be allowed to refer the matter always at their discretion to this process. I do not share the opinion that since all civil and commercial lawsuits can be referred to mediation there should be a mandatory preliminary process with a pre-established time-limit.
The Bill gives participants in the process due liberty. The participants, as well as the court, have the right to establish a timeframe for its beginning and conclusion. Mediation is not intended to be an instrument to delay the already slow-moving lawsuits but as a means to obtain a settlement which is earlier and faster than a court process.
One should not continue to take an amateur and informal approach to mediation if one intends it to be effective. Mediation today is a profession which is not open just for lawyers but to all those who have the talent to mediate. Without a centre which can regulate, control the standards and ethical behaviour of this class of professionals we would be doing a disservice to society. It is true that lawyers have at times attempted to act as mediators, as I have done in practice many times, as I have had the occasion to state in Parliament in my opening speech. However, we must admit that few of us are trained in this area. Bill 31 does not exclude lawyers from this activity, on the contrary, it encourages them to undertake the necessary studies and training to enable them to exercise better this skill while, in parallel, it will not exclude any other competent professional.
I am grateful to veteran lawyers like Dr Pullicino for their enthusiasm for meditations on the use of mediation as a useful alternative method of dispute resolution. At the end of the day it will depend on the lawyers' advice and trust in the process for citizens to actually reap the fruits of the government's meditation and positive action. I do not expect Rome to be built in a day; this process will naturally take its time but in the meantime, Joe Public, on behalf of whom we govern, will be better served.
Dr Mifsud Bonnici is Parliamentary Secretary at the Ministry for Justice and Home Affairs.