Too little to succeed
A step in the right direction is always commendable. The White Paper on mediation is to this effect laudable. Having said this, the document is anything but far reaching, revolutionary or ‘a comprehensive updating of Maltese mediation law’ as the document itself claims to be. Describing this reform as such is offensive to anyone who truly believes in the mediation process.
Let me start by declaring my interest in the mediation process. I am a qualified CEDR (the London-based Centre for Effective Dispute Resolution) mediator. I believe in the process, so much so that together with a group of other qualified mediators, ObjectiveHR, of which I am director, effectively provide mediation services.
Hence I write this piece because of my professional interest, because we are expected to comment on the White Paper, and, most importantly and above all, because of my firm belief that mediation is a cheaper, better and more expedient alternative to litigation.
If it is true that in the preparation of this so-called comprehensive updating of Maltese mediation law, “careful review of Malta’s experience in this field, together with an analysis of similar legislation among our European neighbours” has been studied, then the drafters of this document were anything but analytical of our limited experience and the vast experience of European neighbours, unless of course, they relied on jurisdictions where the mediation process is not their forte.
There are some very fundamental questions which have to be posed and answered. Do we or don’t we believe in the mediation process? Do we or don’t we want this process to be an integral part of our judicial system? Do we or don’t we really believe that mediation, as opposed to litigation, is a better process?
If the answers are in the negative, then the debate is closed and we should not speak of any reform. If on the other hand, the replies are in the affirmative, then there is no doubt that not enough has been done with this White Paper and not much inroads will be achieved in enhancing the mediation process in Malta.
It’s a question of believing in the process, and if we really do, as the introduction to the document seems to suggest, then there is evidently a lot more to do and little is being proposed.
As for the Maltese experience, to date, mediation is compulsory in family matters only. The paper rightly acknowledges that it was “generally successful”. On the other hand, the paper defines “the response in many other sectors was lukewarm”.
I fully concur with this assessment, but I would dare add that where and when mediation was resorted to, at times even informally with the help and involvement of lawyers too, many a time the results were positive and fruitful. We should acknowledge that the vast majority of litigation lawyers, before and throughout court procedures, mediate, at times without knowing, and certainly informally, but this state of fact should not go unnoticed.
As for the European neighbours’ experience, the writers of this Paper should state which experiences they have considered and studied. I opine that no other experience should be looked at but that of those jurisdictions where the mediation process has been a success. If we truly believe in the process, then there is no doubt that the only jurisdictions which should help us master our reforms should be those which have made a success of the mediation process, such as the UK.
To this effect, why, in addition to the already established Family Court, is the mediation process being introduced only in proceedings before the Rent Regulation Board?
Why not introduce mediation proceedings also in workplace-related issues and industrial disputes, particularly in view of the fact that collective agreements and employment agreements are increasingly introducing the mediation process? The Department for Industrial and Employment Relations (DIER) does invaluable work with conciliation proceedings, but will not the mediation process alleviate the DIER’s already heavy workload?
Successful reforms to facilitate debt-collecting procedures have been introduced over the past years (166A etc) – why not include the mediation process for those where contestations remain?
In personal injury claims, when very often it’s the quantum rather than the responsibility which is in dispute, why not introduce the mediation procedure?
The same applies to contractual disputes, commercial disputes, disputes between shareholders and/or directors of commercial companies?
Matters concerning succession and others concerning property division should also be referred to mediation; very often they concern members of the same family, who with some professional guidance, could come to amicable solutions.
The above are all but examples. However a proper mediation process will certainly help to lessen the burden on the law courts, afford more quality time for our judiciary to perform their role and in all probability, afford the citizen a less burdensome and more effective procedure to settle the dispute, where the same citizen is a party to the dispute, but above all, to the solution for that dispute.
The White Paper is void of any reference to judicial mediation. Why should a judge not be able to refer to mediation if s/he thinks that there is a possibility that a matter is resolved thus?
It is all a question of willpower and determination.
If the authorities truly believe in this process, then we need to pull up our socks and provide a truly comprehensive and forward-looking piece of legislation, a more comprehensive training environment for those who wish to professionally act as mediators, a more coherent and better equipped premises for the mediation process to take place and a framework which guarantees the person’s right to be assisted by the lawyer of his/her choice, and professional advocate fees which remain unaltered from the current Code of Organisation and Civil Procedure.
If we truly believe in this process, then there is one way forward. If a mediation process is to be effective and is to positively impact our judicial system and the confidence of the public in the legal system, then we should not go for piecemeal reforms, but for a truly radical shake-up and reform intended no more in providing pilot projects, but aimed at providing a strong set-up, a well-structured mediation process, which, in the long term, will provide a better dispute resolution process to our citizens at a lesser strain on public finances and private parties’ pockets alike.
Making the citizen participate in the outcome of his dispute can in the long run contribute towards the citizen attaining more trust in the judicial system. And we need it!
Ian Spiteri Bailey is a certified mediator.