Litigation and Dispute Resolution
"The objective of mediation is to assist spouses to maintain an amicable relationship in a non-litigious environment"
On the 21st December 2004, Chapter 474 of the Laws of Malta, entitled ‘The Mediation Act’ was enacted with the scope of encouraging and facilitating the settlement of disputes in Malta through mediation. The definition of mediation under Maltese law is; the process in which a mediator facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute.
In a family law context, it is mandatory for spouses to attend mediation sessions prior to acquiring Court authorisation to proceed with a law suit for personal separation or divorce. For the purposes of this article, reference will be made to instances where the parties are spouses; opting for an amicable separation. It must be noted that Mediation is mandatory in the event of disputes between parties (whether married or otherwise) concerning; the care and custody of minor children, maintenance payments, visitation rights, the community of acquests or were the need arises for any variation to any matter previously regulated by a court judgement, decree or deed of personal separation entered between the parties.
The Benefits of the Mediation Process
The objective of mediation is to assist spouses to maintain an amicable relationship in a non-litiguous environment, where they are encouraged to plan a future beyond separation by discussing and creating fair and reasonable arrangements for their benefit and in the best interest of their children. The mediation process can present many benefits; it is first and foremost expeditious when compared to the duration of a court case, making mediation more cost-effective. The proceedings are informal allowing the spouses concerned the opportunity of dialogue, mutual understanding and negotiating in an out-of-court context. This can also assist the spouses in the process of letting-go and in creating clear boundaries in issues of conflict. As opposed to a lawsuit – mediation sittings are not open to the public, and no fault or punishment is attributable to any of the spouses for the dissolution of the marriage.
The Procedure to Institute Mediation Proceedings
To initiate the separation process, at least one of the spouses must be resident or habitually resident in Malta. Either spouse, through a legal representative of their choice, needs to file a letter addressed to the Registrar of Courts, indicating details of the parties concerned, reasons for requesting the institution of mediation proceedings as well as a request for the nomination of a mediator. Once a mediator is selected, and has accepted the nomination, the mediator sends an appointment letter to both spouses containing the date and venue of the mediation sitting.
By virtue of an amendment to the Mediation Act, Act VIII of 2017, mediation sittings can also be held online. This allows for mediation to occur when one of the parties to the proceedings is not in Malta, and is therefore unable to be physically present at the mediation sitting. When attending mediation proceedings, each spouse needs to be assisted by a legal representative.
The Confidentiality Rule
Mediation proceedings are very informal, and parties to these sittings are not required to provide any sworn statements on issues discussed. In fact, no evidence may be adduced before any Court of Law regarding anything divulged during these sittings, and the mediator is not legally permitted to testify on any proposals or evidence brought forward during mediation proceedings. This is clearly explained to the parties at the onset of the mediation process. All communications and settlement discussions by and between the participants in the course of the medation process are to remain confidential. This rule binds all participants and not only the mediator.
The Role of the Mediator
When the purpose of mediation is for the parties to obtain personal separation, the mediator is legally obliged to verify whether a reconciliation between the parties is possible. This occurs during the first sitting, allowing the spouses space to communicate their wishes. If reconciliation is possible, mediation proceedings are paused for the spouses to reconsider; whereas when reconciliation is not possible, (if one of the spouses wishes to proceed with separation) the mediator proceeds with the sitting.
The mediator’s task is to faciliate discussions, and where an obsacle between the spouses is noted, the mediator can offer fair suggestions in order to help reach consensus. The spouses and their legal representatives are expected to take an active role in the discussions.
Reporting to Court
In the event any issue crops up during the mediation process which requires immediate attention such as; no maintenance is being paid, or the parent who is exercising visitation rights is doing so in a irregular manner at the detriment of the parties’ children – the effected party may file an application requesting the Civil Court Family Section to issue a Court Order. Once issued the Court Order would be temporarily binding on the parties; either until the parties reach a settlement, or until the issue is determined by means of a Judgement.
When a Settlement between Spouses is Reached
Where spouses reach an agreement on all matters concerning their separation (property, alimony, visitation rights and care and custody), this is recorded in a written agreement referred to as the separation agreement. A copy of this agreement is handed to the mediator, who is then tasked to read through its contents in the presence of the parties and their legal representatives to ensure that it contains lawful provisions and that both parties are satisfied with the final draft. If everything is deemed to be in order, the mediator will transmit a copy of tis agreement to the Civil Court Family Section. The family Court Judge will review the contents of the agreement and proceed to issue a decree either approving, rejecting or requesting amendments to the said draft. If the Judge rejects the draft or requests amendments, the spouses must make the necessary changes and re-submit a new draft as requested.
When the separation agreement is approved, the Judge will authorise the spouses to proceed with the publication of the deed before a Notary Public. This would require an appointment wherein the spouses and their legal representatives appear before a Notary, where the Notary re-reads the agreement, and the separation agreement is signed. From that day on, disputes arising between the spouses, are regulated by the separation agreement.
All things considered, an amicable separation is not always possible, and the Mediation process cannot be regarded as the best solution for everyone. However, through the mediation process, spouses are given the opportunity to explore the possibility of settling their separation away from public Law Courts, in an amicable, private and informal environment.