Frequently Asked Questions
In Malta, mediation is regulated by the Mediation Act (Chapter 474 of the Laws of Malta) which came into force. on the 21st December, 2004. The Malta Mediation Centre was set up on the 7th July, 2005 when the first Board of Governors of the Centre was appointed.
The Centre, which is a body corporate with distinct legal personality, was set up for the purpose of providing a forum where two or more parties in dispute or in litigation may voluntarily refer or be referred by the Court or other adjudicatory authority, in order to resolve their dispute by mediation, namely, the process in which a mediator, duly accredited by the Centre, acts as an impartial third party with a view to facilitating negotiations between litigants in order to assist them resolve their dispute by reaching a voluntary and timely agreement.
The principal Act was amended by Act IX of 2010 principally for the purposes of transposing into our legislation the provisions of Council Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Matters. The amending Act came into force on 14 January 2011 by L.N. 10/2011. The provisions of the Directive which regulate cross-border disputes were extended to apply also to domestic cases.
In view that the provisions of our Mediation Act were, by and large, compliant with those of the Directive only a few minor amendments were required to be made to the principal Act as a result of the adoption of the Directive.
Mediation is defined by the Act as a process in which a mediator, who is a neutral, qualified and impartial individual, facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute.
Disputes may be referred to the Centre for mediation:
- voluntarily, following a decision made by the disputing parties. The parties in dispute are required to submit their request for mediation by filling the Application eForm through the Centre’s website www.mediation.mt by clicking on the menu ‘EFORMS and FAQS’ or by accessing the government’s website by clicking here and submit online. Upon payment of the fee as per Tariff of Fees S.L. 474.01, the Centre provides the parties with a list of accredited mediators to select one of them to conduct the mediation proceedings; or
- following a decree or order by the Court or other adjudicatory authority at the request of the parties to the proceedings after litigious proceedings would have already commenced. Where the court considers it appropriate that the dispute may be resolved through the assistance of a mediator, it may, on its own initiative refer the dispute to mediation; or
- by law, that is by any authority not being an adjudicatory authority or through the execution of a clause in a contract requiring the parties to submit to mediation any dispute arising under or out of the terms of the contract.
Disputes involving civil, family, social, commercial or industrial matters may be referred for mediation. On the other hand, cases requiring a legal ruling or a binding precedent or those involving criminal offences or where a plaintiff seeks punitive damages, are not appropriate for mediation.
It should be noted that family mediation refers to certain family disputes such as, for example, inheritance disputes or disputes arising out of family-owned business. It does not include separation or divorce which fall under the competence of the Civil Court, Family Section, and are regulated by specific legislation.
Whether in the case of a voluntary mediation or one that is referred to the Centre by the Court or other adjudicatory authority or by law, a mediator is selected by the disputing parties from the list of mediators approved by the Centre, provided the person chosen is mutually acceptable to all the parties in dispute. If the parties do not agree on the choice of a mutually acceptable mediator, the Centre will appoint as mediator the person whose name is next on the list of approved mediators.
The principal role of the mediator is to facilitate communication between the parties in conflict with a view to helping them reach a voluntary resolution to their dispute that is timely, fair and cost-effective. Although the mediator manages the meeting and is in charge of the proceedings, he/she should not impose solutions or decisions and has no power to force a settlement. The mediator should not act as a judge or as an arbitrator. A solution should only be reached by agreement between the parties. They are responsible for the ultimate resolution of the dispute. Furthermore, a mediator has no right or duty to provide legal advice to the parties even if he/she happens to be a lawyer. The parties should seek legal advice solely from their legal counsel. The mediator, however, may raise issues and help parties explore options.
The mediator’s primary duty is to follow the Centre’s Code of Conduct for Mediators in the performance of their duties and to observe strictly the basic principles of impartiality and transparency. A mediator should hold the trust of the disputing parties throughout the whole mediation process. If during the mediation process, the parties, or any one of them, express doubt on any circumstance concerning the mediator’s impartiality or independence that was not known to them prior to the commencement of the process, the mediator should withdraw and be replaced by another mediator to be appointed by the Centre.
Confidentiality is the cornerstone of the mediation process. In this regard the Act stipulates that everything said during the course of mediation, including all communications between the parties and the mediator are confidential and no evidence of anything said or documents produced during the mediation process are admissible in any litigation proceedings. Besides, a mediator cannot be summoned as a witness on what took place and on what came to his/her knowledge during mediation proceedings.
The mediator may, however, disclose to the Court or adjudicatory body any information obtained during the mediation process provided all the parties to the mediation give their written consent. Moreover, the disclosure of the content of the agreement resulting from mediation (i.e. the settlement agreement) is also permitted when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person or where the disclosure is necessary in order to implement or enforce the agreement.
The Act provides that a mediation party may, during mediation proceedings, be assisted by an advocate, legal procurator or any individual designated by him before or during the mediation.
Mediation may be terminated on one of the following grounds:
- when the parties reach full agreement; or
- when the mediator notifies the disputing parties in writing that in his/her considered opinion the mediation is unlikely to result in a settlement; or
- when the parties reach a partial solution and the mediator determines that further mediation will not resolve the remaining issues. or
- when one of the parties elects not to continue with the mediation process.
The mediation parties are required by law to execute a written agreement (settlement agreement) when all issues are resolved. The content of the written agreement will have the same status of a judicial decision or judgement provided all parties agree,.
The following are some of the advantages which mediation has over litigation:
(a) in litigation it is the Court that has exclusive control of both the procedure and the outcome. In mediation, the parties retain full control of their dispute and it is they who are responsible to work together in order to reach a settlement. Whilst mediation attempts to provide a win/win outcome, litigation, is by its nature, a win/lose process;
(b) mediation is far less costly than litigation and is a much faster process. Civil lawsuits very often take years to be concluded whilst the whole mediation process may be completed within a few weeks, or even in a matter of a few days;
(c) Court proceedings are held in public whereas mediation proceedings are held in private and are strictly confidential;
(d) it is very seldom for any form of friendship or cooperation to continue to exist between parties that end up in Court. Where agreement is reached through mediation, the parties get to understand each other better and the pre-existing business or other relationships that prevailed prior to the dispute are normally restored.