BY GIUSEPPE DE PALO & MARY B. TREVOR
Mediation had already come to Malta before the 2008 European Union Mediation Directive; the country had passed a Mediation Act in 2004. Following the directive’s release, Malta amended its existing act in 2010 to comply with the directive’s requirements to support ADR in cross-border matters.
Malta’s act applies to both domestic and cross-border mediations. An unusual feature of the act, there since its original enactment, is that Malta turns over virtually all of the mediation implementation and regulation to a private entity, the Malta Mediation Center, which is run by a Board of Directors. See http://bit.ly/WGloGr.
All mediations in Malta are conducted through the center, and the center’s responsibilities in the mediation field are extensive.
They include ensuring the implementation of the act; accrediting mediators and maintaining a list of the accredited mediators; determining the fees mediators can charge; assisting mediators in their work; drafting the code of conduct and other requirements for mediators; making information about mediation available to the public; and investigating and disciplining, as necessary, mediators accused of violating standards of conduct. The center also periodically offers trainings for mediators.
While the Malta Mediation Center is nominally independent of the government, its board must report its budget to the Minister of Justice. The minister uses the information to determine the level of financial support the government will give to the center. Therefore, the center, while a nongovernmental entity, is answerable to the government to a certain degree.
Together, the act and the Code of Conduct developed by the Center define the role of the mediator in Maltese mediation.
Mediators must be accredited by the Center and take continuing education courses. Based on the mediator’s experience, the mediator’s entry in the list of accredited mediators will indicate a specialty area, such as civil, commercial, or industrial relations. Current Chief Justice Silvio Camilleri has raised the concern, however, that training requirements for mediators are not sufficiently strict, so this area may be further developed. See “Chief Justice suggests mediation while appeals are pending,” Times of Malta.com (Oct. 3, 2011)(available at http:// bit.ly/okYr7t).
The Center assigns cases to mediators, although a mediator may reject the assignment. If the mediator accepts the assignment, the mediator must be impartial; any information suggesting that the mediator’s ability to remain impartial may be compromised must be revealed to the parties. Should the parties consent to the mediator continuing, the mediator may do so but can withdraw if he or she is concerned that impartiality may not be possible. The parties themselves also may challenge the mediator’s impartiality.
The neutral sets the mediation schedule and serves only a facilitative role in the mediation; the parties are encouraged to seek advice from a legal professional before signing any agreement. It is, however, the mediator’s responsibility to ensure the fairness of the mediation, and the mediator may terminate the mediation if it appears that the process is not proceeding fairly.
A distinctive aspect of mediation in Malta is that the center’s resources are available to the mediator during the mediation. The mediator may turn to the center if a challenge arises for which the mediator wishes to seek guidance.
As a general matter, mediation under the act is voluntary and initiated by the parties, although the act does provide that mediation proceedings may be initiated by court order.
The act establishes a broad confidentiality privilege that bars the use of evidence acquired through a mediation in subsequent proceedings. Communications and settlement discussions between mediation participants are confidential, and the mediator must make the parties aware of their duties to maintain confidentiality.
The mediator must keep confidential information revealed by one party in mediation unless that party authorizes its disclosure to the other, and, unless otherwise agreed in writing by the parties, a mediator may not give evidence in a subsequent judicial proceeding in the same matter. Confidentiality may be breached, however, for policy reasons or as necessary to carry out a mediated agreement.
Participation in mediation suspends the statute of limitations for the duration of the mediation, unless doing so is contrary to an international agreement which Malta has signed. Malta sets no maximum time period for a mediation. If the parties reach an agreement through mediation, and one party requests the others’ consent, the agreement may be ratified as an “executive title.” That designation is the equivalent in enforceability to a court’s judgment.
A mediation will end if (a) the mediator determines it is appropriate to do so, (b) a party will not continue as a participant, (c) the parties cannot reach an agreement, or (d) the parties reach a full or partial agreement.
Currently, despite positive perceptions about its potential as a dispute resolution method, mediation is not extensively used in the Malta business community. It is used more extensively in the family law area, where divorcing couples are required to participate in mediation.
But there may be prospects for future developments that may increase usage. In addition to calling for reforms in the training requirements for mediators, Chief Justice Silvio Camilleri has called for broader reforms. In the face of an excessive backlog of cases, he has urged that the Maltese judicial system develop case management procedures, which would include mediation use. See Times of Malta.com, supra. Should such reforms develop, Malta already has systems in place to take on the increased mediation numbers that could result.