Since the turn of the century, the notion of Alternative Dispute Resolution (“ADR”) has been given a massive overhaul in Malta, especially with the emphasis made on redress via ADR by the European Union (“EU”).
One such form of ADR is the process of Mediation, defined[1] as “a process in which a mediator facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute”.
Mediation proceedings may arise out of disputes in 3 manners[2]:
The first attempts in promoting mediation were made in the year 2003 when the now extinguished Second Hall of the Civil Court (‘Sekonda Awla’) was abolished and in its place the Family Section of the Civil Court was established.
Obligatory mediation was subsequently introduced as pre-requisite[3] before initiating proceedings for personal separation and is still the rule nowadays. Upon the introduction of divorce in Malta in the year 2011, this requirement was extended to apply to divorce proceedings as well. The scope of mediation is to amicably resolve such disputes through a deed of separation by mutual consent which is then duly registered in the Public Registry and is a legally binding document.
Mediation proceedings are compulsory for other matters[4] of the Family Court such as those regarding maintenance between spouses, disputes between parties relating to custody, maintenance and visitation rights to their children among others.
The introduction of the Mediation Act[5] in 2004 led to the establishment of the Malta Mediation Centre which further widened the remit of mediation in matters concerning Commercial disputes including debt recovery. Companies involved in disputes with their creditors and/or members of the company[6] may opt to appoint a mediator to reach a compromise or arrangement. Such proceedings would then follow the principles under the Mediation Act. This is a form of voluntary mediation as it is not obligatory at law prior to instituting legal proceedings (unless the contrary is stated in the agreement regulating the relationship between the parties).
Other recent developments in mediation include the introduction of the Rent Regulation Board (Mediation) Regulations[7]. In recent years there have been many disputes regarding leases issued prior to the enactment of the Reletting of Urban Property (Regulation) Ordinance[8], ossia leases issued on or before the 31st of May 1995 and letting agreements as deemed by Article 44 of said Ordinance.
Lessors in such leases had very limited rights with regards to reclaiming their properties, changing of rents etc. Such was the scope of the mediation regulations introducing the obligatory step of first attending mediation proceedings to attempt to resolve the dispute without needing to escalate matters to court. Said proceedings are conducted as per the provisions of the Mediation Act.
In practice, mediation has proven to be a valuable form of ADR in Malta. It has substantially contributed to reducing the workload on the courts system as well as assisting parties to reach amicable agreements or compromises both in front of the Family Court as well as in the Malta Mediation Centre.
For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Chapter 474 of the Laws of Malta.
[2] Ibid.
[3] Subsidiary Legislation 12.20 of the Laws of Malta.
[4] Ibid.
[5] Chapter 474 of the Laws of Malta.
[6] Chapter 386 of the Laws of Malta.
[7] Subsidiary Legislation 474.3 of the Laws of Malta.
[8] Chapter 69 of the Laws of Malta.