By Analise Magri – Paralegal
The process of mediation most generally requires the parties to a dispute to sit around a common table together with an impartial third party with the intention of reaching an amicable settlement between them. Mediation was for quite a long time absent within the family law realm, however this all changed in 2003 through amendments occasioned in Maltese law.
Ever since 2003, prior to commencing separation or care and custody proceedings, either of the parties must file a letter at the Family Court Registry requesting the registrar to appoint a mediator in his or her case, which letter must clearly spell out the details of the parties along with the date and place of marriage (where applicable) and indicate whether any children were born out of the relationship or marriage.
Once a mediator is appointed and a date is set, he or she sets up an appointment with the parties and their legal representatives in one of the mediation rooms set at the Family Court Building, in order to discuss their pendencies. Right from the get go, the mediator addresses the parties and informs them that such a procedure is one on a without prejudice basis and cannot be used against them if the case proceeds to a court hearing. The mediation process is henceforth fully confidentional. The mediator also advises the parties that he or she may not be summoned to testify in court and reveal anything discussed in mediation.
The mediator initially asks the parties to declare whether there are any prospects for reconciliation between the couple. Even though most oft the parties are head set that they want to move forward with separation proceedings, the mediator is still compelled to ask this question to the parties in order to elicit their intentions. As well conceived, it takes two for a relationship to suceed. Thus, a willingness on the part of one party to reconciliate, but a negative reply on the part of the other would still call for the separation proceedings to continue.
At the next stage, the purpose of the mediation shifts towards reaching a settlement to the parties’ grieviances, all in all meaning that the parties start laying their cards on the table and exploring their agreements and addressing their disagreements. To examine such possibilities, the parties are granted a maximum of eight sessions. If the parties manage to reach an amicable settlement, their agreement terms are reflected in a formal contract, which contract is read and explained to them by the mediator and subsequently filed before a Judge for his or her approval. Once approval is granted, the parties appear before a notary of their choosing in order to formalise their agreement and give it the status of a public deed.
Whilst mediation proceedings are on going, any party to the proceedings may file court applications before the Family Court for the Judge overseeing the mediation to provide provisional orders (legally known as pendente litem orders) with regard to certain issues – most often relating to Maintenance and access rights. These applications are nothing close to a lawsuit. They are very often determined within the Judge’s chambers, and it is only very rarely that a hearing is granted.
What happens if upon the lapse of eight seesions the parties fail to reach an agreement? Or what if the parties are so estranged from one another that an agreement is impossible? In these two scenarios, the mediator would very often advise the Judge overseeing the mediation to close the mediation proceedings and to authorise the parties to proceed with a relative lawsuit in order for the court to litiguously deal with the dispute. Upon the closure of mediation proceedings, the parties are given a period of two months (or any other period which the court may determine) in order to file their lawsuits.