Mediation and the Maltese family courts : an evaluation of practices with an eye to improvement

Abstract

i) Rationale of the proposed study: Mediation is a conflict resolution technique which aims at attaining peace through negotiation. Mediation may be used in various contexts, of which the community, schools, family issues, commercial matters, legal issues and diplomatic matters. The major distinctive features of mediation include its private and confidential nature, its cost-effectiveness and ability to keep control of parties. Through the various strengths of mediation, of which the provision of support by the mediator to the parties, there is a high probability that the agreement reached will be complied with, thus increasing the effectiveness of mediation as a tool for conflict resolution. ii) Conceptual framework Literature affirms that various elements need to be considered during mediation sessions, for them to be perceived as effective and objective (Beer and Stief, 1997). Scholars state that the array of factors which are to be considered vary from the place where the sessions are taking place to the techniques used by the mediators (Beer et al., 1997). Mediation sessions need to be held in a place believed to be neutral for all parties, arranged in such a manner that all participants are perceived to be equal and at a time which is convenient to all. The study will analyse whether the parties are made aware of what the process entails and whether they are offered an explanation of the importance of ground rules. Perception is important especially because of the emphasis placed by scholars on issues as the explanation of ground rules, where Beer et al. (1997) argue that ground rules should not he set at the very beginning since it should not ''imply that the parties may not 'behave' or that you are worried about keeping control. Most importantly, this lets the parties get credit for being civil or respectful, rather than for just obediently following your rules" (Beer et al., 1997 pp. 93). Moreover, there needs to be a distinction between interests and positions for an effective and efficient resolution of conflict (Fisher and Ury, 1991). Mediators need to be aware of the positions people come in with, a list of problems and the corresponding list of Nevertheless the mediator has to be very careful for and conscious of any biases s/he might be subject to. The mediator needs to be self-aware and honest to himself/herself and to the parties. S/he needs to be open to any beliefs s/he might embrace and any feelings which might arise in such situation, together with the possible effects and repercussions which might arise as a result of those feelings. The mediator's awareness of biases while communicating them to the parties, advocates for genuineness and openness, heightening the possibility of a successful outcome in reaching an agreement favourable for all parties. Through the process, the mediator encourages the spouses to show respect for each other, to engage in cooperative behaviour, and to develop a workable solution to their conflict. Mediation is not just a process of generating agreement between parties to a conflict, but one of fostering resolution. In this way the conflict is not suppressed only to re-emerge in the future (Grebe, 1986 pp. 64) The conceptual framework highlighted above will be analysed in light of European Recommendation No R (98) 1 of the Committee of Ministers to Member States on Family Mediation. Thus, the analysis will take place through a number of themes namely the scope, organisation and process of mediation, the status of mediated agreements and the relationship between mediation and proceedings before the judicial or other competent authority. Also, the promotion of and access to mediation will be analysed. Moreover, Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 of Certain Aspects of Mediation in Civil and Commercial Matters will be considered. [...]