From Dr E. D. Bezzina LL.D.
Unfortunately, and I truly state this with regret, the Institution of Mediation has by-and-large served only one purpose, albeit a political purpose, and is not in the interests of the persons affected. The government can boast in the House of Representatives and in the media that it succeeded to halt the number of separation proceedings being filed in court, though in realty this is not so.
The latter point may be debatable so I will leave that argument for a later date. In today’s letter I will comment about some mediation deficiencies, which are causing many people to suffer unnecessarily as they have to cope with many unforeseen difficulties.
To begin with, there are straightforward cases when a married couple decides to separate and, by reason of their matrimonial maturity, they are in a position to appoint one lawyer of their choice and advise him/her, subject to legal conformity, what their terms and conditions are to obtain a consensual separation.
It is obviously clear that once a married couple has reached this stage of matrimonial maturity, accepted the reality of their situation and mutually agree to a consensual separation, it is a ridiculous waste of time to have to submit a letter to the Family Court. This is done because a mediator is appointed to verify whether the terms of the agreement reached by the consenting couple is indeed mutual: this is truly stupid and utterly preposterous!
It is obvious in such circumstances that the situation prior to 16 December 2003 was different. Then, the couple, through their law consultant could apply to the Family Court and the presiding judge simply vetted the contract embodying the consensual separation. Obviously, he would have the couple in court to confirm that whatever was written in the Separation Contract was acceptable and according to their instructions. Once the court ascertained legal conformity with the contents of the legal Separation Contract, it authorised that couple to be legally separated in accordance with the law.
It does not have to take a too brilliant-a-reader to conclude that this is one major deficiency in our Mediation Institute. Couples are made to waste precious time and incur further expense and fees simply to satisfy the ego of someone in authority, who will state that the Mediation Institute has worked well for many couples in our country. In reality, those of us who work regularly in this field can confirm that this is not so!
Other shortcomings relate to urgent matters such as altering the terms of a separation contract when it comes to the supreme interests of minor children, issues relating to care and custody and to maintenance. Another issue that requires an immediate decision is when minors need to be taken abroad. Obviously, submitting an application to a mediator is going to involve unnecessary waste of time; and if the application has very urgent objectives behind it, the purpose of filing such a letter in such circumstances is thoroughly undesirable, besides being extremely inconvenient and unjust to the parties affected.
Again we should resort to the situation prevailing before 16 December 2003, when parties could file an appropriate application before the Second Hall of the Civil Court (as it was then known). The presiding judge would be immediately aware what the needs of the and provide for an immediate solution, if he so deemed fit. As it is now, we have to go through the impractical solution of writing letters to the Family Court. A mediator is then appointed, very often with appointments weeks away from the date of application (even though the Laws and Regulations now state otherwise). In the process precious time is lost, unnecessary expenses and fees are incurred, and inconveniences, injustice is done to the despairing applicant involved.
We could go on and on: the bottom line is that on the whole, the Mediation Institute, as confirmed by some of the mediators themselves, has proved to be an inconvenient and unjust one. It should be thoroughly restructured and rethought in view of the bitter, practical experiences that people have gone through during the short time it has been operational (difficulties foreseen by those who were genuinely aware of what was going to happen with these new very often unpractical regulations). If, for political purposes, we desire to keep the Mediation Institute, let us do so by all means; but not at the expense of the couples involved who have every right as individuals to get on with their lives, without waste of time, without incurring unnecessary expenses, and without having to wait for decisions that could be taken much before were it not for the hindering effects of the Mediation Institute: these are some mediation deficiencies which have been experienced and for which immediate remedies are requested.
Emmy D. Bezzina
VALLETTA