The Malta Mediation Centre may have been set up to speed up civil proceedings back in 2004, but it has only been used sparingly ever since – and by just one judge at that.

The report prepared by the justice reform commission headed by former European Court of Human Rights judge Giovanni Bonello revealed that just 24 cases were referred to the mediation centre between its launch in late 2004 and the end of last year – an average of just three cases every year.

“This is a derisory amount which does not deserve a national mediation structure,” the commission exclaimed, in a point which, it felt, deserved one of only two exclamation points it used in the 443-page report.

The commission emphasised that mediation was a very effective manner of reducing the judiciary’s caseload, and consequently reduce costs and excessive delays in proceedings.

It recognises that often, a low proportion of cases are referred to mediation when this referral is voluntary, but stopped short of calling for compulsory mediation. However, it said that the parties involved must be encouraged to seek mediation as much as possible, as it is also in their interest.

What it suggests is that jurists – a suggested upgrade to the present task of judicial assistants – writes to the parties to the case before the pre-trial hearing is held, inviting them to seek mediation to avoid further court proceedings. If both parties agree, this mediation should take place within a month.

Mediation should not take place in constitutional cases, or in cases whose urgency is established by court decree, but the commission is nevertheless arguing that mediation should be extended to other tribunals, such as the Rent Regulation Board, the Land Arbitration Board and the Rural Lease Control Board, among others.

Various other measures in the report indirectly concern mediation, including extending legal aid to cover mediation expenses, among others.

Mediation also takes place at the Family Court, and is mandatory for couples initiating separation proceedings.

But the commission is also calling for reforms in this field, insisting that mediators should no longer serve as reconcilers, since the two roles were not complementary. Reconciliation itself, it added, should not be compulsory, although the Family Court should offer reconciliation services at the couples’ request.

According to the commission, the Malta Mediation Centre should also be made responsible for the appointment and training of all mediators, including those serving at the Family Court.

‘Informal’ mediation prevails, according to Chamber president

According to Chamber of Advocates president Reuben Balzan, however, the main reason behind the low referrals to the Mediation Centre is likely the fact that mediation is typically carried out in an informal manner, out of court.

“The vast majority of lawyers will try to reach a solution out of court. Not all cases end up in court: if anything, only a minority do,” Dr Balzan told this newspaper

He noted that lawyers seek a common-sense approach, and will prefer to advise clients that their claims are unfounded rather than pursue the matter in court.

The Chamber president also observed that as a consequence of these informal mediation efforts, the possibility of referring to mediation centres may not be considered.

He added that clients themselves would not seek mediators: as they would trust their lawyers to negotiate but not a mediator they do not know.

“It’s more of a cultural issue,” he said.

Dr Balzan also pointed out that in many Family Court cases, the mediation efforts would similarly be carried out informally, and that the official mediation efforts would often simply formalise agreements that have already been reached.