The Malta Independent 5 March 2024, Tuesday
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The undisputed advantages of alternative dispute resolution

Mark Said Sunday, 11 February 2024, 08:49 Last update: about 24 days ago

Going to trial to have a judge hear evidence and make a decision is sometimes the most effective way of resolving a difficult legal dispute. However, it is also one of the slowest and most expensive ways of resolving a dispute. We all know that the caseload of our judiciary is on the increase, but there is a conspicuous lack of awareness among the general public as to the available alternative dispute resolution mechanisms we have in place in our country. Perhaps even the legal profession is innocently to blame for not promoting such effective mechanisms in the first place.

For quite some time now, in Malta, we have had many alternative dispute resolution channels that, if properly promoted, should keep a substantial number of litigants away from the court halls. For example, the Malta Mediation Centre has been functioning since 2005, but with negligible results. At law, mediation is a process in which a neutral, qualified, and impartial individual facilitates negotiations between parties to assist them in reaching a voluntary agreement regarding their dispute. The law requires that all family disputes be first discussed with a mediator. It is only when the parties do not agree before a mediator that they may proceed before the Family Court for its decision. While disputes may be referred to the Centre by the court's own initiative where it considers it appropriate that the dispute may be resolved through the assistance of a mediator, voluntary and contractual mediation of disputes barely increase the number of disputes satisfactorily settled through mediation.

Arbitration in Malta is another alternative dispute resolution (ADR) procedure employed to settle commercial disputes. Following the enactment of the Arbitration Act in 1998, the Malta Arbitration Centre was set up and is now the main dispute settlement instrument in litigation cases when parties agree to submit their claims to it. It is employed to settle commercial disputes, widely ranging from insurance, construction, public procurement, and maritime issues to litigation between shareholders. This particular alternative to court proceedings offers a unique set of advantages in that, for example, the parties can choose the rules under which the dispute can be resolved.

Under our Restorative Justice Act of 2012, the victim-offender mediation process can somehow satisfactorily prevent the victim of a crime from having to go to court to be compensated for the damages caused by the offender. One might wonder what sort of mediation can be done and what sort of agreement can ever be achieved between the offender and the victim. Among many other issues, the agreement reached can include compensation for damages. Again, perhaps because of not enough promotion and publicity or because of improper management and administration, the number of successfully mediated cases within this sphere of criminal justice is somewhat disappointing, whereas there can surely be room for substantially increasing it.

But there is more to ADR. These dispute resolution methods can be used to resolve cases faster and cheaper than going to court. These methods can also be used, however, after an action has been started. One could add a few other, little-known processes to the ones outlined above that could also achieve satisfactory results without ever venturing into the court edifice. There is the neutral evaluation process, in which parties obtain from an experienced and expert neutral third party a non-binding, reasoned evaluation of their case on its merits. The opinion or assessment is expected to have persuasive value, especially because the neutral third party is jointly selected. This could be followed by the negotiation process, which is basically any form of non-facilitated communication in which the opposing parties discuss the steps they could take to resolve their dispute. Negotiation can occur directly between the parties or indirectly through people acting on their behalf, such as lawyers. This saves time and money and avoids the lengthy litigation process.

Mediation and other ADR mechanisms are a much better option than court right now. If you have a case already up and running in our courts, the time scale for getting to a final hearing is likely going to be extended as the court staff and judges try to cope with a heavy caseload. Dealing with court cases is stressful enough without the added anxiety of lockdown and the prospect of your "day in court" being dealt with via a telephone conferencing hearing or Skype, or the prospect of your case being delayed for months with no end in sight. Now, more than ever, people should be turning to mediation. It may be business mediation, corporate mediation, or family mediation to settle an estate, all of which aim to bring a case to an agreed conclusion much cheaper and faster, which makes a great deal of sense for all. It does not matter if you are bringing or defending a claim; you just need both sides to be willing to see if an agreement can be achieved using mediation.

Mediation has been around for a long time, and before the lockdown, it would be carried out at an agreed venue (not a court) with each side in separate rooms and the mediator shuttling between you, helping you find a compromise acceptable to you both. The different ADR mechanisms available in Malta are much quicker than waiting for a trial and an appeal in a legal dispute. The parties will eliminate the fear, anxiety, and risk of going through the legal system. They will be able to quickly put the dispute behind them with the satisfactory solution that they have created.

A milligramme of mediation is worth a gramme of arbitration and a kilo of litigation. Litigation is to be discouraged. One should be solicited to compromise when possible. The nominal winner is often the real loser in fees, expenses, and waste of time. As peacemakers, lawyers and other professionals have a superior opportunity to be good men. There will still be enough business.

 

Dr Mark Said is a lawyer


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