Engaging mediation in care and custody disputes

Abstract

Mediation aims to resolve an issue by means of an amicable settlement; an alternative dispute resolution. Conflict is considered to be part of human nature; therefore, such concept contributes towards resolving problems on the parties’ own terms especially in issues related to the family particularly minors. Hence such process not only facilitates communication between parties who were in love and had children, but shall also leads them towards finding a way forward in co-parenting. Engaging mediation in care and custody disputes shall contribute towards introducing the concept of such alternative dispute resolution between parents who are unmarried and have children. A distinction is being made in this regard for the reason that any dispute related to the family, even in instances where there are unmarried parents, they shall seek for a remedy in the same manner as couples who would like to obtain a personal separation. Mediation can be either voluntary or mandatory; whilst the former in itself refers to circumstances where the parties from their own free will are willing to discuss and resolve their pending dispute before a third party neutral, on the other hand, mandatory mediation since it is being imposed by law or a court order, the outcome of such process may differ from a voluntary mediation. Since in Malta Family Law disputes are automatically referred to mandatory mediation, such research aims towards introducing various concepts which shall lead the parties to resolve their issues in an amicable manner whilst keeping at the forefront the best interests of their child. Albeit parents are no longer together and may no longer see eye to an eye, such factor shall not affect their child’s life. Therefore, by virtue of mediation, such facilitation in communication shall contribute towards finding a way forward especially in co-parenting; whilst at the same time the parties can move on with their life. This dissertation aims to examine mediation within the Maltese setting whilst at the same time, reference is made to to foreign jurisdictions. Such review shall contribute towards enhancing the Maltese set up so that other than considering mediation as a kick-off for a lawsuit, mediation shall serve as a tool which shall help parents to reach a compromise based on their own needs and wishes, in a timely manner and without any exorbitant legal costs.