Perceptions of forcing parties to mediate without compelling them to settle : can compulsory mediation in Malta ever result in successful resolutions?

Abstract

Mediation is a voluntary process in which a trained neutral facilitator assists parties in communicating conflicting issues, in order to find a mutual acceptable solution. Dispute takes place when persons or communities differ in opinions, principles, morals or necessities. Conflict leads us to speak out without rationale thinking, being defensive and competitive and acting in an aggressive manner with the sole objective of winning the argument. This result in saying things we do not mean whilst we mean things we do not say. Such behavior raises the question, why is it so difficult for us to do what we recognize as just? And why do we end up deceiving ourselves and become entrapped in such situations? In conflict, we rarely express our true feelings or communicate how we really honestly feel. In reality, resolution can never be attained if we treat negotiations as adversarial. Mediation is a very divisive and argumentative issue particularly between supporters of mandatory mediation and those against the compulsory system. It is a conflicting and problematic subject combined with challenging legal, sociological, and political matters regarding which, several are the questions and few are the answers. This research is an attempt at identifying and debating these issues with a view to discover whether compulsory mediation should be acknowledged in Malta and whether it can ever result in successful resolutions. The concept of mandatory mediation goes against the very basic notions that current Maltese legislation on mediation is based upon, that is, mediation should always be of a voluntary nature. Besides, legal maxims that have guided courts in deciding civil and criminal cases have always been regarded and practiced by professionals in the field in an adversarial manner. The study is based on twelve interviews conducted with professionals and forty participants volunteering to undertake a quantitative questionnaire, where participants would be recommended by the qualitative interviewees. In conclusion, it is essential to emphasize that this research is not intended to determine if the concept of mandatory mediation is favourable to the voluntary system or otherwise. Nevertheless by evaluating the several positions and findings of this study, one could evaluate the following question: Can compulsory mediation in Malta ever result in successful resolutions?