Mediation : an alternative dispute resolution method for civil and commercial matters

Abstract

Mediation is one of the most effective and efficient alternative dispute resolution methods, suitable for most civil and commercial matters. In this thesis, a comparatively informed study of Maltese law and practice relating to mediation with specific reference to civil and commercial matters is undertaken. As noted in this thesis, the institute of mediation has been introduced into the Maltese legal system for civil and commercial matters through different and parallel alternative routes. As stated in the Mediation Act, parties may resort to mediation in three ways: voluntarily, or following a decree of order by a court or other adjudicating authority; or by law. Delving into these routes, an enhanced role for mediation is proposed building upon the fact that the nature of mediation is based on the parties being willing to freely reach an amicable agreement through such process. The differences between the alternative dispute resolution methods are highlighted in order to achieve a better understanding of the definition of mediation. An analysis of how the process of mediation functions in Italy and the U.K. is undertaken. This dichotomous approach will help determine whether and how the process of mediation should be improved in Malta. Moreover, scholarly debate in these jurisdictions regarding the process of mediation is also reproduced as this can ultimately help us propose further improvement to Maltese law and practice. The concept of mandatory mediation is examined throughout this thesis, attributing great attention to what the European Court of Justice, the European Court of Human Rights and European national courts have held with regard to the unconstitutionality of mandatory mediation. After delving into the various aspects of voluntary and compulsory mediation, and after analysing the various characteristics of this process, this thesis concludes that the process of mediation for non-family civil and commercial matters should remain voluntary, as mediation is an inherently voluntary process. Imposing it as an obligation undermines this process. The achievement of a successful end-result from the process of mediation greatly depends on the parties' own volition and willingness to reach an amicable agreement. It is however important to point out that the institute of mandatory mediation in certain targeted sectors can also be beneficial as it would increase awareness about mediation in Maltese society, and mediation would be made use of more frequently.