Letters • December 21 2003

A mediator - to be or not to be

Dr William Azzopardi
Zabbar
The debate reported in your newspaper on the courageous creation of the family court and especially on mediation made very stimulating reading. Unfortunately, there was nobody trained as a mediator or at least cognisant of the discipline to give his opinion on the wave of innovations due. I have been exposed to both the glories and pitfalls of family mediation through practicing mediation and especially through participation in the European Forum on Family Mediation and its Standards Committee.
A mediator needs to be distinguished from a counsellor. In this context, a mediator’s role is that of assisting separating couples in reaching an agreement on maintenance, property and above all, on the needs of their children. The functions of a marriage counsellor, whose role it is to assist the couple to reconcile and those of a mediator cannot be amalgamated- and this for various reasons, one of which being the need to protect those clients who need to disclose personal information to a counsellor.
Another point raised was the fear that women can be tricked if their spouses hide their real income. One needs to emphasise that participants of mediation are informed in writing from the very start that they are encouraged to seek advice from their lawyers. If a client or client’s lawyer feel that the client has been cheated by her partner, then she could stop going to mediation and seek a Court decree or judgement. Mediation does indeed have limitations and could be inappropriate in certain cases, notably cases of physical and psychological abuse.
Then, there is the fear that mediation might take lawyers’ work. The lawyer and the mediator have different functions. Often lawyers might not have the training or the time or the ability to deal with the social and emotional issues that complicate family conflicts. This is where a mediator comes in. Clients would still need the advice and the support of their lawyers but the forum and method of dispute resolution are different from that which we have been used to till now. One needs to add that there are a large number of members of the legal professions who have been trained as mediators. A mediator never gives advice, nor does he take decisions for the couple.
What happens if something goes wrong during mediation? Agreements reached in mediation need to be under the scrutiny of the clients’ lawyers and clients can still go to Court, should they feel deprived of their rights. The practice of mediation itself needs to be regulated in various ways. There is such a thing as supervision of mediators. The UK College of Family Mediators has a list of Professional Practice Consultants. One of the functions of a supervisor is to see that the Code of Ethics is adhered to.
Criticism also centred on the ‘dubious’ qualifications of mediators. These question marks are understandable and necessary as the matter of qualification in Malta is still completely unregulated, and therefore totally inconsistent and unclear. The European Forum specifies that recipients of Family Mediation training need to have professional qualifications in law or human science or else exceptionally, 5 years practice in an organization providing assistance to couples and families. Further, courses accredited by the Forum involve a practicum and assessments. The level of competence or expertise that Malta chooses for its mediators impacts on the success this aspect of the family Court will have. There are of course other factors at play and mediation is merely one.