Mediation in the settlement process

Mediation has been defined in many ways but perhaps the easiest way to understand mediation is to think of it as facilitated negotiation. The mediator's role is to assist parties to negotiate their own terms of agreement. The mediator "facilitator" is thus distinguished from the legal "advocate" and the arbitrator-judge "decider".

A frequent first reaction by lawyers is to question the need for mediation. After all, most sophisticated lawyers almost invariably settle their disputes without the intervention of a mediator. Therefore, what is the point of mediation?

The difference with mediation lies in the added value the mediator brings to the settlement process. For starters, the mediator's focus is not so much whether to settle - most cases in litigation and arbitration settle - but rather when and how settlement is reached. Mediators pay particular importance on nurturing effective communication and on preserving ongoing relationships. Mediators improve the quality of negotiation by focusing discussions on needs, interests and priorities, as opposed to positions. They do this through the use of summary statements that communicate adversary positions in a manner that can be heard by the parties and by reframing statements of claim into issues that can be resolved. Mediators, therefore, create a problem-solving environment where effective negotiation among the parties can take place.

The introduction of a new system, particularly one that presents change among deeply-rooted legal and judicial traditions, is often viewed with suspicion and profound criticism. The introduction of family mediation in Malta is no exception. It is not unique for groups of society, particularly members of the legal community, to resist such change. Invariably, resistance of any form is often the outcome of lack of information, fear and a natural reaction to resist and oppose change. While change typically becomes less threatening as time goes by, the importance of information, evaluative feedback, flexibility to adopt further changes and consultation among relevant stakeholders, users of the system and the public in general, is crucial. Failing that, uncertainty and hostility may very well block progress and development at any stage.

The breakdown of a marriage similarly throws families into an unplanned situation of unexpected change and transition. Many families underestimate the challenges that such a transition brings. Typically, couples are steered to resolve separation-related issues by traditional means and while most complain of the inadequacies, financial costs and delays of the litigation system, they pay little attention to other forms of resolution. Family mediation is a proven and effective means of approaching marital separation issues in a less traumatic way. Perhaps the most important benefit of mediation in family law and child support cases is the preservation of the relationship that must exist between parents after separation. Once parents, parents forever! Cooperation between parents will go a long way to reduce stress and anxiety in the lives of their children. As parents cope better, their children do so as well!

Separation is a stressful and difficult time. Custody litigation damages the children regardless of the result. As important as money is, the economic consequences of fighting in court can be dwarfed by the impact it will have on children. On-going parental conflict is generally the single most damaging stressor for children.

Separation may also be a journey filled with potential for growth and development. Family mediation is intended to enhance that potential for growth and to help couples and their children design a future that is tailor-made to the needs of a newly restructured family.

It is not the separation per se but the conditions and agreements the couples create during and after separation that will determine the family's adjustment. Family mediation is designed to facilitate family adjustment.

Ms Spiteri Gonzi is a mediator practitioner