Recourse to mediation should be decided by judges, not imposed - Opposition

Opposition speakers insisted at a parliamentary debate on the Family Court yesterday that the rules governing the court should be revoked and re-drawn in consultation with all interested parties. They insisted, in particular, that mediation should not be imposed on spouses seeking separation, and it should be judges who decided whether or not there should be a mediation process before cases proceeded.

The debate took place on a motion by Opposition justice spokesman Anglu Farrugia for the regulations on the new court to be annulled. The motion was defeated.

At the opening of the debate, Dr Farrugia said the opposition was in favour of the Family Court, but was calling for the annulment of the regulations on how it should operate, until they were improved. The regulations had been drawn up and published by legal notice without sufficient consultation with interested parties. And the opposition was of the view that such extensive reforms should not be brought in just by legal notice but following a proper parliamentary debate.

Was the Office of the Attorney General involved in the drafting of the legal notices or was this exercise handled by persons who, it appeared, were not versed in writing legislation?

One of the aspects that was lacking in the regulations was a proper definition of the "mediation" that was to take place when cases for marriage separation were filed.

Indeed, it did not make sense that mediation was imposed on couples who would have been de facto separated for years or cases having a history of domestic violence. The Opposition felt judges should have the discretion to decide whether a case for separation should be referred to mediation or proceeded with. This provision was seen by the Opposition as indirect interference by the government in the work of judges.

Intervening, Justice Minister Tonio Borg said mediation was not meant solely to bring couples together. When that was not possible, mediation could also help the spouses to reach a separation agreement without further proceedings.

Continuing, Dr Farrugia said some of the persons included in the list of mediators lacked experience in this field, yet they would be taking on responsibilities previously exercised by judges and lawyers with a wealth of experience. This was a point also raised by the Chamber of Advocates in a seminar on the Family Court, hosted by the Labour Party, which was not attended by anyone from the government.

Dr Farrugia said another aspect was the financial cost of the mediation service.

Intervening, Dr Borg said the mediators on the government list were free of charge, but the parties could, by agreement, opt to choose from another list of mediators.

Dr Farrugia said it was ridiculous that the mediators were part time and had to juggle the time they could allocate to the court. And the parties were ending up shopping around as the mediators were charging different fees.

Dr Farrugia said that the government needed not only to review the regulations on the operation of the Family Court, but also the staff. Since it opened on January 16, the characteristic of the court was administrative confusion.

Marie Louise Coleiro, Opposition social affairs spokesman, argued that there was a good basis for consensus over the legislation. The values of the family were held close to heart by both sides, and both agreed that the interests of children should be a top priority.

So she could not understand why the government had not moved the legislation before the House for discussion in the normal manner, rather than resort to legal notices. Why did the government not seek consensus?

She said couples seeking a separation faced long delays in the legal process, and without an adequate structure, the delays would grow. This was the first thing that the reform should have tackled.

Although the opposition did favour mediation, it did not agree with its blanket imposition on all couples. How could mediation be imposed on people who had been apart for years, who had extra-marital relationships, children outside of marriage, or who were the victims of domestic violence? Unless mediation was accepted voluntarily, it would serve no purpose.

Who would a person mediate with when his or her spouse had left the country?

Ms Coleiro also questioned how mediators were expected to draw up separation contracts when they were not trained to do so. To whom was the mediator accountable?

She said the costs of a separation case would be prohibitive, especially in the case of women who were financially dependent on their husbands. The cost of instituting a case had already gone up to Lm160. Couples who wanted to speed up the process would have to appoint a paid mediator, their lawyers would have to be present, and the children's advocate would constitute yet another expense.

Joe Abela (MLP) praised the government for having finally set up the Family Court but said it was still true that only the well-to-do parties would be able to choose their mediators.

Why did the mediators not have secretaries, he asked. The state-aid mediators were only part-timers who had a lot to do on their own account. Why should a spouse who was afraid of her partner's violence be constrained to sit with him and a mediator around a table?

Mediators themselves admitted they had been given no training in how to analyse a problematic marriage. It did not do much good for someone qualified in commercial mediation to try their hand at marital mediation. But the mediators' qualifications had never been revealed.

Who would assign and pay for legal counsel for children?

Evarist Bartolo (MLP) said there were so many different aspects in trying to save a broken marriage that mediators could not be expected to know it all. To whom would the mediators be accountable in their work?

Jose Herrera said the law was stupid and ridiculous to impose mediation even in cases were reconciliation was clearly impossible, such as where the spouses had long been separated and where there was a history of domestic violence. The government was being paternalistic and interfering in people's private affairs.

It was not true that the mediation service was needed because many separation contracts contained unfair conditions. Such instances were few and far between. And the government should not involve itself in the way such contracts were drawn up either. Nor should it act like lawyers did not know their job.

Winding up, Dr Farrugia said it was shameful that the government had not sought to take up any of the opposition's proposals, made after consultation with all parties at a seminar attended by everybody except the PN.

He had been informed, Dr Farrugia said, that the companies which were asked to conduct courses for the mediators were disgusted at the way the duties of the mediators were laid down in the regulations. For example, the mediators were expected to draw up draft separation contracts when reconciliation was not possible but the spouses agreed to try to reach consensual separation.

Indeed, even the academic standard of many of the mediators was questionable.

The opposition would continue to insist that mediation should not be imposed across the board, even in cases where, clearly, there was no chance of reconciliation.

Dr Farrugia said that once mediators were not court experts, how would one assure the privacy of the parties?

He said that in terms of the regulations, a situation of fast and slow track separations could be created where well-off spouses could select a mediator of their choice who would quickly decide there were no grounds for reconciliation and the case would move ahead. Meanwhile, the less well-off had to wait in the queue to appear before the government-appointed mediators.

The motion was defeated after a division.