ACT No. XVI of 2004 AN ACT to encourage and facilitate the settlement of disputes in Malta through mediation, to establish a Malta Mediation Centre as a centre for domestic and international mediation, and to make provisions regulating the conduct of the mediation process.

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

21st December, 2004

ACT No. XVI of 2004

AN ACT to encourage and facilitate the settlement of disputes in

Malta through mediation, to establish a Malta Mediation Centre as a

centre for domestic and international mediation, and to make provisions

regulating the conduct of the mediation process.

PART I

Preliminary

The short title of this Act is the Mediation Act, 2004.

Short title.

In this Act, unless the context otherwise requires -

Definitions.

“the Board” means the Board of Governors of the Centre

established by article 6<

“the Centre” means the Malta Mediation Centre established

by article 3<

“chairman” means the chairman of the Board<

“domestic mediation” means any mediation of a civil, family,

social, commercial and industrial nature<

“financial period” means a period of five years commencing

on the first January of one year and ending on the thirty-first day

of December of the fifth year thereafter>

Provided that the first financial period of the Centre shall be

the period commencing with the coming into force of Part III of this

Act and ending on the thirty-first day of December of the year next

following that on which the said Part III shall have come into force<

“mediation” means a process in which a mediator facilitates

negotiations between parties to assist them in reaching a voluntary

agreement regarding their dispute<

“mediation party” means a person that participates in a

mediation and whose agreement is necessary to resolve the dispute<

“mediator” means a neutral, qualified and impartial individual

who conducts a mediation<

“the Minister” means the Minister responsible for justice<

“prescribed” means prescribed by regulations made under this

Act<

“proceedings” means a judicial, administrative, arbitral or

other adjudicatory process<

“registrar” means the registrar of the Board as defined under

article 13.

PART II

Establishment and Functions of the Centre

(1) There shall be a Centre to be known as the Malta

Mediation Centre, whose purpose and functions are assigned by this

(2) The Centre shall be a body corporate having distinct

legal personality and may, in pursuance of its functions>

(a) enter into contracts, acquire, hold or dispose of real and

personal property<

(b) sue and be sued< and

(c) do all such things as are incidental or conducive to the

fulfilment of its functions.

The Centre shall provide a forum where mediation parties may Purpose

Centre.

refer, or be referred to, in order to resolve their dispute through the

assistance of a mediator.

The functions of the Centre shall be>

Functions of the

Centre.

(a) to promote domestic and international mediation as a

means of settling disputes<

(b) to provide for the conduct of domestic and international

mediation<

(c) to provide the necessary facilities for the conduct of

mediation<

(d) to set up the criteria for the appointment of mediators<

(e) to draw up a list of mediators to assist in domestic and

international mediation<

(f)

to approve the nominated mediators<

(g) to keep registers and records of the nominated mediators<

(h) to remove mediators from the list in the circumstances

listed under article 11<

(i) to provide its own procedure for the handling of disputes<

(j) to provide a code of ethics to be followed by mediators

during mediation proceedings<

(k) to determine the tariff of fees to be charged for the

services provided by the Centre<

(l) to facilitate better access to mediation procedure through

the publication of information, guidelines and related

documentation<

(m) to draw up and publish an annual report on the progress

of the Centre<

(n) to advise or make recommendations to the Minister on

any matter which, in the opinion of the Board, is sought by the

Minister<

(o) to perform such other functions which are assigned to

the Centre by this Act or by any other law<

(p) to perform any other function supplementary or ancillary

to the above.

There shall be a Board which shall be responsible for the policy

and general administration of the affairs and business of the Centre.

(1) The Board shall consist of not less than three and not

more than five members.

(2) The Board shall be appointed by the Minister.

(3) The Board shall have as its members>

(a) a chairman who shall be an advocate who has practised

law for the previous twelve years<

(b) a deputy chairman who shall also be an advocate who

has practised for the previous twelve years and who shall preside

during the chairman’s absence, until a new chairman has been

appointed, or on death of the chairman<

(c) members who shall have knowledge and experience in

dispute resolution, commercial matters, or who, in the opinion of

the Minister, are qualified to perform the duties of a member.

(1) The members of the Board shall hold office for a period

of four years.

(2)

A member of the Board may be eligible for re-

appointment.

A member of the Board may resign his office by letter signed

by him and delivered to the Minister.

A member of the Board may hold such office concurrently

with any other office.

(1) A person shall not be eligible to hold office, or a member

shall be removed from office, for any of the reasons in subarticle (2)

hereof.

(2) A member shall be disqualified if>

(a)

he is legally incapacitated<

(b) he has been adjudged bankrupt<

(c) he has been convicted with a criminal offence affecting

public trust, theft or fraud<

(d) he has any financial or other interest in any enterprise

or activity which is likely to affect the discharge of his functions

as a member of the Board< or

(e) on the recommendation by the Commission for the

Administration of Justice established under article 101A of the

Constitution of Malta, given to the Minister>

(i) he is unfit to continue in office as a member, or

(ii) he has become incapable of properly performing

his duties as a member of the Board.

Vacancy of office.

The office of a member shall become vacant if>

(a)

the member dies<

(b) the member’s term of office expires<

(c)

the member resigns as specified under article 9< or

(d) the member is disqualified as specified under subarticle

(2) of article 11.

(1) The Centre shall have a registrar, who shall also be the Registrar.

secretary of the Board.

(2) The registrar shall be appointed by the Board under such

terms and conditions as the Board may deem appropriate.

(3) The legal representation of the Centre shall be vested in

the registrar, or in any other person so authorised by the Board.

(4) The registrar shall perform such functions as may be

delegated to him in writing by the Board from time to time,

including the duty to administer oaths of office that may be required

to be taken by the mediators, or by any other person involved in

the mediation proceedings.

PART III

Finances

(1) The Centre shall cause to be prepared in every financial

period, and shall not later than six months before the end of each financial

period adopt, estimates of the income and expenditure of the Centre for

the next following financial period.

(2) The estimates shall be made out in the prescribed form,

and shall contain such information and comparisons with previous

financial periods as the Minister may prescribe.

(3) The estimates shall take into account the government

contributions, if any, to the revenues of the Centre as the Minister may

indicate to the Centre that he will recommend to the House of

Representatives for the financial year in consideration, in accordance

with article 16.

(4) A copy of the estimates of the Centre shall, upon their

adoption by the Centre, be sent by the Board to the Minister.

(1) The revenues of the Centre shall consist of the fees

charged for the services provided by it under this Act or of any other

government contribution made in accordance with article 16.

(2) The Minister may, after consultation with the Centre,

prescribe the fees to be charged by the Centre for any services, facilities

or any other matter provided by it in accordance with this Act or in

pursuance of the exercise of its functions under this Act.

(1) The Minister may, after consultation with the Centre,

any other person or authority, and with the concurrence of the Minister

responsible for finance, indicate in writing to the Centre the amount of

government contribution to be made to the Centre, and such amount is

to be included in its estimates for the next financial period.

(2) The indication made by the Minister under subarticle

(1) hereof shall be attached to the estimates of the Centre to be forwarded

to the Minister.

(3) Upon the approval of the estimates with or without

amendments as provided in this Act, the sum approved in the estimates

as the government contribution shall be paid to the Centre out of the

Consolidated Fund without any further authority other than this Act.

(4) Any excess of revenue over the expenditure of the Centre

shall, subject to such directives as the Minister may, after consultation

with the Minister responsible for finance, from time to time give, be

applied by the Centre to the formation of reserve funds to be used for

the purposes of the Centre.

(5) Without prejudice to the generality of the powers given

to the Minister by sub-article (5) hereof, any direction given by the

Minister as aforesaid may order the transfer to Government, or the

application in such manner as may be specified in the direction, of any

of such revenues.

PART IV

Mediation process

Mediation proceedings may be resorted to by the mediation Recourse to

mediation

parties>

proceedings.

(a)

voluntarily< or

(b) following a decree or order by a court or other

adjudicating authority< or

(c)

by law.

(1) Parties to any proceeding may, by a joint note, request An adjudicatory

body to stay

the court or other adjudicating authority to stay proceedings while the proceedings.

parties attempt at settling the dispute before a mediator.

(2) The adjudicatory body shall –

(a)

on a request made under sub-article (1) hereof< or

(b) on its own initiative, and where it considers it appropriate

that the dispute may be resolved through the assistance of a

mediator, direct that proceedings be stayed for the duration of the

process.

(3) The adjudicatory body may establish the time of the

adjudication period and extend such period until such date, or for such

specified periods, as it considers appropriate.

(4) Where the adjudicatory body stays the proceedings under

this rule, the parties shall inform the adjudicatory body if a settlement

is reached.

(5) If the parties do not inform the adjudicatory body by

the end of the period of stay that a settlement has been reached, the

adjudicatory body shall give such directions as to the management of

the case as it considers appropriate.

(1) In accordance with the provisions of sub-paragraph (e)

of article 5, the Centre shall draw up a list of mediators to assist in

domestic and international mediation.

(2) The list shall be composed of persons who in the opinion

of the Centre are qualified to carry out the duties and functions of a

mediator in a particular field.

(1) If the parties do not agree on a mutually acceptable

mediator from the list of mediators referred to in article 19, the parties,

or any one of them, may apply to the registrar for the appointment of a

mediator, and the registrar shall then suggest to the Board the name of

the mediator who is next on the list.

(2) A mediator may decline a request without giving any

reason.

(1)

Prior to accepting a mediation, a mediator shall –

(a) determine, as is reasonably possible, whether there are

any known facts that a reasonable individual would consider likely

to affect his impartiality as a mediator<

(b) disclose any such known facts to the mediation parties

as soon as is possible.

(2) If a mediator becomes aware of any fact described under

subarticle (1)(b) after accepting a mediation, the mediator shall disclose

it to the parties at his earliest convenience and either party shall have a

right to refuse to appear before such mediator, in which case a new

mediator shall be appointed and there shall be followed the procedure

provided for under article 20.

(1) Any mediator may be challenged if circumstances exist

that give rise to justifiable doubt as to the mediator’s impartiality or

independence.

(2) A mediation party may challenge the mediator appointed

by him only for reasons of which he becomes aware after the

appointment has been made.

(3) If the other party does not agree on the challenge and

the challenged mediator does not withdraw, the decision on the challenge

shall be made by the chairman and his decision shall be final and binding.

(4) When the chairman sustains the challenge, the registrar

shall appoint a substitute mediator.

(1) A party who intends to challenge a mediator, shall send Notification of

notice of his challenge within fifteen days after the appointment of the challenge.

challenged mediator has been notified to such party, or within fifteen

days after the circumstances mentioned in article 21 have become known

to such party.

(2) The challenge shall be notified to the registrar, to the

other party and to the mediator who is challenged.

(3) The challenge shall be in writing and there shall be stated

the reasons of the challenge.

(4) The procedure provided for in article 20 shall be

followed for the appointment of the challenged mediator.

In the event of the death or resignation of a mediator during Replacement of

mediator.

the course of the mediation process, a substitute mediator shall be

appointed or chosen pursuant to the procedure provided for in article

21.

A mediation party may, during mediation proceedings, be Participation in

mediation.

assisted by an advocate, legal procurator or any individual designated

by him before or during the mediation>

Provided that when recourse to mediation follows a decree from

a superior court of civil or commercial jurisdiction, the mediation party

may be assisted by an advocate.

(1) In the conduct of the mediation process, the mediator Conduct

mediation.

shall follow the code of ethics as provided by the Centre and shall assist

the mediation parties to reach a resolution that is timely, fair and cost-

effective.

(2) The mediator shall hold the trust of the parties at all

time of the mediation process.

(3) The mediator may shorten or extend the mediation

process by agreement.

(4) The proceedings may be held in public should both

parties agree.

(1) No evidence of anything said or any admission made

for the purpose of, in the course of, or pursuant to, mediation is

admissible in any proceedings, and disclosure of such evidence shall

not and may not be compelled in any proceedings.

(2) All communications or settlement discussions by and

between participants in the course of mediation shall remain confidential.

(3) Except as required under subarticle (4) hereof, a mediator

may not submit to any court or adjudicatory body any evidence, report,

assessment, evaluation, or finding of any kind concerning a mediation

conducted by him other than a report that is mandated by the Court or

adjudicatory body, and which only states whether an agreement was

reached.

(4) A mediator may only divulge such information as

established under sub-article (3) to a Court or adjudicatory body as

long as all parties to the mediation expressly agree in writing.

A mediation ends when either one of the following conditions

is satisfied>-

(a) the mediation parties execute a written agreement that

fully resolves the dispute<

(b) the mediator provides the mediation parties with a

writing signed by the mediator that states that the mediation is

terminated, or words to that effect<

(c) if, in the opinion of the mediator, the parties cannot arrive

at a solution to their dispute<

(d) if one of the parties elects not to continue with the

mediation process.

(1) Subject to article 28, at the termination of a

mediation all documentation relating to the mediation process

shall be retained by the mediator and may only be destroyed after

two years therefrom.

(2) The Centre may, however, include information

concerning the mediation in any aggregate statistical data that is

published from time to time concerning its activities, provided

that such information does not reveal the identity of the parties

or does not enable the particular circumstances of the dispute to

be identified.

PART V

Miscellaneous

The Minister may from time to time make regulations Power to make

regulations.

generally for the carrying out of the provisions of this Act and for such

matters as may be authorised by the Act to be prescribed.

The language to be used in the mediation process shall, unless Language.

the parties agree otherwise, be Maltese.

The Centre shall determine fees and costs in accordance with Tariff of fees.

such tariff of fees as shall be prescribed by the Minister under article

15(2).

Part VI

Amendments to the Code of Organization and Civil Procedure

The Code of Organization and Civil Procedure, hereinafter Amendment of the

Code of

referred to as “the Code”, shall be amended as follows>

Organization

and Civil Procedure,

(a)

in article 173 of the Code –

(i) in subarticle (1), immediately after the words “or

to expedite” there shall be added the words “or facilitate or”<

and

(ii) in subarticle (2) thereof, immediately after

paragraph (b) there shall be added the following new

paragraph>

“(c) either on its own motion or on a note filed

by any party to the proceedings, direct that proceedings

be stayed for such period as it considers appropriate,

and refer the parties to a mediator in accordance with

the Mediation Act.”< and

(b) in article 223 of the Code, immediately after subarticle

(4) thereof there shall be added the following new subarticle>

“(5) Subject to subarticle (2)(c) of article 173, when a

party without just cause refuses or fails to participate before

or collaborate with a mediator, the Court may award double

costs in the other party’s favour due to such refusal or failure.”.

Passed by the House of Representatives at Sitting No. 215 of the 17th

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives