MEDIATION ACT (preamble—mediationact)

MEDIATION

CHAPTER 474

MEDIATION 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.

21st December, 2004

28th September, 2020 *

ACT XVI of 2004, as amended by Act IX of 2010 , VIII of 2017 and XXIV

of 2021.

PART I

Preliminary

The short title of this Act is the Mediation Act.

In this Act, unless the context otherwise requires -

"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;

"international mediation" shall include cross-border disputes of a

civil and commercial nature except as regards rights and

obligations which are not at the parties’ disposal under the relevant

applicable law, and other disputes which national legislation may

provide from time to time. It shall not extend, in particular, to

revenue, customs or administrative matters or to the liability of the

State for acts and omissions in the exercise of State authority (acta

iure imperii);

"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;

*See Legal Notice 362 of 2020.

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"mediator" means a neutral, qualified and impartial individual

who conducts a mediation;

"Member State" means any one of the Member States of the

European Union with the exception of Denmark;

"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 Act.

(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 refer, or be referred to, in order to resolve their dispute

through the assistance of a mediator.

The functions of the Centre shall be

(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

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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.

(1) There shall be a Board which shall be responsible for

the policy and general administration of the affairs and business of

the Centre.

(2) The Board shall not act unless a quorum consisting of not

less than three members is present.

(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 reappointment.

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).

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(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.

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 article

11(2).

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

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

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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.

(3) The Centre shall be exempted from any liability for the

payment of income tax and duty on documents under any law for

the time being in force.

(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)

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, subjec t to such directives a s the Minister ma y, 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 subarticle (4), any direction given by the Minister

a s a f o r e sa i d m a y o r d e r t h e t r a n s f e r t o G o v e r n m e n t , o r t h e

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

parties -

(a) voluntarily; or

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

adjudicating authority; or

(c) by law.

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(1) A cross-border dispute shall be one in which at least

one of the parties is domiciled or habitually resident in Malta and

the other party is domiciled or habitually resident in another

Member State on the date on which

(a) the parties agree to use mediation after the dispute has

arisen;

(b) mediation is ordered by the court;

(c) an obligation to use mediation arises under national

law; or

(d) for the purposes of article 17(b) a decree or order by a

court or other adjudicating authority is made to the

parties.

(2) Notwithstanding the provisions of subarticle (1), for the

purposes of confidentiality and limitation and prescription periods,

a cross-border dispute shall also be one in which judicial

proceedings or arbitration following mediation between the parties

are initiated in Malta or another Member State other than the

Member State in which the parties were domiciled or habitually

resident on the date referred in subarticle (1)(a), (b) or (c).

(3) For the purposes of sub-articles (1) and (2), domicile shall be

determined, amongst other provisions, in accordance with Articles 59

and 60 of Council Regulation (EC) 44/2001 and Articles 61, 62 and 63

of Council Regulation 1215/2012 on jurisdiction and the recognition

and enforcement of judgments in civil and commercial matters.

17B.(1)(a)The parties, or one of them with the explicit consent

of the other, may request that the content of a written

agreement resulting from mediation be made

enforceable subject to the provisions of the Code of

Organization and Civil Procedure.

(b) The content of such an agreement shall be enforceable

unless, in the case in question, the content of that

agreement is contrary to national law.

(2) The content of the agreement may be made enforceable by a

court or other competent authority in a judgment or decision or in

an authentic instrument in accordance with the law of the Member

State where the request is made.

(3) Nothing in this article shall affect the rules applicable to the

recognition and enforcement in another Member State of an

agreement made enforceable in accordance with subarticle (1).

Nothing in this Act shall restrict the mediator and the parties

from holding oral hearings of the mediation through video conference

or other distance communication technology if the technical means are

available, and if the parties and the mediator so agree. All discourse

made by way of such distance communication technology shall remain

confidential in accordance with the provisions of article 27.

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

the court or other adjudicating authority to stay proceedings while

the parties attempt at settling the dispute before a mediator.

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(2)

The adjudicatory body shall -

(a) on a request made under subarticle (1); or

(b) on its own initiative,

and where it considers it appropriate that the dispute may be

r e s o l v e d t h r o u g h t h e a s s i s t a n c e o f a m e d i a t o r, d i r e c t t h a t

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 article, 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 article 5(e), 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, shall 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.

(3) If a mediator declines a request he shall notify the registrar

accordingly within fifteen days from the date of the request.

(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)(a) after accepting a mediation, the mediator shall

disclose it to the parties as quickly as practicable.

(3) After the disclosure of any fact under subarticles (1) or (2),

a mediator shall decline to mediate unless all the parties give him

their express consent to proceed with the mediation.

(4) Where a mediator deems that there is a conflict of interest

giving rise to the slightest reasonable doubt as to the integrity of

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the process, the mediator shall decline to proceed regardless of the

consent of the parties to the contrary.

(5) If a mediator declines to mediate, a new or substitute

mediator shall be appointed or chosen pursuant to the procedure

provided for in article 20.

(1) A mediator may be challenged by any mediation party

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

h i m o n ly f o r r e a s o n s o f wh i c h h e b e c o m e s aw a r e a f te r t he

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.

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

send notice of his challenge within fifteen days after the

appointment of the challenged mediator has been notified to such

party, or within fifteen days after the circumstances mentioned in

articles 21 or 22(2) 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 a mediator in substitution of the challenged

mediator.

In the event of the death or resignation of a mediator

during the course of the mediation process, a substitute mediator

shall be appointed or chosen pursuant to the procedure provided for

in article 20.

A mediation party may, during mediation proceedings, be

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

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

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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

Provided that disclosure of the content of the agreement

resulting from mediation shall be permitted -

(a) where this is necessary for overriding considerations

of public policy of the Member State concerned, in

particular when required to ensure the protection of

the best interests of children or to prevent harm to the

physical or psychological integrity of a person; or

(b) where such disclosure is necessary in order to

implement or enforce that agreement.

(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), 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 subarticle (3) to a Court or adjudicatory body as

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

(1) The parties who choose mediation in an attempt to

settle a dispute shall not subsequently be prevented from initiating

judicial proceedings or arbitration in relation to that dispute by the

expiry of limitation or prescription periods during the mediation

process and the periods of limitation and prescription shall be

suspended during the mediation process.

(2) The provisions of subarticle (1) shall be without prejudice

to provisions on limitation or prescription periods in international

agreements to which Malta and the other Member State concerned

may be party.

A mediation ends when any one of the following

conditions is satisfied

(a) the parties to the mediation execute a written

agreement that resolves the dispute in whole or in part;

(b) the mediator communicates a written notification

which is signed by him to the parties stating that the

mediation is terminated or words to that effect;

(c) if, in the opinion of the mediator, or of any of the

parties, the parties cannot arrive at a solution to their

dispute;

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

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mediation process, and notifies the other parties and

the mediator of his intention; and

(e) if the period of one hundred and twenty days have

elapsed from the registration of the compulsory

mediation, or if the conditions as stipulated under

article 34(7) have been satisfied, then such compulsory

mediation shall be terminated ipso jure.

(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

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 the parties agree otherwise, be Maltese.

The Centre shall determine fees and costs in accordance

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

article 15(2).

(1) Mediation shall be compulsory before such Courts,

Tribunals or Boards, or in respect of litigation of a particular

nature, as the Minister may order and prescribe in the Gazette in

accordance to article 17A(1)(c).

(2) The Minister may make regulations to implement and to

give better effect to the provisions of this Act and may, without

prejudice to the generality of the foregoing -

(a) make such amendments, alterations, deletions, repeals,

corrections, additions, changes and modifications to

any primary law or subsidiary law for the purpose of

bringing such primary law or subsidiary law in

conformity with the provisions of this Act; and

(b) establish the date of entry into force of the

amendments,

alterations,

deletions,

repeals,

corrections, additions, changes and modifications

referred to in paragraph (a) with regard to any Court,

Tribunal or Board referred to in sub-article (1) that the

Minister may by regulations specify.

The Minister may from time to time make regulations

providing for or allowing -

(a) the making of mediation letters by means of electronic

equipment;

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(b) the transmission and service by means of electronic

equipment;

(c) the fees that may be charged in connection with the use

of such electronic means,

and for such other matters incidental or consequential thereto.