MCT5012 The Law of Mediation Adriano Spiteri

1) An Introduction to Mediation

According to Professor Carrie Menkel-Meadow, ‘mediation is a process in which an

impartial third-party, acts as a catalyst to help others constructively address and

perhaps resolve a dispute, plan a transaction, or define the contours of a relationship.’1

Mediation differs from negotiation in the that third party must be impartial. This

explains the many terms that are used to refer to mediators and which include

translators, watchdogs, referees and educators.

Although mediation is a form of dispute resolution, in the civil sphere, the aim of it is

settlement whereas in the criminal sphere the aim is to heal and not to find who is

right. As Crum puts is ‘resolving conflict is rarely about who is right, it is about

acknowledgment and appreciation of differences’2 and ‘conflict is not a contest.’

Mediation was introduced in Maltese law via Act XVI of 2004 (Chapter 474). It

describes mediation as a ‘process in which a mediator facilitates negotiations between

parties to assist them in reaching a voluntary agreement regarding their dispute.’3

It was also introduced in family law by means of Legal Notice 397 of 2003 but other

references can be found in the Code of Civil Procedure and the Restorative Justice Act,

XXI of 2011 (Chapter 516). There is also an EU directive on mediation on certain

aspects of mediation in civil and commercial matters.4

Mediation could be voluntary and mandatory, judicial 5 and extra-judicial 6 but it

excludes conciliation.

1
Carrie J. Menkel-Meadow, Dispute Resolution. Beyond the Adversarial Model (Third edn, Aspen, New York)
185
2
Thomas Crum, Books › Business & Money › Small Business & Entrepreneurship The Magic of Conflict: Turning
a Life of Work into a Work of Art (Secondedn, Touchstone, New York) 247
3
Page 1
4
Directive 2008/52/EC, 21 May 2008
5
Malta and Slovenia
6
UK

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MCT5012 The Law of Mediation Adriano Spiteri

Impartiality of the mediator is crucial since it is the factor that keeps the balance of

power without keeping sides. The Mediation Act in fact defines the term ‘mediator’ as

a ‘neutral, qualified and impartial individual who conducts a mediation.’7

2) The importance of power balancing in mediation

There are many forms of mediation although in Maltese law we normally focus on

three main ones: facilitative, evaluative and transformative. Before one delves into

the importance of power balancing in mediation, one must understand the different

forms since they all entail power balancing but in varying circumstances. In

facilitative mediation (the standard approach), the mediator structures the process

and helps parties find options for resolution. He seeks to allow the parties to have the

major influence instead of their own lawyers. He does so by looking at their needs and

their interests without delving into their rights. The process is termed ‘shuttle

diplomacy.’8 Perhaps this style is one that is used in many settings outside a lawsuit.

In evaluation mediation, which can be described as ‘offering objective opinions to

participants’ 9 , the parties meet in separate meetings and the mediator structures

process and influences the outcome. Modelled on settlement conferences held by

judges, this form of mediation makes recommendations, either formal or informal,

looks at the rights and finds basis on legal concepts of fairness. In transformative

mediation, which can be defined as ‘reaching resolution by correcting power

imbalances’10, the mediator helps parties to discuss issues and looks for a solution

7
Page 1
8
Zena Zumeta, 'Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation' (Article n.d.)
<https://www.mediate.com/articles/zumeta.cfm> accessed 20April2019
9
Nicole Levy, 'Comparing the 3 Major Styles of Mediation' (Article 2018)
<https://madivorcemediators.com/comparing-the-3-major-styles-of-mediation/> accessed 20April2019
10
ibid

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MCT5012 The Law of Mediation Adriano Spiteri

that might lead to change the parties’ understanding of the situation. ‘The values

mirror those of society with pro-peace techniques.’11 ‘The focus is on empowerment

and recognition.’ 12 The mediator cannot judge the parties, neither directly nor

indirectly, but is responsible to parties’ statements on past events, in contrast to the

other two main forms of mediation.

As can be seen above, the mediator must ensure the balance of power through

moderation, recommendation and by correcting imbalances. The effective exercise

of power rests on the legitimacy of the power holder exercising it. The mediator must

be a competent authority for effective and professional dispute resolution. It follows

that the mediator must have a clear understanding of the nature of conflict,

understand resolution methods and techniques and understand dynamics of

interpersonal conflict and negotiation which places him in a unique role to help

parties move on through conflict they find themselves in. It is on this basis that the

mediator has the right to act and use his powers in the mediation process.13

Power balancing in mediation basically refers to the goal and the practice of a

mediator14:

a) determining that there is a significant power differential between the

parties
b) feeling responsible to “even the table”, and
c) intervening in ways that bolster or offer greater support to the “weaker”
or “more disadvantaged” party

11
Robert A. Baruch Bush, Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict
(Revised edn, Jossey-Bass, San Francisco)
12
Hugo Prein, 'Empowerment and Recognition' (Article n.d.) <https://www.transformative-
mediation.com/training/page/view.php?id=6> accessed 20April2019
13
CEDR, 'The Second European Mediation Congress Balancing power in mediation' (Report 2005)
<https://www.cedr.com/congress2005/balancing_power_in_mediation.pdf> accessed 20April2019
14
Carol Bloom, 'Power Balancing in Mediation' (Article 2018) <http://www.carolbloom.com/blog/power-
balancing-in-mediation.html> accessed 20April2019

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MCT5012 The Law of Mediation Adriano Spiteri

While parties are encouraged to work through their conflict in a way that is fair,

neither of them being at a disadvantage, scholar and professional mediators have

often indicated that power imbalances exist in just about every relationship and these

are synonymous of the nature of the human beings and standing such as dynamics,

resources and disputant positions. Mediators are tasked with evening the balance of

power, a task which is not as easily achievable as it may sound.

When parties enter mediation, they are most often not sitting as equals. A large

corporation facing an individual complainant for instance or a wealthy party against

a non-wealthy one. Pfeffer defines power as ‘the ability of one social actor to overcome

resistance in achieving a desired objective or result’.15 Astor16 sets an example in his

finding that mediated agreements arising from a climate of intimidation or domestic

violence, the two parties which are most often unequal are likely to conclude an

agreement which is neither just nor equitable. Unless the sources of inequality are

identified, inequality cannot be tackled by the mediator who can influence the power

dynamic during mediation by encouraging respectful communication, by facilitating

equal talk time and by adopting an even-handed approach to the parties17 and this

could inadvertently exacerbate power imbalance through the imposition of

impartiality on an unlevel playing field.18 A poor party may for instance be less able

to gather and analyse information, may need to obtain compensation for damaged

15
Cited in Boris Kabanoff Paul Nesbit, 'Metamorphic Effects of Power as Reflected in Espoused Organisational
Values: Implications for Corporate Governance' [02 February 2011] 32 (1)
<https://onlinelibrary.wiley.com/doi/abs/10.1080/00050069708259619> accessed 20April2019
16
Ron A. Astor , 'Children's Moral Reasoning about Family and Peer Violence: The Role of Provocation and
Retribution ' [1994] 65 (4) <https://www.jstor.org/stable/1131304?origin=crossref&seq=1/subjects> accessed
20April2019
17
Dr Hilary Astor, Mediation and violence against women / paper prepared for the National Committee on
Violence Against Women (Library Australia, )
18
B Turner and R Saunders, ‘Mediating A Planning Scheme Amendment: A Case Study in the Co-Mediation of a
Multi-Party Planning Dispute’, (1995) 6 Australian Dispute Resolution Journal, 284-295

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MCT5012 The Law of Mediation Adriano Spiteri

immediately or may be forced to settle because he cannot afford the costs of litigation.

As can be clearly seen, the imbalance of power will make fair and evenhanded

negotiations impossible. An imbalance of power ‘may be obvious or subtle’. 19

Imbalance does not only relate to the parties themselves but might also extend to their

lawyers who might not always have the same level of exprience or skill. In view of this

the mediator has a duty to the process or to the parties to balance out the parties’

power during mediation so as to render the functional redress of unequal bargaining

power.

3) How to balance power without taking sides

Where there are power imbalances, be they substantive or process-oriented, and

where the mediator believes that he or she needs to take measures to ensure that the

process is fair, there are a number of steps a mediator can take. If the mediator does

not take any of these steps, the disputants or their lawyers may request that they be

taken.

Most important is to allow that party that requires assistance during mediation,

perhaps due to lack of power, the opportuity to communicate in an effective manner

and to make an informed decision with the aid of a social worker, a lawyer, a friend or

a relative. The disempowered person must be assisted in order to afford him proper

understanding through effective questioning and the provision of objective advice that

assist him.

When the imbalance sprouts from domestic violence or abuse, it is necessary for

mediation sessions to be held privately in order to ensure that there is no direct contact

19
Rebecca Jane Weinstein, Mediation in the workplace. A guide for practice, training and administration
(Greenwood publishing group, California)

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MCT5012 The Law of Mediation Adriano Spiteri

between the dominant and the vulnerable disputant. Yelling, threatening, name

calling, guilt instilling and the element of fear are some of the factors that render the

balance of power more important. When the session is joint, the mediator must strictly

enforce the rules of procedure and conduct such as when can one interrupt another,

the way of address, the length of interruption and the relevance of the statements.

Not all mediators believe that it is appropriate to act on power imbalance, even when

this is severe. They reason that if there is a threat or fear of violence, mediation should

terminate. Rober Angyal, Barrister and Senior Counsel in New South Wales, opines

that mediators have no obligation to correct power imbalances between parties. He

states ‘the mediator’s task can be seen as helping each party understand what power it

has and how and when it should use its power, and to understand what power the other

party has and how and when it might use it.’20 He distinguishes six types of party

power, namely financial, forensic, substantive, negotiative, moral and gender and

maintains that if the mediator has to correct imbalance of power, he must understand

where power lies in a mediation. This implies that he must have knowledge of the facts,

the relevant law and the parties’ interests/needs.

Confidentiality is one of the components of mediation in order to afford trust to the

process as well as for the purposes of integrity. Protection should be sought in certain

cases. Confidentiality affords trust to the weaker party to deliver his concerns. Article

27 of the Mediation Act details the requisites of confidentiality whereas the previous

Article emphasizes that the mediator shall hold the trust of the parties all the time of

the mediation process. Other components such as neutrality and impartiality are

crucial too since they guarantee the balance of power, hence that the mediator does

20
Robert Angyal, 'Do mediators have an obligation to correct power imbalances between parties? (No, and for
many reasons ...)' (Article 2016) <https://www.linkedin.com/pulse/do-mediators-have-obligation-correct-
power-imbalances-angyal-sc> accessed 20April2019

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MCT5012 The Law of Mediation Adriano Spiteri

not have any reason to favour one party over the other and that he is unbiased. Maltese

law asks for impartiality and neutrality, implying that it excludes evaluative mediation

since it requires the mediator to take a stand. Without neutrality and impartiality, it

would not be possible to tackle power imbalance without taking sides. The outcome is

that the stronger party may see the mediator, who must remain issue free, as ‘biased

and feel ganged up on by the mediator and the weaker party’.21 The mediator must

therefore ensure equity other than equality. Most often the stronger party does not

required the mediator’s help as a matter of fact. The mediator must restrict illegitimate

or patronizing behaviour to ensure that the stronger party does not take advantage and

terminate the session if any party lacks sufficient power to participate effectively.

Neutrality does not have a clear and unequivocal meaning although there are two

accepted synonyms that are discernible. They are neutrality as impartiality 22 and

neutrality as even-handedness.23 Hence, ‘mediators are said to be neutral as to content

and outcome, but not process.’24

4) Bringing a settlement about

How can a mediator bring a settlement which can be considered fair and equitable

without ensuring that the parties enjoy equal footing in terms of power and

impartiality? The Mediation Act therefore defines the mediator as a ‘neutral, qualified

and impartial individual who conducts a mediation’.

21
Norman R. Page, 'Dealing With Power Imbalance: Another Stab' (Article 2005) <Dealing With Power
Imbalance: Another Stab> accessed 20April2019
22
Astor, ‘Rethinking Neutrality’, above n 1; Astor and Chinkin, above n 2; Boulle, above n 2; Cobb and Rifkin,
‘Practice and Paradox’ above n 4; Field, ‘Neutrality and Power’
23
L Boulle, Mediation: Principles, Process, Practice (Butterworths, 2nd ed, 2005) 4
24
Cohen, Dattner and Luxenberg, above n 3; J M Haynes, ‘Mediation and Therapy: An Alternative
View’ (1992) 10(1) Mediation Quarterly 21; T F Marshall, ‘The Power of Mediation’ (1990) 8(6)

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MCT5012 The Law of Mediation Adriano Spiteri

The most important aspect of mediation is to bring the settlement about. To what

degree should a mediator correct power imbalance is a topic which raises many

questions. The mediator can always terminate the session or procedure if he fears that

there is an element of threat, fear or violence or some other grave aspect that renders

the prospect of settlement futile or, worse, disadvantageous to the vulnerable party.

This matter aside, the mediator must take cognizance of the parties’ position and

ensure that sessions respect certain principles dictated by law and supplemented by

both reason and established rationale. Failure of this would lead to grave

repercussions for the weaker or vulnerable party. Adequate diligence, professionalism,

experience/training and adherence to the principles of confidentiality, neutrality, and

impartiality render the process fair and impartial. The result would be an active

participation of parties followed by an amicable settlement, which is what mediation

seeks to achieve.

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MCT5012 The Law of Mediation Adriano Spiteri

Bibliography
Books

Allan J. Stitt, Mediation: a practical guide (First edn, Cavendish publishing, London)

L Boulle, Mediation: Principles, Process, Practice (Butterworths, 2nd ed, 2005) 4

Astor, ‘Rethinking Neutrality’, above n 1; Astor and Chinkin, above n 2; Boulle, above n 2; Cobb and Rifkin,
‘Practice and Paradox’ above n 4; Field, ‘Neutrality and Power’

Rebecca Jane Weinstein, Mediation in the workplace. A guide for practice, training and administration
(Greenwood publishing group, California)

Dr Hilary Astor, Mediation and violence against women / paper prepared for the National Committee on
Violence Against Women (Library Australia, )

Robert A. Baruch Bush, Joseph P. Folger, The Promise of Mediation: The Transformative Approach to Conflict
(Revised edn, Jossey-Bass, San Francisco)

Thomas Crum, Books › Business & Money › Small Business & Entrepreneurship The Magic of Conflict: Turning a
Life of Work into a Work of Art (Second edn, Touchstone, New York) 247
Carrie J. Menkel-Meadow, Dispute Resolution. Beyond the Adversarial Model (Third edn, Aspen, New York)
185

Journals

B Turner and R Saunders, ‘Mediating A Planning Scheme Amendment: A Case Study in the Co-Mediation of a
Multi-Party Planning Dispute’, (1995) 6 Australian Dispute Resolution Journal, 284-295

Cohen, Dattner and Luxenberg, above n 3; J M Haynes, ‘Mediation and Therapy: An Alternative
View’ (1992) 10(1) Mediation Quarterly 21; T F Marshall, ‘The Power of Mediation’ (1990) 8(6)

Online

Carolyn Manning, 'Power Imbalance in Mediation ' (Article 2002)

<http://www.dialmformediation.com.au/Power Imbalance in Mediation.pdf> accessed 20April2019

Susan Douglas, 'Neutrality in mediation ' (Article n.d.)

<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=2ahUKEwj7t
OyX797hAhWM6aQKHS34D5oQFjAEegQIAxAC&url=https%3A%2F%2Flr.law.qut.edu.au%2Farticle%2Fdownloa
d%2F88%2F83&usg=AOvVaw3g8FuXgT5BkJ_g1M1CRxwH> accessed 20April2019

Norman R. Page, 'Dealing With Power Imbalance: Another StabPower Imbalance in Mediation ' (Article 2005)
<https://www.mediate.com/articles/pageN2.cfm?nl=80> accessed 20April2019

Robert Angyal, 'Do mediators have an obligation to correct power imbalances between parties? (No, and for
many reasons ...)' (Article 2016) <https://www.linkedin.com/pulse/do-mediators-have-obligation-correct-
power-imbalances-angyal-sc> accessed 20April2019

10
MCT5012 The Law of Mediation Adriano Spiteri

Ron A. Astor , 'Children's Moral Reasoning about Family and Peer Violence: The Role of Provocation and
Retribution ' [1994] 65 (4) <https://www.jstor.org/stable/1131304?origin=crossref&seq=1/subjects> accessed
20April2019

in Boris Kabanoff Paul Nesbit, 'Metamorphic Effects of Power as Reflected in Espoused Organisational Values:
Implications for Corporate Governance' [02 February 2011] 32 (1)
<https://onlinelibrary.wiley.com/doi/abs/10.1080/00050069708259619> accessed 20April2019

Carol Bloom, 'Power Balancing in Mediation' (Article 2018) <http://www.carolbloom.com/blog/power-

balancing-in-mediation.html> accessed 20April2019

CEDR, 'The Second European Mediation Congress Balancing power in mediation' (Report 2005)
<https://www.cedr.com/congress2005/balancing_power_in_mediation.pdf> accessed 20April2019

Hugo Prein, 'Empowerment and Recognition' (Article n.d.) <https://www.transformative-

mediation.com/training/page/view.php?id=6> accessed 20April2019

Nicole Levy, 'Comparing the 3 Major Styles of Mediation' (Article 2018)

<https://madivorcemediators.com/comparing-the-3-major-styles-of-mediation/> accessed 20April2019

Zena Zumeta, 'Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation' (Article n.d.)
<https://www.mediate.com/articles/zumeta.cfm> accessed 20April2019

11