Contributed by Kenny Lai and Janet Chai, with photo by Daniel Soon
Kuala Lumpur, 30 July 2010, Friday: Dato’ N. Chandran started off the afternoon session, which was moderated by Pn. Hendon Mohamed, with a brief history on mediation and followed it up with an explanation on the role of a mediator.
“In death avoid hell; in life avoid law courts” was what the learned speaker first said when he went on to explain the role of a mediator. A mediator does not decide disputes between parties but serves only to facilitate and offer suggestions to allow the disputing parties to come to a common ground.
Dato’ N. Chandran highlighted the support and encouragement of the Malaysian Bar in parties bringing their disputes to mediation as can be seen from the setting up of the Malaysian Mediation Centre, which provides a 40 hour training session on to qualify as a mediator attached to the Malaysian Mediation centre.
“In Death Avoid Hell, In Life Avoid Law Courts”
Kuala Lumpur, 30 July 2010, Friday: Dato’ N. Chandran started off the afternoon session, which was moderated by Pn. Hendon Mohamed, with a brief history on mediation and followed it up with an explanation on the role of a mediator.
“In death avoid hell; in life avoid law courts” was what the learned speaker first said when he went on to explain the role of a mediator. A mediator does not decide disputes between parties but serves only to facilitate and offer suggestions to allow the disputing parties to come to a common ground.
Dato’ N. Chandran highlighted the support and encouragement of the Malaysian Bar in parties bringing their disputes to mediation as can be seen from the setting up of the Malaysian Mediation Centre, which provides a 40 hour training session on to qualify as a mediator attached to the Malaysian Mediation centre.
On the relation between mediation and the courts, Dato’ N. Chandran was quick in saying that mediation is a form of alternative dispute resolution in which the decision to resort to the same rests entirely on parties.
He highlighted that there are 2 different types of court mediations – court assisted mediations, whereby the court assists by directing parties with a dispute to a third party mediator, and court annexed mediation, whereby a judge takes an active part in the mediating process. Dato’ N. Chandran opined that the current stance taken by the judiciary, in particular when the sitting judge assumes the role of a mediator i.e. court annexed mediation, is not appropriate.
Ms. Gunavathi Subramaniam from the law firm Rosley Zechariah and a qualified mediator attached to the Malaysian Mediation Centre said that the concept of mediation is both old and new. Old as the concept of mediation was in very early days practiced by our ancestors via their elders and penghulus.
Gunavathi explained that there are 3 different styles of mediation. The evaluative mediation modeled on settlement conferences conducted by Judges, which she highlighted is suitable for accident matters; the transformative mediation in which the parties themselves are the ones who decide the outcome, suitable for cases where the disputing parties’ primary concern is future party relationship – typically used in family disputes; and finally the facilitative mediation whereby it is completely voluntary, flexible and informal – with a third party mediator acting as the facilitator to resolve the dispute – the Malaysian model.
On the current role of the judiciary and mediation, Gunavathi stated that although she believes that judges can be mediators, they must have a change of mindset and should in fact be first trained in mediation.
Acknowledging that mediation can be integrated as part of the judicial system, Gunavathi also cautioned that training and accreditation must be regulated and the principles of party autonomy and confidentiality must be remembered.
The final speaker for the session, the Honorable Mr. Justice Dato’ David Wong informed that in East Malaysia, the concept of mediation was introduced into the judicial process since 2007 to expedite the process of disposal of cases.
Noting the results of mediation, the East Malaysian judiciary has begun to train its judges and judicial officers in mediation skills. Dialogues with the business community have also been organized and held with the aim of raising the awareness of the community in mediation.
Justice David Wong also highlighted the amount of judicial time saved as a result of mediation – 3.38 years of hearing days/judicial time at its current success rate of 44%.
Justice David Wong also opined that “not all Judges can be mediators unless he has a passion for it”, and that “a judicial settlement is not mediation”.
The session concluded with Justice David Wong promoting Kota Kinabalu as a much desired destination for tourists with having the “best mountain”, “best resorts”, “best islands” and “best mediator”.
He highlighted that there are 2 different types of court mediations – court assisted mediations, whereby the court assists by directing parties with a dispute to a third party mediator, and court annexed mediation, whereby a judge takes an active part in the mediating process. Dato’ N. Chandran opined that the current stance taken by the judiciary, in particular when the sitting judge assumes the role of a mediator i.e. court annexed mediation, is not appropriate.
Ms. Gunavathi Subramaniam from the law firm Rosley Zechariah and a qualified mediator attached to the Malaysian Mediation Centre said that the concept of mediation is both old and new. Old as the concept of mediation was in very early days practiced by our ancestors via their elders and penghulus.
Gunavathi explained that there are 3 different styles of mediation. The evaluative mediation modeled on settlement conferences conducted by Judges, which she highlighted is suitable for accident matters; the transformative mediation in which the parties themselves are the ones who decide the outcome, suitable for cases where the disputing parties’ primary concern is future party relationship – typically used in family disputes; and finally the facilitative mediation whereby it is completely voluntary, flexible and informal – with a third party mediator acting as the facilitator to resolve the dispute – the Malaysian model.
On the current role of the judiciary and mediation, Gunavathi stated that although she believes that judges can be mediators, they must have a change of mindset and should in fact be first trained in mediation.
Acknowledging that mediation can be integrated as part of the judicial system, Gunavathi also cautioned that training and accreditation must be regulated and the principles of party autonomy and confidentiality must be remembered.
The final speaker for the session, the Honorable Mr. Justice Dato’ David Wong informed that in East Malaysia, the concept of mediation was introduced into the judicial process since 2007 to expedite the process of disposal of cases.
Noting the results of mediation, the East Malaysian judiciary has begun to train its judges and judicial officers in mediation skills. Dialogues with the business community have also been organized and held with the aim of raising the awareness of the community in mediation.
Justice David Wong also highlighted the amount of judicial time saved as a result of mediation – 3.38 years of hearing days/judicial time at its current success rate of 44%.
Justice David Wong also opined that “not all Judges can be mediators unless he has a passion for it”, and that “a judicial settlement is not mediation”.
The session concluded with Justice David Wong promoting Kota Kinabalu as a much desired destination for tourists with having the “best mountain”, “best resorts”, “best islands” and “best mediator”.