The Malaysian Bar’s International Malaysia Law Conference (“IMLC”) 2026 took place from 27 to 30 Oct 2026 at MITEC, Kuala Lumpur.
By Aimi Zaman, Zaman & Associates and Agesh K Jeyaratnam, Adnan Sundra & Low
The session titled “Has the Time Come for Mandatory Mediation in Disputes?” was moderated by Murshidah Mustafa, Vice-President of the Malaysian Bar and Partner of Fariz Halim & Co, who framed the discussion around designing a mediation system that is accessible, effective and fair without compromising the voluntary nature of settlement.
The first speaker was the Honourable Justice Dato’ Lim Chong Fong, Judge of the Court of Appeal of Malaysia. He first distinguished between pre-action mediation (conducted before a dispute enters the legal system) and court-annexed mediation (conducted after an action is filed). He explained the Judiciary’s decision to intensify the use of mediation, culminating with the Chief Justice’s Practice Direction No 1 of 2026. The Practice Direction maintains three modes of court-annexed mediation, namely, judge-led mediation, institutional mediation (through bodies such as the Malaysian International Mediation Centre, The Advocates Association of Sarawak and Sabah Law Society) and ad hoc party-agreed mediation.
The second speaker was Tan Sri Nallini Pathmanathan, former Judge of the Federal Court of Malaysia, Chairperson of the Malaysian Media Council and a Judge of the Qatar International Court and Dispute Resolution Centre. She first explained that mediation is not foreign to the region but rooted in its own traditions namely muafakat (consensus) and musyawarah (deliberation). She explained that the time for mandatory mediation has come, but that it should be calibrated through: (i) a presumption of mediation in defined categories, beginning with high-volume, lower-value and relationship-sensitive matters; (ii) a proportionate costs sanction for unreasonable refusal, confined to costs, with the court judging the refusal and not the merits; (iii) protection of the trial timetable to ensure that mediation does not delay the hearing; (iv) separation of the mediator and trial judge functions; and (v) continuing measurement, review and consultation. She also emphasised that mediation is an important avenue for the survival of the Bar, provided lawyers are properly trained and fairly remunerated for the work.
The third speaker was Datuk S Nantha Balan, former Judge of the Court of Appeal of Malaysia and Consultant at Adnan Sundra & Low. He recounted developing his own judge-led mediation practice before any mediation framework existed, often sitting late into the evening to resolve cases. He was firmly against any evaluative approach and noted that a mediator must understand the underlying problem and nudge the parties towards a realistic, win-win resolution without ever ruling on who is right or wrong. On this strict no-merits basis, he considered it acceptable for a judge to mediate his own cases (with a “buddy system” available where parties preferred another judge). He added that mediation is suitable for almost all matters, save for government or constitutional issues, and could even include cases involving allegations of fraud or dishonesty.
The fourth speaker was Andrew Butler KC, a barrister at Tanfield Chambers in London. He traced the English position in respect of mediation from the Civil Procedure Rules 1998, which first allowed a refusal to engage in alternative dispute resolution to affect a costs order, through to Halsey v Milton Keynes General NHS Trust; Steel v Joy and another [2004] EWCA Civ 576, where the Court of Appeal of England and Wales held that ordering unwilling parties to mediate would be an unacceptable obstruction of the right of access to the court. He then explained that, in Churchill v Merthyr Tydfil County Borough Council (Law Society and others intervening) [2023] EWCA Civ 1416, the Court of Appeal of England and Wales held that the relevant passage in Halsey was obiter and that the court does have jurisdiction to stay proceedings and order mediation, provided the order is proportionate and compatible with the right to a fair trial. He added that, in the Irish decision of Burke v O’Connell [2026] IEHC 314, the court ordered mediation on the view that its role is to make dispute resolution better for litigants, and the claim was settled two months later. He then drew two contrasts with Malaysia — in the United Kingdom, the court will stay proceedings until the mediation route has been tried, and it would be considered very unusual for the trial judge or appellate panel to mediate a case before them. He also sounded a note of caution, observing that most English mediation is private and can be expensive, and that a compulsion to mediate can bear unfairly on litigants of unequal resources.
In response to the main challenges to implementing mandatory mediation, Justice Dato’ Lim Chong Fong identified cost as the biggest constraint. The panel agreed that reform should be progressive and properly prepared. A recurring theme was the role of the Bar. Tan Sri Nallini argued that the courts should not be overburdened and that it is time for the Bar to embrace mediation, which it will only do if lawyers are trained as mediation counsel and properly remunerated. She noted that a challenge in larger matters is often the lawyers’ own reluctance, as litigation fees are higher. Datuk Nantha Balan suggested that the Bar could initiate mandatory pre-action mediation but noted that the Courts of Judicature Act 1964 may need to be amended, rather than continually amending the Rules of Court 2012.
In concluding the session, the panel responded to a thought-provoking question on how lawyers should prepare themselves and their clients. The panel observed that lawyers should approach mediation without being territorial, be willing to think laterally and outside the confines of the dispute, and be prepared to press their own clients towards settlement rather than simply attacking the other side’s case.
*This article reports on Breakout Session 11, Stream B: Legal Profession and Professional Practice.