Court-Annexed Mediation Practice in Malaysia: What the Future Holds

• Autore: Choong Yeow Choy - Tie Fatt Hee - Christina Ooi Su Siang
• Carica: Professor of Law, Faculty of Law, University of Malaya (Malaysia) - Professor of Law, Faculty of Law, University of Malaya (Malaysia) - Advocate and solicitor, High Court of Malaya (Non-Practising), and doctoral candidate, Faculty of Law, University of Malaya (Malaysia)
• Pagine: 271-308

ARTICLES & ESSAYS

DOI 10.6092/issn.2531-6133/6751

UNIVERSITY OF BOLOGNA LAW REVIEW

ISSN 2531-6133

[VOL.1:2 2016]

This article is released under the terms of Creative Commons Attribution 4.0 International License

271

Court-Annexed Mediation Practice in Malaysia: What the Future Holds

CHOONG YEOW CHOY & TIE FATT HEE & CHRISTINA OOI SU SIANG†

TABLE OF CONTENTS: 1. Introduction; 2. Court-Annexed Mediation – The Motivations and

the Mechanism of the Programme; 3. Provisions on Court-Annexed Mediation; 4.

Practice Direction No. 5 of 2010 (Practice Direction on Mediation); 5. Rules for Court

Assisted Mediation; 6. The Mediation Act 2012; 7. Role of the Courts and Judiciary in

Court-Annexed Mediation; 8. Overcoming the Challenges; 9. What the Future Holds; 10.

Conclusion.

ABSTRACT: It is an indubitable fact that the use of mediation as a form of dispute

resolution has gained traction across the globe. More importantly, the practice of

mediation has also been transformed through the establishment of several techniques

for formalized mediation. This article will provide insights into one of these avenues

for formalised mediation, namely, court-annexed mediation practice in Malaysia. It

will first discuss the motivations that led to the introduction of such a programme.

This will be followed by an analysis of the operational aspects of the practice. A matter

of utmost importance concerns the role of the courts and the judiciary in court -

annexed mediation and will be considered in great detail. This article will then offer

suggestions on how some of the challenges that exist and are inherent in this particular

method of formalised mediation could be overcome. These views are expressed with the

hope that court-annexed mediation can function as an effective alternative dispute

resolution mechanism under the umbrella of the Malaysian courts. Last but not least, it

is also hoped that the above deliberations will be a catalyst for further comparative

research and debates concerning this increasingly imperative form of formalised

mediation process across all jurisdictions.

KEYWORDS: Court-Annexed; Mediation; Judges; Mediators.

University of Bologna Law Review

[Vol.1:2 2016]

DOI 10.6092/issn.2531-6133/6751

272

1. INTRODUCTION

Mediation practice in Malaysia has come a long way since its embryonic days

in the mid-1990s.

1

Today, mediation forms a core component in the Malaysian

judicial system where it provides an alternative to disputing parties to resolve

their dispute without going through the trial process.

2

The focal point of this

article is on this form of formalised mediation, namely court-assisted or

court-referred mediation. It will provide insights into this method of

formalised mediation.

This article will begin by discussing the motivations that led to the

introduction of such a programme by the Malaysian judiciary. This will be

followed by an analysis of the operational aspects of the practice. It will then

proceed to offer suggestions on how some of the challenges that exist and are

inherent in this particular method of formalised mediation could be over come.

These views are expressed with the hope that court-annexed mediation

can function as an effective alternative dispute resolution mechanism under

the umbrella of the Malaysian courts. Last but not least, it is also hoped that

the above-mentioned deliberations will be a catalyst for further comparative

research and debates concerning this increasingly imperative form of

formalised mediation process across all jurisdictions.

† Choong Yeow Choy is Professor of Law, Faculty of Law, University of Malaya (Malaysia). Tie Fatt

Hee is Professor of Law, Faculty of Law, University of Malaya (Malaysia). Christina Ooi Su Siang is

advocate and solicitor, High Court of Malaya (Non-Practising), and doctoral candidate, Faculty of

Law, University of Malaya (Malaysia).

1

See Cecil Abraham, Alternative Dispute Resolution, 20 Asian Bus. L. Rev. (1998).

2

See YAA Tan Sri Arifin Bin Zakaria, Chief Justice, Malay., Speech at the Opening of the Legal Year

2012 (Jan. 14, 2012) (transcript available in

http://www.kehakiman.gov.my/sites/default/files/document3/Penerbitan%20Kehakiman/KetuaHa

kim.pdf).

University of Bologna Law Review

[Vol.1:2 2016]

DOI 10.6092/issn.2531-6133/6751

273

2. COURT-ANNEXED MEDIATION – THE MOTIVATIONS AND THE MECHANISM OF THE

PROGRAMME

Court-annexed mediation refers to mediation where active judges and judicial

officers act as mediators to litigating parties after they have filed their action

in the courts. The Malaysian judiciary is the prime mover for introducing this

form of mediation in the legal system in Malaysia. As far back as in 2005,

mediation was viewed by the Malaysian judiciary as an alternative mode to

clear the backlog of cases where it was stated in its 2005/2006 annual report

that “the absence of [a] critical provision such as the power of the court to

direct parties to go for Alternative Dispute Resolution (ADR) is another reason

[for the delay in disposing of cases]”.

3

In fact, one author suggested that

mediation would be more popular if it is placed on a statutory footing.

4

As

summarised by U.S. Senior Judge and Chief Judge Emeritus J. Clifford Wallace

of the United States Court of Appeals (Ninth Circuit) that “what we are dealing

with in Malaysia is court-annexed mediation, that is, what do you do to

mediate after you have filed in court…”

5

Hence, severe backlog of cases in this

country has somewhat provided the catalyst for mediation to be taken seriously

by the courts.

6

In fact, it has been stated that court -assisted or court-referred

mediation would be an opportunity to introduce measures to alleviate the

problem of backlog of cases in the lower and High Courts.

7

On the 14th February 2010, it was reported in a local newspaper that the

Chief Justice was quoted to have said that the judiciary was in discussionwith

the Malaysian Bar to draft a Practice Direction to encourage litigating parties to

mediate instead of going to trial to resolve their disputes in Malaysian courts.

8

The Practice Direction No. 5 of 2010 (Practice Direction on Mediation) came

into effect on the 16th August 2010. It can be said that the 2010 Practice

3

Aniza Damis, Go Mediate! Mediation may be ordered to clear cases, NEW STRAITS TIMES MALAYSIA (Jun.

18,2007),http://www.malaysianbar.org.my/bar_news/berita_badan_peguam/go_mediate_media

tion_may_be_ordered_to_clear_cases.html.

4

See Swee Seng Lee, Mediation in Construction Contracts: Mediation, Adjudication, Litigation and

Arbitration in Construction Contracts, CURRENT L.J. (2006).

5

Shaila Koshy, The case for mediation, THE STAR ONLINE (Feb. 14, 2010),

http://www.thestar.com.my/story/?file=%2F2010%2F2%2F14%2Ffocus%2F5645878

6

Damis, supra note 3.

7

See Aida Othman, Introducing Alternative Dispute Resolution in Malaysia: Prospects and Challenges, 2

MALAYAN L. REV. 230 (2002). The author made a comparison with Singapore which already has an

established Court Mediation Centre.

8

See Shaila Koshy, Opt for mediation, people told, THE STAR MALAYSIA, (Feb. 14, 2010),

http://www.thestar.com.my/news/nation/2010/02/14/opt-for-mediation-people-told/.