“It is honourable for a man to resolve a dispute, but any fool will quarrel.”: Proverbs 20:3
When there is a legal dispute, how is it resolved?
The most common civil legal dispute resolution process is litigation (“Litigation”). This typically involves a Plaintiff (the claimant) and Defendant (the respondent) before a Judge in a court of law.
The Judge will decide the dispute between the parties by considering the evidence presented and applying the relevant laws to determine the outcome of the dispute. Usually, one party wins while the other party loses or in a situation whereby both have respective liability contributions or are equally at fault (“in pari delicto”), the court may award accordingly or may in the latter situation, decline from making any award, leaving losses to lie where they fall.
Litigation in court is generally tedious and time consuming. The legal fees and court costs are high, not to mention that the whole process can be very contentious and stressful for the litigants, Due to this, the government is encouraging parties to settle their dispute via Mediation rather than Litigation.
In this article, we want to highlight what Mediation is and why Mediation is a preferred alternative dispute resolution (“ADR”) process.
- What is Mediation?
Mediation is an informal alternative dispute resolution method. A neutral third party, i.e a Mediator would facilitate and encourage parties to cooperate and have open discussions about the dispute. This is to identify common grounds for negotiations so that a mutually satisfactory solution can be achieved. The aim of Mediation is also to consider the parties’ respective needs and objectives to resolve the dispute, while preserving their relationship.
- What are the types of Mediation available?
There are 3 common types of Mediation: Facilitative Mediation, Evaluative Mediation and lastly Transformative Mediation.
a. Facilitative Mediation
The Mediator merely facilitates a resolution between the parties. It is up to the parties to arrive at a solution. The parties will have the final say over the outcome of the Mediation, whether it is successful or otherwise.
b. Evaluative Mediation
The Mediator would assist parties to reach a resolution by pointing out strengths and weaknesses of their respective cases, predicting the chances of winning or losing, and may also be involved in making the judgment call for the parties. The Mediator may make formal or informal recommendations to the parties that could influence the outcome of the Mediation.
c. Transformative Mediation
The Mediator may work with a professional psychologist to empower each party by recognizing their needs, interests, values and points of view with the aim to transform each person, i.e. party interaction, perception and their approach to a conflict during the Mediation process.
- Which type of Mediation process do you offer and in what areas of legal practice?
As a Mediator on the panel of the Malaysian International Mediation Centre, our Mediator only offers Facilitative Mediation focusing on contract, construction and family disputes. You may view our Mediator’s profile at https://www.malaysianmediationcentre.org/list-of-accredited-mediators/5448/tan-ru-en/.
- What are the advantages of Mediation?
The following advantages of Mediation are:-
a. Informal and Non-Adversarial.
The process is informal and parties can be comfortable being themselves, unlike in a formal court setting which can be quite tense and stressful.
b. Autonomy Of Parties.
Parties have the final say over the outcome of the Mediation, as they are fully in the position to decide whether to reach an amicable settlement or otherwise.
c. Relatively Cheaper Than Litigation.
If parties are cooperative and open to discuss their respective needs and objectives in good faith, there is a good chance of achieving an amicable settlement. If the dispute can be resolved by Mediation, parties need not incur excessive costs and legal expenses that entails Litigation.
d. Preserve Relationship.
Parties are to work together, instead of against each other. We emphasize that the aim of Mediation is to also maintain, restore or rebuild the relationship of parties.
e. Private And Confidential (“P&C”) & Strictly Without Prejudice.
Unlike Litigation whereby most trials are held in public, parties can keep whatever discussions between themselves and with the Mediator during Mediation on a P&C basis. This would avoid unwanted publicity and disclosure of sensitive information. If the Mediation is unsuccessful, parties can still opt for Litigation or Arbitration.
f. Lower Chances Of Future Dispute.
Since parties had willingly agreed to Mediate, and an amicable solution is determined based on the needs and objectives of the parties, and upon considering their realistic expectations (such as Best Alternative(s) To A Negotiated Agreement (BATNA) / Worst Alternative(s) To A Negotiated Agreement (WATNA) / Most Likely Alternative(s) To A Negotiated Agreement (MLATNA)), parties are less likely to breach their part of the bargain. Even if this happens, the Settlement Agreement is binding on the parties and court proceedings can be commenced to enforce the Settlement Agreement as a consent judgment or a judgment of the court.
g. Time Required For Resolution.
Normally, Mediation can be concluded within a few months or sometimes within days whereas Litigation may take months or years if there are appeals made to a higher court by the dissatisfied / aggrieved party.
- When is Mediation suitable?
The most important thing to bear in mind for Mediation is that parties are genuine and willing to attempt settlement with an open heart and mind, without malice / bad faith. It is only then that we believe parties may be able to reach an amicable settlement through the Mediation process.
- When is Mediation not suitable?
Mediation is NOT SUITABLE in the following circumstances (not exhaustive):-
a. In criminal cases;
b. In cases of domestic violence, be it mental, physical or sexual in nature;
c. When a party requires a protective order from the court / a case involving an injunction or specific performance filed by a party;
d. If one party or both parties are rigid and unwilling to participate or demonstrates a lack of commitment to the Mediation process, and/or that the parties’ relationship is very acrimonious (to a point of no return) and there is no open communication between the parties;
e. If either party or both parties are not mentally sound / has a mental disability or if parties are irrational, i.e under substance abuse;
f. Where the dispute involves a serious point of law which requires the court’s determination.
- Can you be represented by solicitors during Mediation?
Yes. In fact, we find that if solicitors work hand in hand with the Mediator and play a positive role, the chances of a successful Mediation are higher. Also, parties are more comfortable in the presence of their own solicitors who can advise them on any related legal issue(s) / legal concern(s) they may have during the Mediation process. Apart from that, solicitors can also assist to draft out the Settlement Agreement which will be binding and enforceable on the parties.
- Will the Mediation process be lengthy?
As mentioned earlier, if parties are willing and open to negotiate and discuss the dispute, the Mediation process can be relatively quick compared to having the dispute decided by the court. Most often, we realise that parties just want to meet and be heard, or acknowledged or merely to receive an apology. By recognizing and meeting such emotional needs of the parties, the Mediation process can be expedited with increase chances of success.
- Who can conduct / facilitate a Mediation?
Mediation can be held as follows:
a. By a Judge / court officer from Pusat Mediasi Mahkamah who will be the Mediator when a case is filed in court pending trial / hearing;
b. By an Accredited Mediator in the Panel of the Asian International Arbitration Centre or AIAC (formerly known as Kuala Lumpur Regional Centre of Arbitration or KLRCA) or Panel of the Bar Council’s Malaysian Mediation Centre;
c. By an Accredited Mediator in the Panel of the Pusat Mediasi Covid-19 (PMC-19) for all disputes less than RM500,000.00 (not applicable for certain disputes / parties);
d. Any other person to whom parties agree to engage as a Mediator (Accredited or otherwise) to resolve the dispute.
Conclusion
Whether or not you should consider Mediation vis-à-vis Litigation would depend on the facts of your individual case and the willingness of the parties involved to Mediate instead of Litigate. However, as we have highlighted the advantages of Mediation and the situations in which Mediation may be suitable or not suitable, we trust that you can make a more informed decision.
Being lawyers, we see ourselves as having a moral and social duty to encourage parties to resolve disputes peacefully, instead of contentiously through Litigation. In this regard, we subscribe to the motto of the Bar Council’s Malaysian Mediation Centre which is “Mediate – Don’t Litigate”.
Should you wish to find out more about Mediation, feel free to contact us.
[Disclaimer: The above Article is merely for general informational purposes only as at the date of publication, on 2 June 2022, and is not conclusive. Readers should seek proper legal advice especially where the law, rules and practices will change from time to time.]
-TRE-