Opt for mediation, people told

KUALA LUMPUR: If you could get RM10,000 in compensation from your neighbour for crashing their car into your house and an apology within a week instead of waiting out a long-drawn court case in the hopes of collecting RM200,000, would you take it?

If you could, within a few months, collect RM100,000 in compensation from your sister’s husband for the shoddy work on your roof which collapsed, instead of a 10-year wait for possibly RM800,000 through litigation, would you take the first option? And in the process prevent the souring of family ties?

In the first option in both the scenarios, the parties would most likely have opted for “mediation” which is issues-based, as opposed to the second litigation option which is rights-based.

If the judiciary has its way, most cases that are brought to court – and end up being long drawn, thus clogging up the system – should be resolved through mediation. In many cases, family ties and friendships are destroyed because opposing parties refuse to resolve issues as quickly as possible but choose the litigation process which often takes years.

The judiciary wants to educate the public that mediation should be the “preferred” way to resolve disputes in Malaysian courts.

“I have had discussions with the Bar Council and I am in the process of drafting a Practice Direction for parties to be encouraged to mediate instead of going to trial,” said Chief Justice Tun Zaki Azmi.

He told The Star this during a Mediation Seminar for over 50 High Court and Sessions Court judges and registrars at a hotel here recently, conducted by Senior Judge and Chief Judge Emeritus J. Clifford Wallace of the United States Court of Appeal (Ninth Circuit).

Although Parliament has not enacted a law to state that mediation should be the first route to dispute resolution instead of litigation, the judiciary is paving the way for court-annexed mediation.

“An Act of Parliament will take a long time. We can start the process with a Practice Direction for mediation during case management,” added Justice Zaki.

On a personal level, the benefits of mediation are: a speedier resolution, much cheaper than litigation, and the chance to mend the breach between the two parties.

On a national level: the Malaysian judicial system will not be backlogged by cases that should never have been filed in the first place, freeing judges to hear real disputes and improving overall efficiency.

Chief Judge of Malaya Tan Sri Arifin Zakaria said a “judicial settlement” type of mediation was already being used by the courts in accident cases in Peninsular Malaysia and had proven successful in bringing about resolutions: Shah Alam (45%), Kuala Lumpur (45%) and Kota Baru (80%).

Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum said that 50% of all trials in the two states were similarly resolved.

Asked whether mediation was only successful in accident and family disputes, Justice Zaki replied: “No. But as we go through this informal process, we will see what disputes are best resolved through mediation.”

In Australia, mediation has been successful in the following types of cases: contract/commercial, collections, medical malpractice, motor vehicle, negligence, real property, trust and fiduciary duties and wrongful dismissal.

Related Stories: Bar Council pushes for concerted effort The case for mediation