Under Practice Direction No. 4 (2016) on Mediation, the Chief Justice of Malaysia directed that, as of the 15th of July 2016, all judges of the High Court and its deputy registrars and all judges of the Sessions Court and magistrates and their assistant registrars may, at the pre-trial case management stage, provide such directions that the parties may facilitate the settlement of the matter before the court by way of mediation. Judges may encourage parties to settle their dispute at the pre-trial stage or at any stage, even after a trial has commenced.
The objective of this Practice Direction is to encourage the disputing parties to arrive at an amicable settlement, without going through or completing a trial or appeal. A mediated settlement that is accepted by the parties is expeditious and final. The Practice Direction is intended to be only a guideline for settlement. The Judge and the parties may suggest or introduce any other modes of settlement, as long as such suggestions or directions are acceptable to the parties.
Under the Practice Direction, advocates and solicitors shall cooperate and assist their clients in resolving the dispute in a conciliatory and amicable manner.
The following are examples of cases in Malaysia that are easy to settle by mediation:
- Claims for personal injuries and other damages, due to road accidents or any other tortious acts, because they are basically monetary claims
- Claims for defamation
- Matrimonial disputes
- Commercial disputes
- Contractual disputes
- Intellectual Property cases
Mediation in Malaysia may be conducted by the following:
- Judge-led mediation
- Kuala Lumpur Regional Centre for Arbitration
- Other mediators, agreeable to both parties
The Practice Direction provides for institutionalized mediation under Annexure B, which specifically states the procedures for the disputing parties to follow in institutional mediation under the auspices of the KLRCA, now known as the AIAC. Further, Annexure C to the same Practice Direction, states the procedures that allow the parties to refer the mediation to other mediators, agreeable to both parties, if they so wish.
By Primila Edward, Senior Fellow-Malaysia, Weinstein International Foundation.