COMMENT | Disputes or conflicts are common in different places and circumstances and they ought to be resolved amicably so as to ensure that the relationship would continue to work. This would benefit the parties involved and it would maintain social harmony and cohesion.

Unresolved conflicts or disputes may have an adverse impact on the relationship between the disputants as well as other effects. The alternative dispute settlement mechanism would include negotiation, mediation, conciliation and arbitration.

It is common knowledge that judicial settlement of disputes are costly, time-consuming with unpredictable outcomes and above all, creating irreversible damage to the relationships between the parties. Undeniably, the adversarial nature of the trial would more likely than not leave the parties bitter at its judgment.

There are many disputes that may be resolved outside the framework of conventional litigation, with the courts’ role as a last resort after alternative modes had been exhausted and the parties failed to reach an amicable solution.

The civil courts are taking mediation seriously as a first step towards settlement of disputes filed in the courts and this is evident with the introduction of Practice Direction No 4 of 2016.

This provides, inter alia, that judges may, with the consent of the parties, use mediation to resolve the dispute filed in the court, which can be carried out at any stage, whether at case management stage, after the trial has commenced or even when the case had reached the appeal stage.

Further, Practice Direction No 2 of 2013, titled ‘Mediation Process for Road Accident Cases in Magistrate’s Courts and Sessions Courts’ requires all personal injury claims arising from a motor vehicle accident to undergo a compulsory mediation before a court mediation officer and this has to take place once the pleadings are closed.

Alongside with the practice directions, the Court-Annexed Mediation Centre in Kuala Lumpur and the Federal Court Mediation Division under the supervision of the chief registrar of the Federal Court of Malaysia was established with a view of offering the mediation services to the disputants whose cases are before the court and carried out by judges or judicial officers. The existence of mediation, alongside conventional adversarial adjudication, provides an opportunity for the disputants to reach an amicable settlement before the case is decided by the court.

More recently, the United Nations General Assembly had, on Dec 20, 2018, adopted the Convention on International Settlement Agreements Resulting from Mediation, which is also known as the Singapore Mediation Convention. This convention is primarily aimed at promoting mediation as an alternative and effective method of resolving commercial disputes.

Pursuant to the convention, the settlement agreement has cross-border enforcement, where the agreement arrived thereto can be enforced in another state that has signed the convention, where foreign parties are involved. The official signing of the convention was held in Singapore on Aug 7, 2019, and will enter into force after a lapse of six months from the official signing date.

Mediation promotes compromise

It is noteworthy that mediation promotes compromise as people learn how to work harmoniously and reach outcomes that mutually benefit those involved. Mediation can mend and preserve frayed working relationships, even when the parties are extremely angry. The judiciary, as noted above, has initiated mediation for civil matters, making court appearances as a last resort.

However, the success of mediation would depend on several factors and this includes the support shown by the lawyers, alongside the commitment of the disputants.

The ‘hired-gun’ or litigation mindset must be discarded and instead, the amiable conflict resolution skills must be imbued into the would-be lawyers. The law school curriculum must, therefore, be adjusted to give priority to conflict resolution skills instead of ‘think like a lawyer’ skills.

These skills can be imbued into the substantive law subjects and have to be reflected in the curriculum, teaching and examination. By having these skills into the mainstream law subjects, the future lawyers would be more likely drawn into an amicable resolution of the dispute and thus, making court appearance only when the alternative methods fail to reach a mutually acceptable settlement.

The initiative by the Malaysian Legal Profession Qualifying Board as well as by the Bar Council vide it's proposed Common Bar Course making the alternative dispute resolution a compulsory subject for the law students is commendable.

By familiarising the law students of the alternative dispute resolution mechanism, it would facilitate the promotion of conflict resolution skills within the law school community.

Public awareness and knowledge of mediation is also necessary and the universities should initiate short courses on mediation training for members of the public, and perhaps even, the certification of mediators.

ASHGAR ALI ALI MOHAMED is a law professor at the International Islamic University Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.