What is the general process for mediation in Malaysia? Parties may jointly appoint a mediator from the list of certified mediators empanelled with the Malaysian Mediation Centre (MMC), the Asian International Arbitration Centre (AIAC) or any other mediator agreed to by both parties. Firstly, it begins with an introduction by the mediator who explains the nature and process of mediation. In the first joint session, the mediator will identify the issues at hand and acknowledge the concerns, needs and interests of the respective parties. After the first joint session, each party will have a private session with the mediator. During this session, each party can individually discuss the confidential and sensitive issues pertaining to the dispute with the mediator. The mediator will then invite both parties to attend the second joint session where alternative solutions will be discussed between parties, focusing on their needs and interests. In the event that parties are able to resolve their dispute, parties would be advised to enter into a written settlement agreement or a consent order which would bind both parties. This is not subject to an appeal. If either party breaches any term in the settlement agreement or consent order, the aggrieved party may sue the defaulting party for its breach. However, if mediation is unsuccessful, parties have the option to resolve the dispute by way of litigation, or they may even choose arbitration. There are various types of mediation in Malaysia. Could you please give an overview of these? The Mediation Act 2012 was passed to promote and encourage mediation by providing for the process of mediation, thereby facilitating the parties in disputes to settle disputes in a fair, speedy and cost-effective manner. Parties are typically given an opportunity to appoint any person as their mediator, but if they are unable to come to an agreement, they may apply to the MMC or AIAC to appoint a qualified mediator. If a matter is filed in court, under Practice Direction No. 4 of 2016, the Chief Justice of Malaya has directed that all judges of the Sessions Court – as well as magistrates and their assistant registrars – at the pre-trial case management stage 84 LAWYERMONTHLY SEPTEMBER 2022 Mediation inMalaysia: Ensuring Success Thought Leader As is the case the world over, ADR is only as effective as the parties involved are willing to cooperate with it. This is especially true in Malaysia, which has its own steps to consider as part of mediation. Advocate and solicitor Nishantel Kaur gives an overview of these unique facets and offers her own thoughts on what makes a mediation truly effective.
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