7 Things Need Know Mediation Process

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The Mediation Process in Malaysia


A. What is Mediation? 

A. 什么是调解?

Mediation is a voluntary, solution-oriented form of alternative dispute resolution. This is where the parties to a dispute agree to resort to mediation, they may seek the assistance of an independent and impartial third party, a Mediator, who will facilitate communication and negotiation between the parties to aid them in reaching a mutually beneficial and satisfactory agreement regarding the dispute. 


A few distinctive features of mediation are outlined below: 


1. Mediation is voluntary 


1.1 When may parties mediate? 


Mediation is voluntary in the sense that parties may choose to commence mediation proceedings at any given time. The significance of this discretion is that parties may choose to mediate even after court proceedings have been brought. In fact, according to sections 1 and 3 of the Practice Direction No. 4 of 2016 on Mediation (hereinafter referred to as ‘PD No.4 2016’), the Chief Justice of Malaysia has directed that all judges of the High Court, Sessions Court and magistrates, as well as their deputy and assistant registrars respectively, should encourage parties to settle their disputes before the court by way of mediation at the pre-trial stage or at any stage. 

调解是自愿性的,各方可选择在任何时间开始调解程序。这种酌处权的重要性在于,即便在提起诉讼后,当事各方仍可选择进行调解。事实上,根据2016年第4号法律公告第1和第3条(以下简称“ 2016年第4号PD”)于调解程序,马来西亚首席大法官已指示所有高等法院,地方法院及推事庭法官,以及他们各自的副主簿和助理主簿,应鼓励当事各方在预审阶段或任何阶段通过调解方式解决在法院面前的争端。

1.2 On what terms may parties mediate?


The parties may collectively decide the terms of the mediation proceedings. 


Forums for Mediation


The parties may choose the forum through which their dispute is mediated. Section 5 of PD No.4 2016 outlines the following modes of mediation: “(a) by judge-led mediation, (b) by Asian International Arbitration Centre (hereinafter referred to as ‘KLRCA’); or (c) by other mediators agreeable by both parties”. 

当事各方可选择调解其争议的中介。2016年第4号PD第5条概述了以下调解程序的模式:“(a)法官主导调解,(b)亚洲国际仲裁中心(以下简称“ AIAC”);或(c)双方同意的其他调解人”。

It is notable that different mediation forums are governed by different rules. 


(a) Firstly, judge-led mediation is governed by the rules set out in Annexure A of PD No.4 2016. Significantly, this directs that, the original judge hearing the case shall pass the case to another mediating judge. The mediating judge  will not see the parties without their lawyers’ presence. Nonetheless, it is notable that the parties may choose to vary these terms by agreement. 


 (b) Secondly, should the parties wish to do so, they may elect to mediate in accordance to AIAC’s Rules of Mediation, in which case the Plaintiff’s solicitor will be required to issue a notice in writing to the AIAC upon the direction of the court within seven (7) calendar days (see: Annexure B of PD No.4 2016).


(c) Where the parties elect to personally appoint their mediator, they may choose from a list of certified mediators furnished by the Malaysian Mediation Centre of the Bar Council of Malaysia (MMC), or any other mediator agreed upon by both parties (see: Annexure C of PD No.4 2016). When a mediator from the MMC has been chosen, the mediation proceedings will be bound by the MMC Code of Conduct and the MMC Mediation Rules. (see: Mediator’s Rules and Code of Ethics, Malaysian Mediation Center website)

(c)如果当事各方选择亲自委任他们的调解人,则可从马来西亚律师公会属下马来西亚调解中心(MMC)提供的经认证的调解人名单中,或由双方同意的任何其他调解人中进行选择(请参阅: 2016年第4号PD附件C)。从MMC中选择调解人后,调解程序将受MMC行为准则和MMC调解规则约束。 (请参阅:调解人规则与行为准则,马来西亚调解中心网站)

Other terms 


Other terms upon which the parties may wish mediate against may also include the proportions of the costs of mediation to be borne by each party, as well as the confidentiality of mediation communications. The latter will be discussed further below. 


Upon coming into agreement on the terms of the mediation proceedings, the parties will outline these terms in a mediation agreement. 


1.3 Are parties obliged to come to a settlement?


The parties are not obliged to come to a settlement where they are unable to reach a mutually beneficial outcome. 

当双方无法达成互惠互利的结果时, 他们没有义务达成和解。

Where mediation is unsuccessful, the mediator will dismiss the mediation session and it is then open to the parties to resolve the remaining dispute by way of litigation or arbitration. 


However, where mediation is successful, the parties may record the agreement in writing in the settlement agreement. Once signed, the settlement agreement will be final and binding on both parties (see: Section 14(1) Mediation Act 2012). Should either party fail to comply with the terms of the settlement agreement, the aggrieved party may have recourse to the default by bringing an action in court for breach


2. Mediation proceedings are “without prejudice” / privileged

2.调解程序是“没有偏见” / 保密的

2.1 The general rule 


A key feature of mediation proceedings is the confidentiality of the process. According to section 15(1) of the Mediation Act 2012, all mediation communications may not be disclosed and are to remain private between all parties and the mediator involved. 


Additionally, section 16(1) of the Mediation Act 2012 asserts that any mediation communications are strictly protected by ‘without prejudice’ privilege – such communications may not be subject to “discovery or be admissible as evidence in any prior proceedings”. This means that any matters discussed during the mediation process may not be raised or revisited in future legal proceedings. 

此外, 2012年调解法第16(1)条断言,任何调解通讯均受到“没有偏见”特权的严格保护-此类通讯可不受“披露或在任何先前程序中作为证据被接受”约束。这意味着在调解过程中讨论的任何事项不得在将来的法律程序中提出或重新讨论。

2.2 The Exceptions 


Nonetheless, such guarantees of confidentiality and privilege are subject to several exceptions as outlined in s 15(2) and s 16(2) of the Mediation Act 2012. Excerpts of these sections are as follows: 

但是,此类保密性和特权保证受 2012年调解法第15条第2款和第16条第2款概述的若干例外的约束。这些条文的摘录如下:

“s 15(2) … mediation communication may be disclosed if – 


(a) The disclosure is made with the consent of the parties; 


(b) The disclosure is made with the consent of the person who gives the mediation communication; 


(c) The disclosure is required under this Act or for the purpose of any civil or criminal proceedings under any written law; or 


(d) The disclosure is required under any other written law for the purposes of implementation or enforcement of a settlement agreement” 


“s 16(2) … the mediation communication is not privileged if – 

“ s 16(2)……调解通讯在以下情况均不享有特权:

(a) The privilege is expressly waived in writing by the parties, the mediator and the non-party; 


 (b) It is a public document by virtue of the Evidence Act 1950 [Act 56]; 

(b)根据《 1950年证据法》 [第56号法] 为公开文件;

(c) It is a threat to inflict bodily injury or commit a crime; 


(d) It is used or intended to be used to plan a crime, attempt to commit or commit a crime, or to conceal a crime or criminal activity or an ongoing crime or ongoing criminal activity;


(e) It is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator; or 


(f) It is sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a party, non-party, or representative of a party based on their conduct during any mediation session.”


The most notable exception to confidentiality and privilege, as highlighted in purple above, is that parties may agree to consent to disclosure, or to expressly waive privilege in writing. In such cases, mediation communications will not be confidential or privileged. 


B. Why should you mediate? 


Mediation is a preferred method of alternative dispute resolution as it is inexpensive compared to the exorbitant costs of litigation or arbitration. 


Mediation is also comparatively more efficient. According to the MMC, most mediations can be concluded within a working day, and may be contrasted with protracted litigation proceedings which may stretch on for years. 

调解也相对有效。 MMC认为,大多数调解可在一个工作日内完成,并且可与可持续数年的漫长诉讼程序形成对比。

Most significantly, mediation is a non-hostile means of resolving a dispute. 


When parties choose to litigate their cases in court, the court system places them in adversarial positions. The conclusion of litigation proceedings results in absolute wins or losses for either party. As such, by the end of litigation, the relationship between both parties will usually have deteriorated beyond repair. 


In contrast, mediation produces amicable resolutions which are likely to be in the best interest of both parties. Thus, mediation is the preferred form of alternative dispute resolution for those whom are concerned with preserving their relationships. 


Please click here for the Operating Procedure for Mediation at the Court Mediation Center


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