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MEDIATION
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 WHAT IS MEDIATION
According to Asian Mediation
Association:

• Mediation is a voluntary, out of court, solution

driven and party orientated method of dispute
resolution.
• Mediation may be carried out between two or
more parties by way of seeking the assistance of
a trained and impartial third party, the Mediator, to
assist the parties to negotiate a mutually
beneficial and acceptable agreement.
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CONSULTANTS
 WHY MEDIATION
• is quick, efficient and easy; most mediations can
be concluded within a working day;
• is inexpensive and costs less than litigation or
arbitration;
• provides a safe environment for resolution as the
process is confidential, conducted in private and
matters disclosed in mediation may not be raised
or revisited in other proceedings;

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CONSULTANTS
 WHY MEDIATION
• acknowledges, addresses and deals with real and
practical concerns of parties which may
otherwise be considered irrelevant;
• enables parties to “mend fences”; restores and/or
preserves amicable relationships;
• empowers parties to reach a mutually satisfactory
resolution of their disputes;
• enables resolutions which are in the best interest
of the respective parties.
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CONSULTANTS
 THE LAW GOVERNING
MEDIATION
Mediation Act 2012 is the governing statute in
area with its legislative intents aiming to:

• “… promote and encourage mediation as a method

of alternative dispute resolution by providing for
the process of mediation, thereby facilitating the
parties in disputes to settle disputes in a fair,
speedy and cost-effective manner and to provide
for related matters”.

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CONSULTANTS
 RULES OF MEDIATION
1. Disputing parties may choose to submit to
mediation at any time.
In other words, parties may resort to mediation either
before or during the court proceeding.

In fact, it is the Practice Direction No. 4 of 2016

(Practice Direction on Mediation), issued by the Chief
Registrar of the Federal Court of Malaysia, which
mentioned that judges may encourage parties to settle
their disputes even after a trial has commenced.

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CONSULTANTS
 RULES OF MEDIATION
2. Disputing parties may decide the terms of
mediation.
Preferably, parties may come out with a mediation
agreement in writing and signed by both parties setting
out the terms of mediation.

For instance, in respect of which mediation forum to

go, parties’ choice of mediator, as well as express
term that mediation communications is to be treated
with utmost confidentiality and privilege from court
proceedings.

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CONSULTANTS
 RULES OF MEDIATION
3. The mediator shall have no decision-making
power whatsoever.
Mediator shall only play the role in facilitating
communications and negotiations between parties
and in identifying their needs, and developing
options amongst them for amicable solution.

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CONSULTANTS
 RULES OF MEDIATION
4. All disclosures, communications and even admissions
made under a mediation session are strictly “without
prejudice” or privilege.

It is not subject to discovery or be admissible in evidence in any

proceedings unless parties consented to it.

Forum for mediation during the subsistence of court/arbitration

proceedings:-

It shall be noted that regardless of choice of forum, parties must fix a

return date of not more than one month from the date the case
referred to mediation to report to the court on the progress and
outcome of mediation, according to Practice Direction No. 4 of 2016.

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CONSULTANTS
 CHANNEL / FORUM
OF MEDIATION
1. Judge-led mediation

 This is a mediation forum using judges as mediators to help disputing parties in

litigation to find a solution.
 This is free and one of the most popular forums based in Kuala Lumpur Court
Mediation Centre.
 The court may, either on its own motion or upon the request of any party, give such
direction for parties to mediate any action that has been instituted in the court.
 The governing rules will be the Practice Direction No. 4 of 2016 (Practice Direction
on Mediation) and the Rules of Court 2012 and not the Mediation Act 2012.
 One of the fundamental rules being that parties have the right to have their lawyers’
presence before the mediation judge unless agreed otherwise.
 In practice, it is quite common that hearing judges may request the parties to meet
in their chamber and suggest mediation to the parties if judges found that the
dispute may be amicably resolved.
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CONSULTANTS
 CHANNEL / FORUM
OF MEDIATION
2. Kuala Lumpur Regional Centre for Arbitration
(“KLRCA”)
 Alternatively, should parties wish to do so, they may seek mediation in
accordance with the KLRCA’s Rules of Mediation.

 Should parties agree during the court/arbitration proceedings, and upon the
direction of the Court, the plaintiff’s lawyer is bound to give a written
notification to KLRCA within seven (7) days and thereafter to be followed by the
KLRCA’s mediation process.

 It is to be emphasized that in the event that parties have commenced an

arbitration proceeding at KLRCA, they can still resort to mediation because
pursuant to section 32 of Arbitration Act 2005, a settlement outcome of
mediation shall terminate the arbitration proceedings accordingly.

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CONSULTANTS
 CHANNEL / FORUM
OF MEDIATION
3. Malaysian Mediation Centre (“MMC”)

 If parties prefer a rather flexible avenue of mediation, for instance they wish to have their
choice of mediator, they may choose a mediator from the list of certified mediators furnished
by the MMC. Parties may even appoint multiple mediators to resolve their dispute if they wish
to do so.

 In addition, parties may even decide on whether the chosen mediator is to be bound by the
MMC Code of Conduct and the MMC Mediation Rules. If the parties prefer to be bound by
such code and rules, the Plaintiff’s lawyer shall give written notification to MMC within seven
(7) days upon the direction of the Court and MMC will then proceed with mediation process
upon receiving such notification.

 Forum for mediation prior to the commencement of court proceedings:-

 If the parties have not initiated the court or arbitration proceedings, mediation could be
carried out at relevant institutions such as KLRCA, MMC or Legal Aid Department.

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CONSULTANTS
 PROCESS OF MEDIATION
The normal Mediation Process would involve the parties and Mediator meeting together, at
scheduled session(s) as determined by the parties.

The Mediator’s role in a mediation is principally to facilitate, guide and assist the parties towards
arriving at a mutually agreeable resolution where joint and separate private sessions may also be
used by the Mediator to help the parties define the issue(s) in dispute clearly, appreciate each
parties respective positions, addresses the concerns of the parties and move closer towards the
resolution. The entire mediation process is conducted in a safe, private and confidential manner. The
Mediator shall at all times remain impartial and non-judgmental

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CONSULTANTS
 PROCESS OF MEDIATION

• The normal Mediation Process would involve the parties and Mediator meeting
together, at scheduled session(s) as determined by the parties.
• Essentially mediation runs like a guided negotiation between the parties, with the
mediator facilitating the communication. Most mediations generally run by the
following five-stage format:
• Stage 1: Establishing the Process:
The Mediator and the parties agree to a number of guidelines they will follow in the
Mediation. This usually includes only allowing one person to speak at a time, treating
all parties with respect, and confidentially.
• Stage 2: Exploring Positions and Interests:
The parties usually make their initial statements regarding their disagreement and
define what they hope to resolve at the Mediation.
• Stage 3: Developing Solutions:
Each party discusses their interests and possible solutions to resolve their
disagreement.
• Stage 4: Private Sessions:
Where appropriate, the Mediator may hold private and confidential sessions with each
party to assist in determining further interest and/or discussing possible solutions.
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• Stage 5: Finalizing A Resolution: CONSULTANTS
The parties assisted by the Mediator craft a resolution mutually agreeable to both