Monday, 13 September 2010

Practice Direction No 5 of 2010 on Mediation


The Chief Justice of Malaysia has issued a Practice Direction on mediation, which came into effect on 16 Aug 2010. According to the Practice Direction, all Judges of the High Court and its Deputy Registrar and all Judges of the Sessions Court and Magistrates and their Registrars, may “give such directions that the parties facilitate the settlement of a matter before the court by way of mediation”.

The objective of this Practice Direction is to encourage parties to arrive at an amicable settlement without having to go through, or complete, a trial or appeal.

The benefits of settling disputes by way of mediation are as follows:

* Parties are able to explore all options available;
* Underlying issues and common grounds may be identified;
* Good relationships are restored and maintained;
* Terms agreed upon would be acceptable to both parties;
* Settlement is expeditious;
* No delays in court hearings; and
* Terms of settlement are final.

The Practice Direction offers the following modes of referrals to mediation, whereby parties are given the option to select:

* Option A - Judge-led mediation; or
* Option B - By a mediator agreeable to by both parties.

Option A
This option allows for a process whereby, if agreed by parties, the Judge hearing the case will refer the case to another Judge.

In the event the mediation fails, the matter will then be referred to the original Judge to hear and complete the case. However, if mediation is successful, the Judge mediating shall record a consent judgment on the terms as agreed to by the parties.

Option B
This option allows parties to appoint a trained mediator of their preference (mutually agreed upon) to mediate the matter. At the present moment, there is a total of 236 mediators empanelled on the Bar Council Malaysian Mediation Centre (MMC). For a list of MMC mediators, kindly call Marianna Tan (03-2031 3762) or Faizal Mahat (03-2031 3003 ext 185).

Under this option, parties may, if they so desire, appoint more than one mediator to resolve their dispute.

MMC’s rates are as follows:

* Mediator’s fees: RM1,500 per day (regardless of the quantum of claim);
* Administrative fees: RM300 per case; and
* Room Rental: RM350 per day, if MMC’s premises are being utilised.

A pre-mediation conference will be conducted without any charge.

Should parties decide to engage the services of MMC, kindly complete and submit the Mediation Request Form to MMC.

Apart from the cases identified in the Practice Direction, MMC also mediates disputes in the following areas of practice:

* Landlord/Tenant;
* Hire-Purchase;
* Employment;
* Construction;
* Defamation;
* Probate & Estate;
* Conveyancing; and
* Professional Malpractice.

It is hoped that Members would take this opportunity to encourage their clients to opt for mediation and settle their disputes by way of mediation.


Ragunath Kesavan
Malaysian Bar

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