“RESPONSIBILITY OF JUDGES UNDER PRACTICE DIRECTION NO. 5 OF 2010”
YAA TAN SRI ARIFIN ZAKARIA
CHIEF JUDGE OF MALAYA
AT SEMINAR ON MEDIATION WITH JUDGE JOHN CLIFFORD WALLACE
1ST OCTOBER 2010
Bismillahirahmanirahim
Assalamualaikum and a very good morning to all.
The Rt. Hon. Tan Sri Dato’ Seri Alaudin bin Dato’ Mohd Sheriff,
President of the Court of Appeal
The Honorable Justice John Clifford Wallace,
Senior Judge of the Ninth Circuit of United States of America
The Hon. My Fellow Managing Judges
Brother and Sister judges, Judicial Officers
Ladies and gentlemen.
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Introduction
When the present Chief Justice, the Rt. Hon. Justice Zaki Azmi took office in
October 2008, a nationwide stocktaking exercise was carried out to determine the exect
number of cases pending in courts. As expected, we found a staggering number of
cases, namely 57715 civil cases pending in the High Courts and 96,098 and 153,935
civil cases pending in the Sessions Courts and the Magistrates Courts respectively .
Most of the cases originate from Peninsular Malaysia. Next step is to find ways and
means to dispose the cases more expeditiously.
Steps were taken to explore new approaches in disposing the same . Among the
steps taken were
a) Appointing Managing Judges for respective trial centres.
b) Introducing Tracking System in Courts whereby courts are divided into A
Track for hearing affidavit based evidence and T Track for hearing trial involving
witnesses.
c) By introducing the Electronic Court System (E Court) comprising the Court
Recording Transcription (CRT) and Case Management System(CMS) and Que
Management System (QMS) ; and
d) The use of Alternative Dispute Resolution (ADR).
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Mediation is a kind of alternative dispute resolution. It is a process towards
settling a dispute with the assistance of a third party. In a mediation, a neutral individual
is invited by the parties to assists the disputing parties in identifying issues, develop
options to resolve issues and finding resolutions acceptable to all parties.
Benefits of Mediation
The mediator may assists parties to :
a) encourage exchanges of information.
b) Provide new information.
c) Help parties to understand each other’s views.
d) Let them know that their concerns are understood.
e) Promote a productive level of emotional expression.
f) Deal with the differences in perceptions and interest between negotiators .
g) Help negotiators realistically assess alternatives to settlement.
h) Encourage flexibility .
i) Shift the focus from past to future.
j) Stimulate the parties to suggest creative settlements.
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k) Learn (often in separate sessions with each party) about those interests the parties
are reluctant to disclose to each other ; and
l) Invent solutions that meet the fundamental interest of all parties.
Advantanges of Mediation Over Litigation
a) Mediation is the least intrusive form of third party involvement in a dispute. Parties
retain control over vital decisions affecting their lives.
b) Outcomes are tailored to the needs and interests of the parties, and represent the
parties own preferences.
c)
Since parties create the resolution and since mediators have a duty to ensure
“durable” agreements”, there is a greater satisfaction with the outcome and the higher
level of compliance than with judicial process.
d) Mediation process address all negotiation issues raised by the parties and is not
limited to legal cause of action.
e) Mediation “empowers” parties in that disputing parties understand the process and
control the outcome.
f)
Improves parties’ capacity to resolve future dispute
together.
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and helps parties to work
g) Parties may keep the affairs private since the process is confidential.
h) Mediation process is cheaper as compared to litigation.
Court Annex-Mediation/Judge Led Mediation.
Mediation has long been in place in Malaysia. It was done at the initiative of the
Malaysian Bar Council and at one stage cases were in fact referred by the court to the
Malaysian Mediation Centre (MMC) but for some reason unpopular among the litigants.
The court then stopped referring cases to MMC.
We in the judiciary realized that our neighbour had been very successful in using
mediation as an alternative dispute resolution. We were informed that in Singapore 84%
cases were settled by mediation. Learning the success of Singapore Subordinate
Court’s Primary Dispute Resolution Centre (PDRC) in disposing civil cases, the
Malaysian Judiciary decided to adopt the Singapore’s model with certain modification to
suit the local needs and circumstances. A session was allocated to Judge Joyce Low,
District Judge of the Singapore Subordinate Courts Primary Dispute Resolution Centre
to impart and share her knowledge and experience at the Conference of Sessions Court
Judges and Magistrates held on 27th t0 29th March 2009 in Kuala Lumpur.
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The
conference resolved
that mediation will be implemented in the subordinate courts,
initially, on an informal basis.
In Jun 2009 mediation started
for motor vehicle accident cases in trial centres
such as Kota Bahru, Kuala Lumpur and Shah Alam. These cases are considered to be
suited for mediation as they involved settled law and more often than not the dispute in
these cases mainly centres on quantum. Six months after the introduction of mediation
in these courts, a total of 341 cases were referred to mediation and 1414 cases were
settled. The success rate is 41%. For a start, this is rather encouraging.
Having seen the performance of the Subordinate Courts settling half of the cases
referred to mediation, the High Court in Kuala Lumpur followed suit. The Commercial
Division of the High Court at Kuala Lumpur had started its own informal mediation on 1 st
March 2010. Through this process, the Deputy Registrars, while presiding over PreTrial Case Management will identify 25 cases suitable for mediation to be allocated to
each judge. The judges will be given 3 months to mediate these cases and try to
persuade the parties to reach an amicable settlement.
The Civil Division of the High Court at Kuala Lumpur which also started
mediation on 1st march 2010 has its own way of mediating its case. The Pre Trial Case
Management in the High Courts are done by the Deputy Registrars. In this division, to
facilitate parties to negotiate for settlement, the final Pre Trial Case Management is
fixed before the judge with the aim of facilitating a judicial settlement. If such effort is
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successful, a consent judgment will be recorded as soon as possible. The hearing dates
for the case which has been fixed earlier will be vacated and will be replaced with
another case.
PRACTISE DIRECTION NO 5 OF 2010
Having realised the benefits of mediation, the courts in Malaysia had taken
further steps to introduce formal direction on mediation by issuing Practice Direction No.
5 of 2010 on 13 August 2010 with the objective to encourage parties to arrive at an
amicable settlement without going through or completing a trial or appeal. The benefit of
settlement by way of mediation is that it is accepted by the parties, expeditious and it is
final.
The Practice Direction is intended to be only a guideline for settlement. The
Judge and the parties may suggest or introduce any other modes of settlement so long
as such suggestion or directions are acceptable to the parties.
The Responsibility of Judges under Practice Direction No. 5 of 2010 can be
simplified as follows:
1- Power to Direct? The Judges and Registrars at the stage of Pre Trial Case
Management, sould give such directions that the parties facilitate the settlement
of the matter before the court by way of mediation. –Order 34 Rule 4 of Rules of
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High Court, Order 19 Rule 1 (1) (b) of the Subordinates Courts Rules 1980 and
Practice Direction 5 of 2010.
2- When to Suggest ? The Judges and Registrars should encourage parties to
settle their disputes at any stage whether prior to, or even after a trial has
commenced. It can even be suggested at the appeal stage. – bear in mind that, a
settlement can occur during any interlocutory application e.g at an application for
summary judgment, striking out or at any other stage.
3- Types of Suitable Cases ? The Judges should know the cases which are easy
to settle by mediation. The following cases are the cases which suitable for
mediation :
a) Claims for Personal Injuries and other damages due to road accidents
or any other tortuous acts because they are basically monetary claims;
b) Claims for defamation;
c) Matrimonial Disputes;
d) Commercial Disputes;
e) Contractual Disputes; and
f)
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Intellectual Property Cases.
4-
During the case management or hearing, if a Judge is able to indentify issues
arising between the parties that may be amicable resolved, he should highlight
those issues to the parties and suggest how those issues may be resolved.
5-
In doing so, the Judge can request to meet in his chamber in the presence of
their counsel, and suggest mediation to the parties. If they agree to the mediation
then the parties will be asked to decide whether they would wish the mediation to
be the judge-led or to be referred to a mediator.
6- Procedure for Judge-Led Mediation ? Unless agreed to by the parties, the
Judge hearing the case should not be the mediating Judge. He should pass the
case to another judge. If the mediation fails then it will revert to the original judge
to hear and complete the case.
7- When the parties agree to mediate, each of the parties shall complete the
mediation agreement as in “Form 1”. The procedure shall be in the manner
acceptable to both parties and when
8- Unless agreed to by the parties, the Judge will not see the parties without their
lawyers’ presence except in cases where the parties is not represented.
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9- Any agreement consequent upon a successful mediation may be reduced into
writing in a Settlement Agreement signed by the parties but in any case the
parties shall record the terms of the settlement as a consent judgment.
10- Results of Mediation ? The Judge shall fixed a return date not more than one
(1) month from the date the case is referred to mediation for parties to report to
the Court on the progress of mediation; and in the event the mediation process
has ended, the outcome of such mediation.
11- If the mediation fails to resolve the dispute, the Court shall, on the application of
either of the parties or on the Court’s own motion, give such directions as the
Court deems fit.
12- In normal situation, The judge has to ensure that all mediation must be
completed not later than three months from the date, case is referred to
mediation.
13- Confidentiality – The judge has to ensure that all disclosures, admissions and
communications made under a mediation session are strictly “without prejudice”
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Fixing of Cases for Mediation;
a) The Judge shall fix a mediation date within one month from the date after bundle of
documents were filed. A trial date shall also be fixed as a “back-up plan” in the event
mediation fails.
b) In the meantime lawyers are instructed to get instructions and mandate from their
clients on the proposed settlement.
c) On the mediation date, the case for mediation shall be registered in the mediation
register book.
d) A separate mediation file shall then be opened and the presiding Judge will then
swap the mediation files with his or her colleague. The Judge will then try to mediate the
case to encourage settlement.
e) If parties in the said mediation manage to come to a settlement, a consent judgment
will be recorded. If no settlement has been reached, the case will then be transferred
back to the original presiding Judge for full hearing.
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Mediation by a Mediator Agreeable by Both Parties
At any stage of the case, parties may opt for a private mediator to mediate their
dispute in hand. A mediator may be chosen by the parties from the list of certified
mediators produced by the Malaysian Mediation Centre (MMC) or any other mediator
agreed by them. Once appointed, the mediator shall then facilitate negotiation between
the parties with the aim of finding mutually acceptable solution to the dispute.
As a safeguard and to prevent the case from being further delayed by the
mediation process, a return date of 1 month shall be fixed for the parties to report on the
outcome or the progress of the mediation. The mediation shall be completed within 3
months from the referral date to the mediator unless with the leave of the court.
Special Issues In Mediation
From the programme book. I gather that there will be a session afterwards for the
participants to discuss the challenges in conducting Mediation. In this connection, I wish
to discuss two special issues relating to mediation which I think maybe of the assistance
to the participants in the mediation process.
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a) Dealing with the proposed “outside the range settlement”
In a mediation, there would be instances that parties are about to settle on
something which is outside the range of usual settlement. The “range” varies from
precedents of decided cases, normal convention or standards or a simple
commonsense. A classic example of out of range settlement is when a plaintiff in a
motor vehicle accident case is willing to settle with substantially or unreasonably less
amount of claim or to part with certain claim e.g. pain and suffering.
There are a few contributing factors to this problem namely lack of advice,
emotional stress (especially in accident and family matters), financial difficulty and
ignorance. These will put a party in a weaker situation than his or her opponent.
In facing these situations, a mediator have to fall back to the basic role of being a
mediator namely to assist parties to come to a mutual agreement for amicable
settlement. It is not our function to protect the interest of any party. Parties in “outside
the range settlement” have various reasons to come to the decision. Some may want to
achieve finality to the dispute and the stress of litigation and carry on with their lives.
Parties in commercial disputes may want to avoid public embarrassment or bad
publicity despite having a big chance to win the legal battle.
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Nevertheless, there would be instances which warrant intervention by the
mediator. The question is how does a mediator intervene while at the same will be likely
to be seen by the parties as impartial?
There are 2 approaches which can be taken
namely the “sign them up” approach and strong interventionist approach or better
known as “let me tell you” approach. Using the “sign them up approach” the mediator
simply inform the parties to seek independent legal advice and otherwise do nothing
and to allow them settle on their intended terms. The interventionist, as the name
suggest requires the mediators to advise parties directly on matters which they have
overlooked or forgone.
Involving Children In Mediaton
In a mediation, especially in family disputes, children are not parties in the
mediation nevertheless they are the person directly affected by it. There are various
approaches to the involvement of children in mediations involving their parents :
a) No involvement at all. – the parents are responsible for any
communications to the about the process and its outcome. This is the common
practice whereby the supporters of this method is of the view that children in
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their tender years should be not be involved in the confrontation of their
parents and should not be burden with the decision making process.
b) Involvement after mediation has been concluded - where mediator, with
or without the parent’s consent inform the children the outcome of the mediation
and the implication on them.
c)
Partial involvement – the views of the children on the parenting
arrangements are derived either in joint or separate session. Nevertheless the
children have no role in the final decision making.
d) Full involvement - the children are involved in all stages and acpect of the
mediation.This option is very rare and shall be restricted in cases where the
children who had reached significant maturity. In order to exercise this option, the
consent of the parents and mediator is a condition precedent prior to the use of
this method. The mediator must also be trained for that purpose and must
provide appropriate facilities
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Conclusion
Summing up, although mediation in Malaysian Courts is still at its infancy stage,
it had shown promising result in helping the judiciary in disposing cases.
The
achievement of 41% settlement rate is a good sign taking into consideration the time
taken and lack of facilities and experience of judges and judicial officers in mediation. It
is also my observation even though in some cases mediation failed, it certainly helps
parties in dispute to have better appreciation of their own case and that of their
adversaries’.
Even though mediation may fail but having gone through mediation
process, parties may decide to narrow down issues and may agree on certain fact. By
so doing, the trial time can be considerably reduced.
Thank you.
The Rt. Hon. Tan Sri Arifin Bin Zakaria
Chief Judge of Malaya.
Federal Court of Malaysia.
1st October 2010
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