According to New Oxford English-English-Malay Dictionary (2000, p.495), mediation is a noun for the word mediate. The word mediate was defined as a “verb as mediate (in something) (between A and B) to try to end a disagreement between two or more people or groups.” From another dictionary, the Oxford Advanced Learner’s Dictionary (2018), the word mediation literally means “attempts to end a disagreement between two or more people or groups by talking to them and trying to find things that everyone can agree on.” Meanwhile, mediation is defined as an informal process to resolve a dispute without the hostility which the litigated parties meet in a confidential setting to work out a solution with the help of a neutral third person, the mediator. The mediator may help each other by giving advice or optional settlement and the disputing parties are not bound to accept the solution. The mediator works to create a calm atmosphere and lessens the temptation by giving equal opportunity to both parties to speak out.
Meanwhile, based on the Nolo’s Plain-English Law Dictionary (2018), the term ‘civil cases’ can be described as “a non criminal lawsuit, usually involving private property rights.” For exemplary, the filing of lawsuits for injuries under torts cases. In Malaysia, civil cases have arisen rapidly for the last decade. It can be settled through courtrooms and litigations. Besides, there are also several alternative dispute resolutions provided in our country to settle the civil cases. Recently, people are starting to use the alternative dispute resolutions available in our country to settle the disputes in civil cases and the most preferable is mediation. Mediation has been gaining attraction for the last decade as the achievement accomplished from resolving matters through mediation have increased the number of settlements. In a Malaysian Bar article titled Mediation Relief for Courts by Jennifer Gomez, the author stated that in the launch of the Kuala Lumpur Mediation Centre, the then Chief Justice Tun Zaki Tun Azmi on August 2011 said that the statistics showed that the success rate of court-annexed mediation between January-June 2011 at the trial courts was 52% and at the Court of Appeal was 15%.
There are four types of mediation currently practiced in Malaysia namely, first, the facilitative mediation where it aims to enhance the negotiation process. Second, evaluative mediation when the mediator brings along a professional expertise to advise the parties. Third, the transformative or therapeutic mediation, which it applies professional therapeutic strategies in assisting the parties and lastly, hybrid, which in this type of mediation a mediator has two tasks, as a facilitator and neutral evaluator to the participators’ lawful interest. (Nora, Umar, Nurah, 2016, p.76)
The legislation that govern all types of mediation in Malaysia are Practice of Direction No. 5 2016 for court mediation and Mediation Act 2012 for private mediation. Court mediations consist of two distinctive categories. Firstly, the court assisted mediations, in which the court helps the parties by ordering them in meeting a third-party mediator and second, the court-annexed mediation, whereby a judge is in charge for the mediating procedure.
As mediation is adjutant, certain people insist on bringing some disputes that are easier to be resolved through mediation to the court of law. Subsequently, this has caused the backlog of cases as in court cases which are lengthy and have complicated procedures to follow in the litigation process. The overall number of judges which is small and low contributed to the issue here. This is supported by a progress report entitled Malaysia Court Backlog and Delay Reduction Program (2011) which shows that the judge-to-population level is 2.4 per 100,000 citizens in Malaysia. The number of the judges is insufficient to the population of the inhabitants in Malaysia. One of the solutions that can help in solving this problem is through mandating mediation in civil law cases
The mandate of mediation has been applied in certain law such as in civil family cases under section 106 of the Law Reform (Marriage and Divorce) Act 1976 for the people who wishes to apply for dissolution of marriage and also in Sulh, based on a study by Sa’odah & Nora (2010). Sulh is also known as the mediation in Islamic law has been mandate under Sections 94, 99 and 131 of Selangor Syariah Civil Enactments 2003 due to its benefits and efficiency in solving disputes. After the mandate of Sulh, the Syariah Courts of Selangor successfully settled the issues and also organize the court’s calendar as the bulk of cases has been reduced. Thus, it is firmly believed that mediation should be mandatory in civil cases because it preserves the relationship of both parties, produces cost-effectiveness economically and is user-friendly in sense of time.
First and foremost, mediation is believed to preserve the relationship between both parties. Relationships are needed to be conserved in order to continue the interest in business or to save family ties. Parties who are having disputes in normal cases will end up in a bad term as the matter was not settled in a proper way. When settling in courts, for instance, the process of solving the arguments will complicate the relationship between the two parties. This is because the long and tiring procedural will tear the parties apart and seldom they have the urge to cleanse the issues between them after having to go through the exhausting litigations. The relationship that had been built for a span of time is ruin and the parties will not be able to start over it. As been described by Chief Justice of the Supreme Court Warren Burger, the difficulty in the conventional legal system is that the excess of lawsuits have created an unendurable and unwise use in term of monetary, time, and psychology (Christina M. Dines, 2017).
By mediating, the matters that arise between the parties will only be known to other people that they wish to disclose it to. Mediation is a solution for the people who want it to be solved with confidentiality. Take one example as in section 54(1) of the Industrial Relations Act 1967 which provides that only the written agreement made by the parties shall be present before the court and all evidence gathered from the conciliation such as negotiation should not be disclosed (Mohamed, 2014). This shows that if the parties seek to resolve the conflict in full privacy mediation shall be the option as it is protected by the law itself. The mediator himself is someone that was agreed and trusted by both parties to keep the matter from others. The parties could choose the qualified mediator from anyone they believe they could rely upon. This will lead to an efficacious mediation that could lead the parties without any dissatisfaction afterward.
In the case of Norhayati binti Onn v. Mohd Sufian bin Abdul Aziz, the applicant applied to settle her matter in chambers and not in court. Her grounds were that she held a post as a senator and her father was a respected figure with a high ranked position. Rejecting the request, the court believed that all cases should be treated equally regarding the reputation of the people and so. The applicant sought for mediation as she believed that she could keep the matter disclose from the knowledge of the media if the matter proceeded through mediation. This is because mediation is known to keep the confidentiality of the issue in the circle between the parties and the mediator.
Furthermore, the parties affiliating could sustain and conserve their relationship as the parties get the opportunity to open up their feelings freely and come out with the solution that in the favour of both parties. This is because the purpose of mediation is to provide remedies for the parties and not to fight over it. Based on an article in the Malaysian Bar website titled Mediation Relief for Courts by Jennifer Gomez (2011), The Bar Council president Lim Chee Wee while representing the bar in supporting the launching of Kuala Lumpur Mediation Centre said that “Positive changes are being introduced to the administration of justice. As litigation lawyers, we are not here to litigate per se, but to provide a solution.”
One of the main aims litigations in civil cases is about winning and losing thus, the parties are dragged in the situation that caused uneasiness on them. In contrast, solving civil cases by mediation will be focusing on finding ways to clear up the conflict between the parties and not in winning. By the end of the day, the parties are settled with a win-win resolution as the decision-making process is in their power and they are not been influenced by anyone in doing it, not even the mediator as the mediator is there to assist the flow of the negotiation and not giving his opinion. This cannot be achieved in litigations and arbitration process in court as the parties had no opportunities to speak up and give their point of views. On the other hand, in the method of arbitrations, the arbitrators were given the opportunity to advise the parties.
The preservation of relationship can be achieved even after having disputes by settling the disputes through mediation. This is because it is held in a private seating which could ensure the confidentiality of the issues and they could make the decisions on their own without being induced by others in the process.