65pc success in mediation cases: Yet 99pc cases opt for full trial

Daily Express

a day ago

65pc success in mediation cases: Yet 99pc cases opt for full trial
Kota Kinabalu:
Only one per cent of court cases are sent to mediation - an alternative dispute resolution (ADR) mechanism - despite it helping to resolve 65 per cent cases without needing a trial which helps clear the backlog of unfinished cases.
This was among topics discussed by senior judges, lawyers and mediation experts at a recent conference on Global ADR Horizons organised by the Borneo International Centre for Arbitration and Mediation (Bicam), here.
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'Mediation works in 25 to 52 per cent of cases across different courts, but judges are only sending a pathetically low 1-1.5 per cent of all cases to mediation,' said former Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah.
The Bicam Chairman shared his own experience with mediation, remembering how lawyers first saw it as bad for business when it started over 20 years ago.
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'The lawyers' reaction was that mediation was stealing our work,' he said.
His view changed when he became a judge in 2005 and was drowning in unfinished cases.
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After taking required mediation training, David tried his first mediation, a property fight between a father and son. The experience was eye-opening, but not in a good way.
'After about two hours, I think both sides were getting nowhere. And the father just suddenly got up. He said, 'Judge, whatever you say, I agree'.
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'That is not mediation. When people come before a judge, they think the judge will decide for them. That is not mediation,' he said.
This experience convinced him that judges and court staff think very differently from real mediators, they approach problems in completely different ways.
'The mindset of a judge and legal officers are completely different to what we call real mediators,' he said.
Now working as a private mediator, David admits he still benefits from being a former judge, but notes the difference.
He also pointed out the need for better public awareness about mediation.
'We try to connect with, for example, developers' associations and tell them, do you know there is something called mediation? Many say they had no idea,' he said.
For major construction disputes worth millions, David said the mediation fees of RM5,000 per day would be tiny compared to potential legal costs and the value of solving things quickly.
Kuala Lumpur legal firm Samrith Sanjiv & Partners Managing Partner Samrith Kaur, who works as both an arbitrator and mediator, agreed with David about the intimidation problem.
'There is definitely an intimidation factor when a judge sits as a mediator. No denying that,' she said.
'People feel that the judge knows best, that the judge has the power. He knows the facts and the law.
'But on the flip side, sometimes you need someone with authority to help parties reach a conclusion,' she said.
She said success often depends on how well lawyers prepare for mediation.
'If lawyers are well-trained in mediation, it is good because they will prep their clients. But if they are not, then there are problems. And when you come out, it is no longer a win-win situation.
'There are two types of mediation. One is facilitative and the other is evaluative.
'Lawyers should know whether they want facilitative mediation where the mediator helps parties talk to each other, or evaluative mediation where they need a judge to assess the situation,' she said.
On how mediation relates to other ways of solving disputes, Samrith said mediation both works alongside and competes with court cases and arbitration.
'It works together when the court sends cases out or gets another judge to handle the mediation.
'It also keeps things private and preserves relationships,' she added.
'Courts do not come up with creative solutions. They just follow what the law says. Mediation is very flexible, so the outcomes are flexible too.
'You can see parties apologising to each other. Sometimes people just want an apology. We do not see that in arbitration or court cases,' she said.
She said timing matters, noting that mediation can happen at different stages before legal action to preserve relationships, after filing when issues are clearer or during court proceedings when parties are tired of the process and rising legal bills.
Hong Kong's Mediation Chambers Mediator, Alix Povey provided an international perspective, sharing how their jurisdiction has developed court-annexed mediation over the past two decades.
'Our history is quite similar to Malaysia,' she said, pointing out how Hong Kong initially had informal mediation in the early 2000s before formalising it through the Mediation Ordinance in 2013.
'The Hong Kong experience revealed the important role of lawyers in mediation success. When Practice Direction 31 was introduced, making mediation virtually mandatory with cost consequences for unreasonable refusal, the results were telling.
'There were two camps in some ways, the really pro-mediation lawyers and others who maybe did not understand it. They thought they were going to be losing their business if you go to mediation,' she said.
She said Hong Kong's latest numbers from their trial settlement programme showed how much lawyers influence the outcome.
'Of 541 cases that went to mediation, 329 settled overall. But the breakdown showed 247 cases with legal representation settled, while only 16 cases without lawyers reached agreement.
'You can see the huge difference between having lawyers as part of the process and not having lawyers. Whereby 75 per cent were settled with lawyers as opposed to four per cent,' she said.
She also pointed out that certain types of cases lend themselves better to mediation.
'I personally think that family cases really lend themselves to mediation, because we go back to that win-win situation.
'You do not want family members fighting each other.
'If they go to court, they will just want to destroy one another. But with mediation, you can help them reconcile and get along again.
'Things like fraud and criminal cases cannot be mediated. Or if you need the court to set a legal precedent, then it should probably go to trial,' she said, pointing out which cases are not suitable for mediation.
Special Officer to the Chief Judge of Sabah-Sarawak Dr Melissa Chia offered the perspective of someone who has conducted countless mediations within the court system while developing innovative approaches to overcome its limitations.
'I did not choose to become a mediator on my own. Judges would send cases to me. My first boss was Tan Sri David and he was the one who taught me how to mediate,' she said.
Melissa has found ways to deal with the intimidation problem that other speakers pointed out. She purposely changes how she looks and acts during mediation sessions.
'I would tell them I am not acting as a judge today. That is the first thing I would say when they came to see me.
'I would wear colourful jackets instead of the usual black and white court robes. I would say, my name is Melissa, please just call me Melissa.
'Today, I am not a judge, I am nobody special. I am just someone helping you work things out,' she said.
She has come up with creative ways to handle family disputes involving children.
'With the children, I use drawings. I draw with them. In one case, I actually played hide and seek with a girl before she felt comfortable enough to tell me what was bothering her,' she said.
'Mediation is not just about finding a quick fix or deciding how much someone should pay and calling it done. To me, mediation is about rebuilding relationships. We need to understand what is really troubling people,' she said.
She shared a story of one of Malaysia's biggest mediation wins, the longest Native Customary Rights case that involved 300,000 pages of court papers and dragged on for 15 years before being solved through court mediation.
'Every day in court, everyone was protesting outside. But guess what? The case was settled through court mediation. The parties were so happy that afterwards, they were celebrating outside the court. They even built a statue to represent making peace,' she said.
Melissa linked this success to local traditions, pointing out that among Sabah's native communities, the old concept of Sogit means making peace, fixing what is wrong and keeping the community in harmony.
'We do not want the native people to think of Sogit as punishment, but as a way to make peace instead,' she said.
'If you ask me whether courts should send all cases to outside mediators, I would say maybe we can work together. We need a balance because not everyone can afford private mediation.
'Everyone, from the people in court cases to the lawyers, needs to understand what mediation really is and why we do it in the first place,' she said.