(i) What is Mediation and how is it different from Litigation or Arbitration?
Mediation is where a neutral, impartial and independent third party, in this case a Mediator, facilitates and assists resolution of disputes through a structured process by assisting the parties systematically to isolate the issues in dispute, develop options and reach mutually acceptable resolutions which accommodate the interests of all parties.
In a litigation or an arbitration action, the parties would retain lawyers whose focus would be to prepare a case which will result in the best decision for their client as adjudicated before a Judge or an Arbitrator.
Often, litigation or arbitration would be based on an adversarial approach, which may include demeaning the other party. In litigation or arbitration, parties remain unsure of the outcome until the case is ruled upon by the Judge or the Arbitrator. There are no guarantees that anyone will come out as the 'victorious party’ meaning that parties have little or often no control over the outcome of the case.
Mediation, on the other hand, is based on the principle that people are capable of resolving their own disagreements if provided with the proper methodology and the right guidance.
Generally, mediation is non-adversarial and all information in mediation would be shared by parties in a safe, neutral environment.
Mediation is a voluntary and confidential process. Either party can withdraw or choose not to participate at any time.
The Mediator is not there to judge who is right or wrong, but works with the parties to help facilitate a practical and effective resolution to satisfy the interests of both parties. The Mediator does not represent either party.
Generally, the mediation includes lawyers in a consulting or reviewing capacity if all parties are agreeable to the same.
(ii) When is Mediation Useful?
Mediation is most effective when both parties desire to resolve a disagreement voluntarily.
Mediation is particularly most effective when:
- The dispute involves strong emotional feelings
- The parties know each other
- The parties want to maintain their relationship
- Either party is uncomfortable confronting the other side
- The parties have reached an obstacle in their discussions
- One or both parties want to avoid costly legal litigation
(iii) Who Should Consider Mediation?
Mediation works best for parties who wish to settle their disputes without going to Court and who are willing, in good faith, to commit the effort to resolve their disputes.
Mediation is especially effective when the parties wish to continue an amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a Judge or Arbitrator deciding their dispute. Mediation also allows parties to control the amount of information that becomes a part of the public record.
(iv) What are the Most Important Aspects of Mediation?
Aside from low cost and high success rate, Mediation provides four important aspects.
The process of mediation is confidential and this confidentiality rule binds all participants, including parties, their lawyers (if any) and the Mediator. Everything discussed in the Mediation is confidential. Any documents that are exchanged in the Mediation are confidential. Any legal or other suppositions advanced in the Mediation are confidential. All offers and proposals for settlement that are made are confidential. Mediation is not a matter of public record.
No judge will decide the outcome of the parties’ dispute. There is no higher authority scrutinizing right or wrong in a Mediation. Mediation allows the parties a unique opportunity to "tell their side of the story", without solicitors objecting to the admissibility or relevance of any statement. The parties have the experience of creating their own resolution of their disagreement.
Most relationships are important to maintain intact, regardless of whether they are business partnerships, family, friendships or social relationships of long standing. Relationships are often soothed and preserved as a result of Mediation.
The Mediation process encourages the parties to assume personal responsibility for their respective roles in the dispute. Mediation discourages blaming the other party but rather focuses on accepting ownership for the things contributed or done to create the dispute.
Resolution for most disagreements is usually achievable within a working day or two. More complex disputes and conflicts may require more time and communication to explore the interests and positions involved.
(v) Who Wins, Who Loses in a Mediation?
No one loses and everyone wins in a mediation. Whatever is agreed upon is mutual and neither party is forced to agree to anything which they do not want to agree to. However, in most mediations, parties do achieve closure or resolution of their disputes by way of healthy compromise.
(vi) When is the Best Time to Mediate a Dispute?
The best time is sooner rather than later, ideally prior to the parties incurring the expense and emotional turmoil of litigation and/or arbitration. A Mediation can be commenced at any time provided both parties to the dispute are agreeable to have the matter Mediated. If legal representation has already been secured, it is still not too late. Most disputes can be settle before going for trial/arbitration, so it's almost never too late to mediate. Most legal professionals and Courts do advise parties to explore Mediation before litigation.
(vii) Who can Request Mediation?
Anyone can request Mediation. Mediation is available to everyone with a dispute who voluntarily seeks resolution or closure of that dispute.
(viii) During the Mediation, What Does the Mediator(s) do?
Generally, most Mediations are conducted by a single Mediator or two Co-Mediators who, in joint and separate sessions, assist the parties resolve their differences by:
- establishing the purpose, structure and guidelines of mediation with the parties;
- creating a comfortable environment for communication;
- inviting parties to participate and share their thoughts and concerns;
- helping identify key issues that parties need to address and interests influencing issues in dispute;
- facilitating an effective negotiation process;
- sorting out personal and emotional impasses and position obstacles;
- helping parties brainstorm solutions with each other and think through their options and their implementation; and
- helping draft and finalize a Resolution Agreement for signing by both parties.
(ix) How Long Does Mediation Take?
The length of the Mediation process is determined by a variety of factors including but not limited to the complexity of the issues, the technicalities involved, the complexity of the relationships, the number of participants, the cooperation of the parties, and the readiness of the parties to explore a mutually satisfying resolution.
Most Mediations are concluded within a day. Some can take more to reach a mutually agreeable resolution. Prior to the Mediation, there will be a Pre-Mediation Conference between the Mediator on the one hand and the parties and or their lawyers, on the other, to deal with and clarify matters preparatory to Mediation.
(x) Why use Mediation if Parties are Unable to Agree?
Most times it is not so much as parties ‘not wanting’ to agree but more that the parties are unsure of ‘knowing how’ to reach an agreement. A Mediator can bring a new perspective based on the Mediator’s own experiences and knowledge which may assist parties in exploring alternatives that they might not have previously considered or even thought of.
(xi) Do I Need to Engage a Lawyer to Mediate?
Parties may or may not want their Lawyers to be present at the Mediation. It is a choice which is usually discussed and agreed upon between the parties prior to the commencement of Mediation. Some parties prefer to decline legal consultation and feel comfortable speaking for themselves which others, especially where complex issues are involved, feel more secure with their Lawyers being present with them.
Most parties in Mediation prefer to have a Lawyers to consult, to assist or to answer any questions which may arise during the Mediation. In addition, a lawyer may be able to provide clarification to the Mediator or even to provide another perspective to the dispute. The lawyer may also assist to prepare and/or review the resolution agreement to be sure it accurately describes the agreement reached, is clear, valid and enforceable.
(xii) If I do not have a Lawyer, can I bring someone to assist me during the Mediation?
Yes, so long as there is no objection from the other party. As with a lawyer, the Mediation ‘assistant’ maybe present to help you fully understand what takes place and what is discussed at the Mediation session. Your Mediation ‘assistant’ (whether legally qualified or not) may not speak for you or on your behalf. Each party is required to present their own case in their own words to enable the Mediator to clearly define the issues in dispute and interests of the Parties.
(xiii) Is Mediation Legally Binding?
Yes, a Mediation will be legally binding if both parties agree upon a mutual resolution. The Mediation Resolution Agreement must be in writing and signed by both parties.
(xiv) If I Use Mediation, will I need to go to Court?
In specific cases, for example, in a divorce case, you may still need to file the requisite paperwork in court and obtain the required order.. However, if a mutually agreeable resolution has been arrived at via the Mediation Process as to the terms of the divorce i.e. in respect of all property, financial, custody, parenting and other issues, and the Court accepts the said terms of resolution, it is unlikely that you will have to make many, or any, court appearances. However, it is best to consult your Lawyer on whether or not your attendance in Court would still be required.
(xv) Must an Agreement be Reached in Mediation?
No party is forced to accept a solution that does not meet their respective interests and/or needs. The parties must appreciate that the goal of Mediation is to create a solution that comes as close as possible to a "win-win" agreement, while recognizing that parties may not receive everything on their wish list. If there is no resolution via the Mediation process, the parties may still go to court to resolve their disagreement.
(xvi) Can a Mediator be a Witness or Talk to the Judge?
No. All Mediation proceedings and what occurs, is said, or heard during a Mediation is Confidential and cannot be revealed by the Mediator, the parties, their lawyers and any person present at the Mediation or during any part of it.
Further, all Mediation proceedings and what occurs, is said, or heard during a Mediation is without prejudice. A Mediator cannot be a witness in Court Proceedings or talk to any other person about what occurred during the Mediation proceedings, nor can any other person who was present.
Additionally, neither the parties nor their lawyers may introduce into evidence before the Court as to what had occurred or had been revealed during the Mediation process.
(xvii) What should I know about a Mediator before appointing one?
You should approach hiring a Mediator just like you would any other professional. Speak with as many Mediators as you can to get a feel for their style and approach to the process.
In addition, you may wish to ask questions about the following:
- Training, experience and background;
- Experience or knowledge in mediating the type of issues you have; and
- Fees charged and how fees are to be divided among the parties to the Mediation.
(xviii) What are the Advantage of Mediation over Litigation or Arbitration?
- Timely resolutions
- Reduced legal costs
- Privacy and confidentiality of issues and parties
- Preservation of relationships
- Reduction of court back-logs
- Less intimidating process than litigation and arbitration
- No cross examination
- Control over the proceedings and outcome
- Opportunities for parties to express their interests
- Limited compromising of legal rights
(xix) How much does Mediation cost?
Along with your Mediation Request Form , you have to send MMC a non-refundable processing fee of RM106.00 (inclusive 6% GST).
The Mediator’s fee, which will have to be shared equally between the parties, will have to be negotiated directly with the Mediator. The cost of the hiring of the venue for the Mediation and the refreshments will also be borne and shared equally by the parties.