 |
| This paper on our blogsite was published in The Edge, Dec 6, 2021, with minimal editorial changes. |
MEDIATION as a means to resolve disputes is not new. It has been practised in the ancient Greek and Roman civilisations. It was also commonly employed in India, China and neighbouring Japan and Korea. Different words had been used to describe the practice and, in each area, local beliefs have had an influence on how it was carried out. In the East Asian region, for example, Confucianism had a strong influence.
Mediation was being used to resolve disputes in Peninsular Malaya prior to the introduction of laws and the judicial system by the British in 1807. Indeed, the Malays, Chinese and Indians who resided here have been practising it since at least the 15th century.
The Malays used sulh (which in Arabic means “end of arguments or compromise”, translated as “conciliation”). The mediators were local chiefs (imam, penghulu and ketua kampung), administrators of specific areas or jurisdictions. They were appointed by the local people and endorsed by the Sultan.
Panchayat, practised by the Indians, centred around a village council of elders (usually numbering five) who were acknowledged by the community as a governing body. Brought from India, the system facilitated decision-making with regard to the social issues confronted by the villagers.
As for the Chinese, tiaojie (调节), which literally means mediation, was the primary mode of dispute settlement adopted by the early settlers. Used for thousands of years in traditional China, its theory and practice had been influenced by the Confucian philosophy. It was recorded in Malaya, for example, that a temple, EngChoonTohTeoGan in Malacca (1949), included mediation processes in its rules and regulations.
Justices of the Peace in colonial Penang: The office of the Justices of the Peace (JP) was a British creation. Eminent persons of communities were appointed as JPs to assist the Crown in the preservation and maintenance of peace of their communities. In Penang, a Straits Settlements state (1826-1948) under the British administration prior to Independence, JPs were appointed to mitigate the shortage of magistrates then. In addition to their statutory roles, the JPs then also acted as mediators in community conflicts and disputes.
RECENT DEVELOPMENTS IN MEDIATION IN MALAYSIA
Mediation has assumed some prominence in Malaysia of late. It is in this light that I would like to discuss the practice. The following are some recent milestone events:
Community mediation: This “alternative dispute resolution” practice was initiated formally by the Department of National Unity and Integration (DNUI) in 2007. The DNUI was previously under the auspices of the Prime Minister’s Department, as a mode to help residents of geographical communities (neighbourhoods) to amicably and promptly settle their differences and disputes. Apart from preventing conflict, it also aimed to foster better inter-ethnic and intra-ethnic relations. Since then, the DNUI has been training “community mediators” to serve their respective Rukun Tetangga (RT) sectors throughout the country.
Rukun Tetangga (RT) Act 2012: This Act underscores the role of the “community mediator”. Section 8 stipulates that RT sector committees are “to provide community mediation for the purpose of conciliation or otherwise settle any dispute or difference amongst the members of community”, that is, within their neighbourhoods.
Mediation Act 2012: This piece of legislation was enacted as “an Act to promote and encourage mediation as a method of alternative dispute resolution by providing for the process of mediation, thereby facilitating the parties in disputes to settle disputes in a fair, speedy, and cost-effective manner and to provide for related matters”. It governs the conduct of mediation in Malaysia, particularly ad hoc mediation whereby parties to a civil or commercial dispute voluntarily submit their dispute to be mediated without or prior to commencing litigation in court.
Practice Direction on Mediation 4/2016: This “practice direction”, issued by the Chief Registrar of the Federal Court, was aimed at encouraging disputing parties to choose pre-action mediation or to seek amicable settlement before trial or appeal. By this Direction, the courts may now also refer the disputing parties to appoint a mediator or mediators to undertake court annexed mediation as directed by the judge or magistrate during pre-trial civil case management. As per Paragraph 5, the modes of mediation could be conducted (a) with the judge leading it (b) via the Kuala Lumpur Regional Centre for Arbitration (KLRCA) or (c) via other mediators agreeable by both parties. Mode 5(c) is categorised as other mediation institutions or ad hoc community mediation.
Covid19 Act 2020: The proviso in Section 9 mirrored the procedure laid out in the Mediation Act 2012 (MA 2012). It states that “any dispute in respect of any inability of any party or parties to perform any contractual obligation arising from any of the categories of contracts specified in the Schedule to this Part due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the spread of Covid-19 may be settled by way of mediation”.
Covid19 Mediation Centre: The subsequent creation of the “Covid19 Mediation Centre” reaffirms the government’s commitment to not only acknowledge the benefits of mediation but also assist the affected parties, particularly the lower income groups to resolve their disputes amicably, speedily and cost effectively. A timely test now is to gauge if there are sufficient trained mediators to undertake the unprecedented tasks. Though the Covid19 Bill 2020 is independent of the MA 2012, disputants are free to decide on their preferred mediation option via MA 2012. In this instance the JP Council community mediators are prepared and will avail themselves for national service when called upon.
With these new developments, mediation in Malaysia is no longer interpreted as an informal alternative dispute resolution process that is not binding by law. It is now enshrined as one of the processes of dispute resolutions in the Malaysian legal system.
COUNCIL OF THE JUSTICES OF THE PEACE, STATE OF PENANG
The Council of the Justices of the Peace, State of Penang, was established in 1962 to provide a platform for Penang JPs to coordinate and pool their resources to serve the local community more effectively. It is a registered entity with the Registrar of Societies. With no new appointment since 1990, the membership stands at 60 comprising eminent community leaders including retired senior civil servants, industrialists, merchants, accountants, medical doctors, surveyors, planters, corporate directors and other trade practitioners.
Transformation of council into a mediation institution: Due to changes in certain statutes after Independence, the role of JPs in Penang has been greatly diminished. Although Sections 98 and 99 of the Subordinate Courts Act 1948 allowed for the appointment of JPs as “second class” magistrates, no JP has thus far been given the position. Recent developments in mediation, however, have raised the possibility of re-engaging these community leaders, appointed by the state authorities, to act as mediators to resolve community disputes. They are ideal for the role.
Penang JPs have been involved in mediation since the 19th century. One notable example was Foo Tye Sin JP who acted as mediator in local community conflicts and disputes during British rule.
Some time in 2014, the JP Council received a paper entitled: “Transformation of the institution of Justices of the Peace of Penang” from High Court judge Yang Arif Dato’ Lim Chong Fong, then an advocate and solicitor in private practice. Inspired by the ideas outlined and convinced after meeting the writer in person, the council, at its 2016 annual general meeting, resolved to transform the office of the JP to include mediators. This is besides continuing with its limited statutory roles and functions. Consequently, the council’s constitution was amended to include mediation as one of its objectives. As a mediation institution, JP mediators can be appointed as ad hoc mediators pursuant to Part III of the MA 2012.
Mediation skills course: Pursuant to Section 7(2)(a), MA 2012, a mediator shall “possess the relevant qualifications, special knowledge or experience in mediation through training or formal education”. To secure recognition, competency and practical experience for its members, the council approached Ir Harbans Singh (currently panelist of the Asian International Arbitration Centre or AIAC). He in turn pitched the council’s proposal to the then Director of Kuala Lumpur Regional Centre for Arbitration (KLRCA), Datuk Sundra Rajoo, for support and endorsement. KLRCA has been renamed AIAC. The first JP-KLRCA (AIAC) mediation skills course was held in August 2016. Our collaboration with AIAC to train community mediators continues to this day.
COMMUNITY-BASED PHILOSOPHY
In line with a broad community-based approach, trainees for community mediators are both JPs and non-JP community leaders from diverse background including those from sectors like medical, legal, engineering, construction, finance, trade, commerce and other industries. Apart from the ad hoc mediation, two JP mediators have also served in the Penang High Court annexed mediation in 2016.
Mediation Bureau: As the mediation service involves non-JP mediators, the council established a bureau to allow it to be semi-autonomously managed. With the tacit support of the state government, the Mediation Bureau was officially launched by His Excellency, the Governor of the state of Penang, Tun Dato’ Seri Utama (Dr) Haji Abdul Rahman Bin Haji Abbas, on 20 July 2017. The bureau has a rented office located at the Caring Society Complex and has a panel consisting 25 JP and non-JP mediators (local community leaders) representing different strata of the community. Currently, the bureau provides pro bono pre-action mediation services to the local community. Pursuant to Court Practice Direction 4/2016 paragraph 5c, the council has offered to assist the courts in alleviating the burden of pending cases, particularly those related to community disputes.
Community mediation and social harmony: Community mediation serves as an important means to keep a community harmonious. They do so by resolving conflicts or disputes — no matter how petty — speedily before they develop into full-blown cases that eventually ended up in the courts. By having mediators within these communities, we are also empowering their leaders to manage their interests and well-being from within, apart from maintaining peace. Further, the JP Council’s idea of engaging local community leaders means that the people involved in the mediation processes are familiar with other on-the-ground issues that may help or hinder conflict resolution.
MOVING FORWARD
We are grateful to all the directors, past and present, of AIAC for their encouragement and support to train community mediators in Penang. The endorsement provided not only the necessary knowledge and skills but also a mark of recognition of their competency as mediators. Unfortunately, due to the pandemic and its related restrictions, the last scheduled training was aborted. Nevertheless, we look forward to bring the collaboration to the next level.
Community mediation symposium: An understanding with the state Department of National Unity and Integration Department (DNUI) to collaborate and share resources to serve the local community was established in 2019. With the DNUI endorsement, the JP Council successfully hosted a community mediation symposium on 10 November 2019. It was unfortunate that due to the pandemic, the scheduled MOU on 5 April 2020 was deferred.
Road map for promotion: In reaching out to the community at large, we have created a road map to promote, educate and disseminate the benefits of mediation within their own respective communities. Our first collaborator in this road map is Min Sin Seah, a century old local socio-educational organisation.
Accessible and affordable training module: Work is currently in progress with an institution of higher learning to design and develop a training module to make learning both easily accessible and affordable. Meanwhile, we are prepared to work with other interest groups or organisations for mutual benefits and professional advancement.
One-stop centre: In addition, we are striving to establish a state-level one-stop dispute resolution centre with the state government’s participation and support.
In sum, this low-cost and effective assisted negotiation between two disputing parties with the help of a neutral third party, is here to stay. It should be given much greater prominence to create greater social harmony and more empowerment to the community, especially its leaders.
- Dato’ Ong Seng Huat JP is Honorary Secretary, Council of Justices of the Peace, State of Penang. Read more about him here.
No comments:
Post a Comment