Judicial Mediation: The Roles of

Judges and Parties

Mohd Faizi Che Abu 24 May 2012 UKM

Caveat

Article 4 The teaching of this university is the supreme law of the knowledge and any knowledge gained during this session which is inconsistent with the teaching university shall, to the extent of the inconsistency, be void

JUDICIAL MEDIATION New Thing

Practice Direction No 5/2010 Effective August 2010 New Branding Building the Trust

Judicial Mediation based on Legislation

In New South Wales, Australia, this is provided for in their Civil Procedure Act 2005 (Part 4) (see Appendix A) and Uniform Civil Procedure Rules (Part 20) (see Appendix B

Rule of Thumb in Judicial Mediation

1. Confidentiality
2. Mediator must not be the same judge to hear the case

Preparation for Judicial Mediation

Type of cases

Notice for Mediation

Type of Cases

Notice for Mediation

This case has been referred for mediation. The above case has been set down for Mediation before The Honourable Judge Tuan David Wong Dak Wah at High Court III Kuching on the 6th day of November 2008 at 2.30 p.m.. Parties shall appear in person or by a representative who is authorized to discuss and make recommendations relating to settlement. Before arriving at the Mediation date, parties are to negotiate and make a good faith effort to settle the case without the involvement of the Court. Specific proposals and counter proposals shall be made

Notice for Mediation

Each party shall provide the Mediator, in confidence, a concise statement of the evidence the party expects to produce at trial at least 3 days before the Mediation date. The statements shall outline the settlement negotiations to date. The purpose of Mediation is to facilitate settlement of this case, if that is appropriate. It will be conducted in such manner as not to prejudice any party in the event settlement is not reached. To that end, all matters communicated to the Mediator in confidence will be kept confidential, and will not be disclosed to any other party, or to the trial Judge. The Mediator, of course, will not serve as the trial Judge in this case.

Notice for Mediation

The request for Parties personal appearance is intended to increase the efficiency and effectiveness of the Mediation, by reducing the time for communication of offers and expanding the ability to explore for settlement. It shall be the duty of each party, and its counsel, to fully analyze all issues pertaining to the Mediation, and it shall be the duty of the lawyer representing a party to notify the court, and opposing counsel, when a lawyer knows or has reason to believe that her or his client does not intend to participate in good faith in the

Shall We Start?

Opening Statement

Welcome to the mediation. My name is Mohd Faizi and I am a Magistrate of Kuala Lumpur.

I wish to make very clear that I am not and will not be the Judge who will be hearing this case if this mediation fails. A different Judge will do that. This matter has been referred to me for the purpose of mediation. There are no costs involved in this exercise except for my time and your time

Opening Statement(ctd)

I dont know how familiar you are with mediation. It is also confidential unless the law requires otherwise. Im bound by confidentiality and would ask you also to keep what is said during mediation confidential
dispute and take the matter to court, you wont be able to call me as a witness. If you do reach agreement and its reduced to writing, it serves as a useful record of what you have decided for the future. If you want your agreement to be filed in court, your lawyers can help you convert it into a document appropriate for the purpose

Opening Statement(ctd)

My role as mediator is not to establish facts or to take sides and decide who is right or wrong. I have nothing to gain from any particular outcome of the mediation. I try to be neutral and impartial. If either of you feels at any stage that I am not, please let me know At some stage during the mediation I will probably have a private and confidential session with each of you in turn. This will give you an opportunity to have a cup of coffee and to explore options for agreement in more detail and to assess any progress achieved

Opening Statement(ctd)

Could I ask you both whether you have full authority to settle today? These types of mediations usually last at least [three] hours. Do you have any time constraints? Theyre really basic courtesy rules. Mediation works best when people respect each other and give each other the opportunity to speak without interruptions. Do you have any problems with that?

Opening Statement(ctd)

It makes no difference to me who starts. Do we have a volunteer? If we do not, Abu, as you brought the matter to mediation first, would you like to start?

And Bob, rather than make comments during Marys statement, why dont you make notes of any points youd like to bring up later during the discussion period
And Mary, Ill ask you to do the same when Bob is making his statement. Bob, when you make you statement, could you do so as though I had asked

Facilitative Approach

that is offering no opinion on the merit of the case I will identify the issues with the counsels and parties. Once the issues are identified and agreed then I will urge parties to concentrate on those issues when deliberating

One Room Rule

Only put parties into one room if and when they are ready otherwise break it into two rooms Break the parties out into 2 different rooms.

Plaintiff to stay and then send the defendant to another room.

Hear first what the plaintiff needs to settle this matter with emphasis on the value of the case. Assure parties that I will only divulge information to the other side with their consent. So whenever we meet one side in private we get specific instruction as to what we can divulge. After hearing the plaintiffs needs, go to the defendants room and hear what he has got to say in respect to his or her needs in settling the matter. After that it is literally a shuttle diplomacy from one room to another. This is helpful to mediation work for the simple reason that we

Evaluative Approach

I see that it is getting nowhere, I use the evaluative approach but of course in a soft manner. Instead of saying that your case is so weak that you should settle, I would say things like these:

You know litigation is a risky business and how the Judge will decide is anyones guess.
If you do decide to settle you will save a lot of legal fees and time in court which you can use for other productive activities If you do decide to settle you will not be subject to questioning by your opponents counsel which I assure you that it is very stressful

Evaluative Approach (Ctd)

Even if you go to trial and win your opponent still can appeal. So the whole process will take time to finalize As you know I am not the trial Judge in this matter but if this matter is before me I would decide in this manner of course I would not tell the other side the strength of their case. Or sometimes I would say to the parties counsel How are you going to convince the trial Judge on this point which in my view is fairly weak. This may be embarrassing for the counsel but at the end of the day it is not his case but the case of his client

Practice of Judicial Mediation

Mediation Center Barter and Buddy System

Procedure at Mediation Center

Barter System
HMS A HMS B

SETIAP HAKIM AKAN MENENTUKAN KES-KES YANG SESUAI UNTUK DIMEDIASIKAN. SETIAP HAKIM AKAN MEMBUAT MEDIASI BAGI KES MASING-MASING

MEDIASI BERJAYA -STATISTIK PELUPUSAN AKAN MASUK KEDALAM HMS TERSEBUT

MEDIASI GAGAL -HMS AKAN PINDAHKAN KES TERSEBUT KEPADA MANA-MANA HMS YG LAIN DAN AKAN MENGAMBL SATU KES YANG SAMA DARI MASTER LIST

Buddy System
HMS A HMS B

SETIAP MAHKAMAH AKAN MEMBUAT SENARAI KES YANG BOLEH DISELESAIKAN MELALUI MEDIASI SEKURANGKURANGNYA 4 KES MAG A AKAN MEDIASI KES MAG B MAG B AKAN MEDIASI KES MAG A

MEDIASI BERJAYA -BAGI SETIAP MEDIASI YANG BERJALAN, MAHKAMAH MEDIATOR ( MAJ A) AKAN MEMBERIKAN SATU KES KEPADA MAJ ( B)

MEDIASI GAGAL -KES AKAN DI TETAPKANA BICARA DI HADAPAN MAJ ASAL KES TERSEBUT

a. a claim for RM30,000.00 for adultery a. better than washing dirty linen in open court in front of their children a. a consent judgment of RM15,000 to the wife a. Ego of parties a. Joint account

Case Study Divorce

Case Study

Family Dispute
a. the father and the son involving several properties in three different suits a. relationship between the father and son had completely broken down a. The end result is not fair- but the parties accept it

Case Study Land Grab

a. Claim against the State Government a. Mediation Fails a. Parties relook at the matters raised in the mediation a. Trial was conducted for a single issue only

Challenges Encountered

Whether the judge is in fact doing judicial settlement or mediation bearing in mind that mediation in its true sense involves a third party, who is impartial and remains neutral, assisting disputing parties to identify the disputes and to make decisions as to how to deal with the disputes and reach an agreement
Lack of time for judges to conduct meditation in view of their busy Court schedules As mediation is done on a voluntary basis, there is no incentive for parties to adopt mediation as an alternative dispute resolution

Challenges Encountered

Inability of the Courts to farm out mediation to private mediators. This is due to the fact that the public still consider the Courts as the venue for resolving disputes. Further private mediations understandably involve costs to the parties, while Court annexed mediation involves no costs The lack of understanding of the concept of mediation by the legal practitioners results in a lack of cooperation. Understandably it is difficult for legal practitioners to abandon their advocacy hat when acting for a client in a mediation exercise

Success Rate at KL Court Mediation June 2011-April 2012

Registration of cases Succesfully Mediated Send Back for Trial In Progress

306

85

117

104

Number of days saved

Months

Success Rate

85 x 3 = 255

255 divide by 20 working days

12 months 27 % not inclusive of in progress

NUMBER OF CASES REFFERED AND SETTLED BY MEDIATION

Since 2007 the Courts had saved 1,233 or 3.38 years of judicial time.
That figure is arrived at as follows: 411 x 3 sitting days = 1233days or 3.38 years of hearing days saved. Success rate of 44% (411/925 x100%)

Conclusion

IMPORTANT ELEMENTS IN MEDIATION

-THE LITIGANT MUST BE PRESENT -THE MEDIATOR MUST NOT BE THE JUDGE SHOULD THE CASE GO FOR TRIAL

-IT GOES BEYOND STATEMENT OF EVIDENCE/CAUSE OF ACTION/DEFENCE/EXHIBITS

-CONFIDENTIALITY -COST EFFECTIVE AND TIME EFFECTIVE

Role of Judges in Judicial Mediation

Observe Confidentiality Let the parties participate

Inform the party what they want to hear Provide alternatives & options Use evaluative approach as the last resort Stop the mediation if necessary

Record the judgment/consent soonest possible

Thank the litigants for cooperating regardless of
the result

Role as Counsel

Let the litigant participate

Understanding the concept of mediation

Duty to inform the Mediator if the litigant is not genuine

Role as Litigants
Good Faith

Willing to offer and accept Understand the concept of mediationwin is not always the best Willing to speak without the presence of the counsel

Special Thanks Datuk David Wong D

WahJudge of the High Court of Sabah & Sarawak Just John Clifford WallaceUS Court of Appeals (9th

Food for Thought

It should be stressed that mediation is not an inferior type of justice. It is a different type of justice. All studies of dispute resolution show that people greatly value quick resolution of disputes and the opportunity to put their case in the presence of a neutral person. Mediation satisfies both requirements. Chief Justice Marilyn Warren of the Victoria Supreme Court

Thank You
faizi@kehakiman.gov.my 0123132414

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