mediation MLJ

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56 of 82 DOCUMENTS © 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal Articles 2008 Volume 4 [2008] 4 MLJ xxxviii; [2008] 4 MLJA 38 LENGTH: 8590 words TITLE: Article: Family Mediation: Its Characteristics And Process AUTHOR: Nora Abdul Hak Assistant Professor Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia TEXT: INTRODUCTION Family law litigation can be said to be unique in so far as it rarely involves judgments solely concerned with matters of fact but is almost invariably complicated by the intense and intimate emotions of the parties in conflict. The use of the traditional litigation process to resolve family law issues in dispute has been much criticised. Where human relationships are strained, the adversarial approach may actually exacerbate rather than reduce conflict. The utilisation of other processes, such as counselling and mediation, independently of litigation or in conjunction with it, may lead to a more satisfactory resolution of disputes. Currently, mediation is regarded as the most widely recognised alternative disputes resolution method especially in family issues such as marriage breakdown, divorce, maintenance, custody of children and right of access. Furthermore, mediation can help cut cost and reduce the emotional trauma of parents undergoing the strenuous court proceedings. Thus, this article discusses mediation as an alternative process in resolving family disputes. It focuses on the characteristics of mediation and its process. FAMILY MEDIATION DEFINED Webley n1 described family mediation as 'a loosely defined term', as mediation aims to be responsive to the requirements of each individual, although, as pointed out by Webley, 'many academics and practising mediators have searched for a definition'. n2 It is to note that this definition is essentially the same as defined in general mediation except that it is applied in the context of family disputes. It is 'a process in which an impartial third person, the mediator, assists couples considering separation or divorce to meet together to deal with the arrangements which need to be made for the future'. n3 Because the parties discuss these matters face to face, family mediation is much better able to identify marriages, which might be capable of being saved than is the legal process. n4 Unlike current legal processes, mediation is a flexible process, which can take into account the different needs of families, and differing attitudes and positions of the parties. n5 From the above definition, it is submitted that a mediator's function is processual and the parties' role is decision-making. n6 There is a refinement of the above definition by the UK College of Family Mediators, which includes the term family breakdown hence taking into account those who have not yet considered separation or divorce. The inclusion of the phrase 'to communicate better with one another' clarifies the main role of the mediator. SUITABILITY OF MEDIATION TO FAMILY DISPUTES It is said that most family disputes are resolved within the family by negotiation, mediation, and sometimes by

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private adjudication. n7 In appraising the role of mediation in society, Fuller viewed that 'marital problems qualify on all counts for mediational solution'. He found that mediation had played and would continue to play important role in marital difficulties. n8 However, in assessing the suitability of any form of dispute resolution there are special characteristics of family disputes that need to be considered. n9 Sander had discussed characteristics of family disputes that led him to argue in favour of mediation, as compared to the adjudicatory process. Firstly, family disputes occur in family situations where there are continuing and interdependent relationships. Secondly, in family disputes the conflicts often involve a complex interplay of emotional and legal complaints. In such a case, it is sometimes difficult to discover the real issue in dispute. Thus, there may be a great need for an open-ended, unstructured process that permits the disputants to air their true sentiments. Thirdly, is the fact that marriage breakdown leads to disputes with frequent impacts on some family members who are not legally competent such as children. Obviously that requires special procedures and protections. Finally, the family itself represents a private ordering system that has the capacity for resolving its own disputes. n10 Davis G, et al, stated that mediation was much more likely to facilitate communication and so to leave parents in a position to manage future negotiations. When parents are concerned about the future of their children, they will co-operate better in mediation. n11 Family mediation, as defined has been seen as a more sensible way of resolving family disputes and as a civilised and civilising procedure, a process which returns to, or keeps control in, the couple. n12 In mediation the emotional and personal relationships involved in the dispute are acknowledged and the impact of the conflict on other family members, especially children is considered paramount, and thus, relevant to the process. n13 Furthermore, with the special nature of family disputes, mediation offers a more appropriate level of support, which focuses on problem-solving and private ordering. n14 Walker n15 points out that divorce is rarely easy, and almost always painful and distressing. It normally results in sadness, rejection, anger, bitterness, hostility and an overwhelming sense of loss. It has been said that interventions in matrimonial disputes has generally been regarded as unsuited to regulation by act-oriented rules; and suggested that person-oriented mediation is far better suited than such formal mechanisms, to the sensitive issues surrounding family disputes. n16 CHARACTERISTICS OF MEDIATION

(1) (2) (3) (4)

McCrory, n17explains that mediation has four fundamental and universal characteristics. They are: the neutrality or impartiality of the mediator; the voluntariness of the process; the confidentiality of the relationship between the mediator and the parties; and the procedural flexibility available to the mediator.

He then emphasises on the importance of these characteristics in mediation to the extent that if they are altered or if one or more is absent, then the process cannot be characterised legitimately as mediation. n18 According to him, the concept of neutrality or impartiality, which is the first characteristic, does not require that the mediator has no knowledge of the dispute or the substantive issues involved. In fact, he says, 'the quality of the mediation effort should be improved where the mediator has at least general knowledge about the subject matter of the dispute and the issues involved'. n19 Impartiality is central to the trust both parties must have in the mediator if his/her intervention is to be effective which depends on skill and knowledge, as well as on the personal integrity and commitment of the mediator. With regards to the second characteristic of mediation, that is, voluntariness, McCrory n20 views that mediation is premised on the principle that the parties are to make their own decision as they are in better position to know what is best for them. Marc Lampe n21 considers voluntary participation of the parties involved as one of important characteristics of mediation that differentiates it from other common forms of dispute resolution. Thus, mediation is consensual in which it does not involve any authority or compulsion. McCrory also considers the third characteristic, that is, confidentiality between the mediator and the parties as integral to the relationship and the cornerstone of the relationship of trust that must exist between them. n22 Marcus n23


categorises the confidentiality in mediation into two aspects; 'internal and external'. He refers internal confidentiality to a mediator's private sessions with each party. Hence, nothing of what he is told by any party will be revealed to the other party without express permission. While external confidentiality, he said, refers to parties' acceptance in the agreement to mediate that each of them will treat everything in the mediation as confidential. n24 Thus, it is understood from Marcus that, this characteristic of confidentiality in mediation requires both the mediator and the parties to trust one another, as this is important for the success of mediation. It has been pointed out that publicity about a conflict can harm public perceptions of the parties. Publicity about a dispute between an organisation and stakeholder, for example, may increase tension on their relationship and makes resolution of the dispute more difficult. It is to note that confidentiality is not absolute; hence, the parties must be given clear information about its limits right at the beginning of the process. n25 Cases involving child abuse and domestic violence will limit the confidentiality and justify a consequent interruption or termination of the process of family mediation. n26 If a mediator has reasonable grounds to believe that there is a case for child abuse he or she must report this to the concerned bodies or authorities. Thus, the mediation procedure must be stopped immediately. n27 The last characteristic, which is procedural flexibility, is important to ensure that the mediator is able to work in the environment that suit him best so as to achieve the best solution for the parties. n28 Boulle and Nesic n29 describe mediation as a highly flexible dispute resolution process. Mediation process is flexible because it can be conducted in a variety of physical settings, the procedure can be negotiated and adapted, additional participants can be involved for part of the mediation, and additional mediators can be added if necessary. n30 However, there have been criticisms of this characteristic of mediation. Raitt n31 stated that 'critics argue that the lack of a formal structure or procedural framework in the mediation process leads to inconsistency in approach and that the confidentiality and informal nature of the process does not provide a transparent record of the steps taken to arrive at the concluded agreement'. MEDIATION PROCESS The process of mediation, which uses certain techniques and procedures by mediators, have been described in many literature. n32 Although there are many different models, in theory as well as in practice, that exist under the label of mediation, it is important for the practising mediators to note, as pointed out by Mackie, n33 that:

the future of mediation will gain most if mediators live by their own counsel. Rather than taking 'positions' on different models of mediation practice, mediators need to recognise the richness within mediation practice and the potential to call on a variety of approaches, tools and techniques according to what is most uniquely appropriate for the parties, the context of dispute, and the mediator. Piper n34 described the writing of Haynes n35 on the process of mediation as the most influential on this topic. According to Piper, Haynes's text has provided the model for many mediation services in the USA in the 1980s. n36 He was also directly involved in providing the training to mediators in five projects of comprehensive mediation in the UK. On the mediation process, Haynes, n37 in his book stated that there are nine stages involved. They are; reorganising the problem; choosing the arena; selecting the mediator; gathering the date; defining the problem; developing options; redefining positions; bargaining and drafting the agreement. Douglas, n38 in discussing a practical theory of mediation that would bring together different views, referred to the various models of mediation process including Riskin's model. According to him, Riskin's model can be discussed in terms of the role of the mediator, that is, whether it is an evaluative role or facilitative. The evaluative mediator defines the conflict in terms of strengths and weaknesses of positions and likely outcome at trial. Evaluative mediator will study carefully pertinent documents and pleadings before the mediation. In contrast, the facilitative mediator uses different techniques in which he or she will not assess or predict outcomes, study relevant documents, or apply pressure to settle. Instead, usually the mediator will help the parties understand each side's position and the consequences of not settling. Parkinson, n39 in discussing the process of all-issues mediation, outlined the followings, as the stages involved in


this type of mediation; explaining mediation, engaging both parties in mediation; preparing for the first mediation meeting; the agreement to mediate; identifying the issues for mediation; gathering and sharing financial information; issues relating to children; exploring options; negotiating towards settlement; gaining the co-operation of children and others involved; drafting summaries of mediation; ending mediation; completing case records; and considering the outcome. In fact, Parkinson has provided detailed discussion for each of the above stated stages of mediation. It is noted that the discussion on the process of mediation has been dealt with in great detail in most of the writings on mediation, including the debates on which process is better than which. n40 As mediation, one of the forms of alternative dispute resolution, is relatively new, it is important that as much space as possible is used to explain how mediation should work in practice. As stated above that, there are many models of mediation process discussed, the stages of mediation outlined below, however, follow Walker's discussion of mediation stages. n41 (1) Engagement n42Walker n43 considered this step as a crucial o ne because it establishes a relationship between the parties and the mediator. n44 Such a relationship is important to facilitate the rest of the process. In this session the mediator should explain the purpose of the meeting, the framework designed to achieve the targeted purpose, the ground rules and the terms of participation. n45 Boulle and Nesic n46 emphasise on the importance for the mediators to establish trust and credibility as a specialist in dispute resolution and also to establish a positive and optimistic tone to the proceedings. Marcus n47 expressed that although it will have been included as a provision in the agreement to mediate, it is important for mediator in his introduction in the first joint session to reiterate that he has no authority to decide anything, whether it be question of fact or law, or the issues between parties. (2) Fact-Finding and Planning the Agenda As family mediation is premised upon an informed decision-making, the mediator needs to gather information including seeking clarification on certain points such as family composition, living arrangements and the steps that might have been made by the parties to seek a divorce or legal advice. n48 These help parties share the information with one another so that they can make informed decisions. McCrory n49 describes 'fact-finding hearing is normally informal, but provides the parties with an opportunity to present evidence and argument in support of their positions'. After gathering all the necessary information the mediator together with the parties will come up with the agenda for mediation. The recommendations contained in the fact-finding report are not binding thus; any party or both of them may reject them totally. n50 Haynes n51 explains:

The fact finding stage helps the participants to clarify the bargaining issues and to learn about each other's positions on the issues. Prior to these discussions, each has thought little about what the other wants, concentrating on making their own argument, rather than understanding the needs of the other. Hearing the other's version of the situation and the data the other brings to the mediation helps participants measure their own position more realistically. In view of the above, the Law Society n52 emphasises on the importance of careful listening and observation by the mediator to any signals that either party may give and by sensitive questioning during this stage. It is to note that in contrast to the parties in civil or commercial mediation, parties in divorce mediation mostly are not asked to make presentations of their respective positions, as Brown said, 'could well be contentious and inflammatory'. n53 Thus, the role of mediators at this stage is to encourage each party to express concern and to identify issues, and to clarify those appropriately. Then the mediator will proceed with setting an agenda in collaboration with the parties. (3) Exploring Options and Alternatives This stage involves mediators helping the parties to identify and to explore options and alternatives for them to discuss and negotiate in the next stage of the process. Haynes n54 expresses that parties are in dispute because they do


not perceive option for solution. Thus, they tend to view all situations in the same way, and their limited options prevent them from solving the problem without the help of a third party. The role of mediator in these cases is to help the parties to expand the range of options. According to Walker n55 during this part of process mediators need to be both facilitative and creative. She quoted Taylor, as describing the mediator, as 'a resource person, an expert who can suggest new options based on a more extensive knowledge and experience of divorce and its effects. (4) Negotiation and Decision Making Brown n56 considers this stage as the substantive stage of mediation. In this stage, the mediator helps the parties to communicate with one another and to negotiate acceptable terms. This requires the mediator to act both as manager of the process, keeping control of it, and as a facilitator, helping the parties to work effectively with one another in circumstances that are often very difficult between them. This demands various attributes and skills from the mediator, which can be both learned and developed. n57

(1) (2) (3) (4) (5) (6) (7)

Brown, H, et al, n58 explained a number of facets that this stage has which can be briefly listed below: option development; providing legal and other information; using communication skills; dealing with the expression of emotions; managing the process; helping with reality-testing; and facilitating negotiations and decision-making.

During the negotiation stage positions are modified, options are traded, and the give-and-take of negotiation occurs. Haynes, n59 pointed out that for negotiation to work it is important that the followings are clarified; all of the facts, an appropriately mutual definition of the problem, a range of options to solve the problem, and one or more options as their primary goal. It is important that during this stage mediators continue to listen effectively to the parties, watching for signals that may provide clues for creating settlement options. (5) Clarifying and Summarising Agreements At this state the mediator drafts a memorandum of understanding detailing the agreements reached and provides each of the parties a copy of the agreement. n60 In drafting the MOU n61 Haynes n62 views that, 'drafting the MOU is a simple matter when the mediator keeps track of the issues, the data, and each agreement the parties reach.' He then stresses that the agreement should be drafted in plain language so as it is clearly understood by each parties. n63 Parkinson, n64 however, argues, as experienced by many family mediators, that the drafting of mediation summaries is not a simple matter at all. The agreements reached in mediation should be recorded and copies be given to the parties who might then take them to their lawyers. As to the nature of this MOU, it is not a legally binding document. It is normally written in everyday language and as such should be open to modification as circumstances change. n65 Research in the UK and other countries has shown that some people who use mediation are disappointed when their agreements do not carry the same weight or authority as court-imposed solutions. n66 Parkinson, n67 for example, pointed out that many people who come to mediation, question the point of having MOU if it is not legally binding. She felt therefore that, these people want mediation to produce enforceable agreement, which has binding effect on the couples. In Europe, it has been recommended that 'States should facilitate the approval of mediated agreements by a judicial authority or other competent authority where parties request it, and provide mechanisms for enforcement of such approved agreements, according to national law'. n68 However, there are views, which do not consider that MOU should be binding as it is made without protection. In England, the Government's Consultation Paper on Legal Aid stated that:


Agreement reached in mediation are usually written down in the form of what has become known as a memorandum of understanding. Some couples may wish to seek legal advice on the merits of any agreements reached, although not all parties will necessarily wish to do so. It is further stated that for couples who qualify for public funding for mediation it is suggested that they pay their solicitors to draft the mediated agreement. n69 The Consultation paper stressed that, 'it would not be necessary for solicitors or other legal advisers ... To go over ground already covered in mediation, or, except in rare cases, to unpick understandings reached in mediation'. n70 (6) Review The review stage is for the couples to try out their achieved agreement and then to review them if it is necessary. According to Walker, n71 in England, the majority of those mediating their disputes seek independent legal advice before and/or after the mediation process. She found that mediators always encourage their clients to take the MOU to their lawyers for scrutiny. Such a practice, Walker said, can act as a safeguard against either party making agreements which could have unforeseen adverse consequences. n72 To this point, Brown n73 added that 'If lawyers are of the opinion that the MOU needs to be reviewed, it can be brought to another mediating meeting for discussion and if necessary, the respective lawyers can be invited to attend the meeting'. (7) Implementation and Reviewing Agreements This is the last stage of mediation process as outlined by Walker. n74 According to her, however, in most cases the mediation process ends with the review stage. It may in some cases a follow-up appointment may be arranged by the mediator in order to review the outcomes of mediation. n75 If the parties record their settlement agreement as an order of a court or if the mediator is appointed an arbitrator for the purpose of issuing a consent award, the settlement is immediately enforceable and a court may provide summary judgment. n76 In some cases the parties applying for consent orders may have to supply additional evidence before receiving the court's validation. n77 The enforcement of the agreement otherwise, will depend on whether the settlement agreement is a legally enforceable contract between the parties. Mediation may be used for various different kinds of family disputes that need to be solved. Brown and Marriott n78 states that, the most common subject matter of disputes in the family are issues consequent to separation or divorce of the couple. Family mediation is also available and used to help with other kinds of issues, such as, those between sibling, gay and lesbian couples, family business disputes, child abduction issues, and elder mediation. n79 In the UK until the late 1980s, the focus of family mediation has been primarily over issues of contact and residence of children following separation or divorce. n80 Financial and property and children issues occupied only about 20 per cent of mediated cases. n81 This phenomenon prevails as a result of the fact that the property and financial issues have been traditionally handled by solicitors and children and parenting issues were handled by professionals from the psycho-social professions. n82 Some mediators only deal with children issues and others cover the whole range of issues that may arise. Mediation that deals with the whole range of issues is known as 'all-issues mediation' which Webley described, as requiring greater attention on training for all mediators whatever their professional background. n83 TERMINATION OF MEDIATION PROCESS Family mediation may be ended by either party or by the mediator, whether or not any resolution is arrived at. n84 It will normally end when the parties have resolved their issues and a written settlement agreement is concluded. n85 It may end, however, without the parties reaching consensus on all issues. Article 18 of the WIPO Mediation Rules states:


The mediation shall be terminated by the signing of a settlement agreement by the parties covering any or all of the issues in dispute between the parties. Termination of the mediation occurs when the mediator later decides that further efforts at mediation are unlikely to lead to a resolution of the disputes. n86 Another form of termination of mediation is by written declaration of a party at any time after attending the first meeting of the parties with the mediator and before the signing of any agreement. n87 If during the process of mediation the parties decide to go to counselling or therapy, the mediation can be terminated or be suspended. n88 Mediation may also be discontinued because the couple have gone as far as they can or want to at that time, perhaps deferring any further discussion pending the happening of a certain event. In some cases, the mediator himself may initiate the termination. The mediator may decide to terminate the mediation process if he or she thinks that continuing the mediation is unlikely to result in a settlement. n89 In the case of abusive relationship if one party is in fear of another party and bargaining position will be unequal the mediator may terminate the mediation process. n90 Generally, mediators may stop the mediation if he believes any party is abusing the mediation process, the parties are proposing a result which appears so unfair that it would be a manifest miscarriage of justice, or that the actions of a party during the mediation have made it impossible for the mediator to proceed impartially. n91 OVERVIEW OF FAMILY MEDIATION IN MALAYSIA In Malaysia, the Legal Aid Bureau provides mediation services to its clients, which include mediation for family disputes, for both Muslims and non-Muslims. This is provided for under Part VA of the Legal Aid (Amendment) Act 2003, and the Legal Aid (Mediation) Regulations 2006, which include, among others, appointment of mediators, process and procedure of mediation, and matters that can or cannot be mediated. n92 There is also a code of ethics for mediators. n93 This mediation unit is headed by a director of mediation and has helped reduce the backlog of cases. It also saves time and is cost effective. The Bar Council in 1999 established the Malaysian Mediation Centre ('the centre') to encourage Malaysians to settle their disputes through mediation including family disputes. It is funded by the Bar Council, but those who use its services are required to pay the requisite fees for mediation. The mediators are drawn from a panel of trained and accredited lawyers, who are trained as mediators, as well as professionals from other fields. n94 Under this service anyone may approach the centre to request for mediation, and the centre would commence the process by appointing a mediator. Parties may either attend the mediation themselves or may be represented by lawyers. Parties may bring in expert witness. The mediator cannot subsequently be called up as a witness in court proceedings. The parties are not allowed to use any information given during mediation in any subsequent legal proceeding. The process may be withdrawn at any stage by the mediator or either party if it is felt that no benefit may be derived out of it and the parties are bound by any settlement agreement signed by them. n95 Currently the centre mainly handles commercial disputes. It has plans to handle family disputes in future. In the Shariah court of Malaysia, family mediation (' sulh') has been introduced in the Shariah Court of the State of Selangor. Section 87 of the Selangor Shariah Civil Procedure provides that the parties to an action are encouraged to hold sulh to settle their disputes. In this state, dispute resolution by mediation started its operation on 1 May 2002. Ten mediators were appointed to serve in nine lower courts and the High Court. A mediator or sulh officer is assigned to each of the designated courts. In implementing the Civil Procedure Rule ( Sulh) Selangor 2001, a Mediation Work Manual was organised for use by the mediators. This manual seeks to explain and standardise the procedures to be followed by the mediators in conducting the mediation. n96 In the Shariah Court of Selangor, mediation process can lead to settlement with just one meeting, depending on the abilities of the mediator and/or the nature of the dispute. Some mediators hold a minimum of two meetings, the first being the discussion and negotiation of the dispute, and the second being the signing of the agreement reached. This allows space for the disputants to discuss or give further thought on the agreement reached, before signing it. If a case is


complicated, then more separate and/or joint sessions may take place. n97 Cases that reach settlement within a short duration are those submitted under ss 23, 45 or 47 of the Islamic Family Law (State of Selangor) Enactment 2003, where disputing parties are present in court to file their claims. If they then agree to go through mediation, the process may start the same day. If there is agreement reached, the chairperson will submit it to the judge for issuing of orders. n98 In the Federal Territory Shariah Court, Sulh Unit was set up in April 2005 and four sulh officers were appointed to assist the parties to achieve a settlement. As from April 2005 to March 2006, there were 482 cases registered under the unit and 432 were resolved successfully. n99 CONCLUSION Mediation has become the main means of alternative dispute resolution for family disputes in many countries such as Singapore, Australia and New Zealand. In this relation, it is pertinent that any country/authority having the intention of improving means of family dispute resolution to consider the advantages and disadvantages of mediation. As discussed above, mediation is a suitable means for the resolution of family disputes. Disputes, such as, child custody and division of harta sepencarian can be dealt with more effectively through mediation. Mediation can help cut cost and reduce the emotional trauma of parents undergoing the strenuous court proceedings. It also provides a platform for the parties to settle their differences without going through the long court processes. Moreover, mediation process is voluntary where parents without their lawyers can sit together and try to reach an agreement. With all the positive characteristics of mediation, it is considered appropriate that these principles of mediation be deliberated in terms of their relevance and usefulness for the purpose of introduction and application into the Malaysian law with respect to family dispute resolution. The discussion of the characteristics and process of mediation shows that with relevant and appropriate deliberation, mediation in family disputes can be introduced into the Malaysian law for the non-Muslims in further improving the current law and procedures relating to family disputes.

Return to Text FOOTNOTES:

n1 Webley, L, A Review of the Literature on Family Mediation for England and Wales Scotland, the Republic of Ireland, France and the United States, prepared for the Lord Chancellor's Advisory Committee on Legal Education and Conduct, 1998, at p 16.

n2

Ibid .

n3 Lord Chancellor's Department, Looking to the Future, Mediation and the Ground for Divorce , HMSO, London, 1995, Cm 2799, para 5.4, at p 37 (will be abbreviated as the White Paper); In the UK College of Family Mediators: Code of Practice, para 1. 2, family mediation is defined as 'a process in which an impartial third person assists those involved in family breakdown, and in particular separating or divorcing couples, to communicate better with one another and reach their own agreed and informed decisions concerning some or all of the issues relating to the separation, divorce, children, finance or property'; see also, the discussion of the definition of family mediation in Parkinson, L, Family Mediation, Sweet and Maxwell, London, 1997, at p 5; Robert, M, Mediation in Family Disputes: Principles of Practice, Arena, Ashgate Publishing, 1997, at pp 4-7; Richards, C, The Expertise of Mediating, [1997] Fam Law, at p 52.

n4

The White Paper , para 5.4.


n5

Ibid , para 5.5.

n6 Webley, L, A Review of the Literature on Family Mediation for England and Wales Scotland, the Republic of Ireland, France and the United States, at p 16; Most of the literature emphasise on the role of the parties in making the decision for themselves and for the children involved. Folberg, H, Jay, Divorce Mediation - The Emerging American Model , in Eekelaar, John, M, and Katz, Sanford, N (ed), The Resolution of Family Conflicts-Comparative Legal Perspective , Butterworths, Toronto, 1984, at p 194 states 'mediation is a process of conflict resolution and management that gives back to the parties the responsibility for making their own decisions about their own lives'.

n7 Goldberg, Stephen, B, et al, Dispute Resolution; Negotiation, Mediation and other Process , Little, Brown and Co, Canada, (2nd Ed, 1992) at p 299.

n8

Fuller, Lon L, Mediation - Its Forms and Function , (1971) Southern California Law Review, 44, at p 330.

n9 Walker, J, Development of Family Mediation, in Information Meetings and Associated Provisions within the Family Law Act 1996 Final Evaluation Report , Newcastle Centre for Family Studies, 2000, at p 401 (hereinafter cited as the Final Evaluation Report).

n10 Sander, Frank, E, Towards a Functional Analysis of Family Process , in Eekelaar, J and Katz, SN (ed), The Resolution of Family Conflict - Comparative Legal Perspective, 1984, Toronto, Butterworth, at pp xii and xiii; see also, the characteristics of family disputes laid down in the 'Explanatory Memorandum' of the 4th European Conference on Family Law, para 15, at p 168.

n11 Davis, G and Roberts, M, Access to Agreement, A Consumer Study of Mediation in Family Disputes , Open University Press, Milton Keynes, Philadelphia, 1988, at p 151.

n12 Walker, J, Development of Family Mediation in the Final Evaluation Report, at p 402; see also, Philip, Wan, F, Mediating Family Property Disputes in New Zealand , Dispute Resolution Journal, New York, August 1999, Vol 54, at pp 70-79.

n13

Family Mediation in Europe (Explanatory Memorandum) , para 15, at p 168.

n14

Ibid .


n15

Walker, J, Family Mediation in Europe , in the 4th European Conference on Family Law Council of Europe publishing, 2000, at p 25.

n16

Fuller, L,Mediation - Its Forms and Function , (1971) Southern California Law Review, 44, at pp 330-332.

n17 McCrory, John, P, Environmental Mediation - Another Piece for the Puzzle , (1981) Vermont Law Review, Vol 6, No 1, at p 56; Marcus, S, Representing Clients in Mediation - New Professional Skill , Butterworths, 1998, at p 19 gives three fundamental principles that contribute to the mediation as a forum in which parties feel safe and free to explore their interests and possibilities of settlement. They are (i) mediation is voluntary; (ii) mediation is private and confidential; and (iii) mediation is conducted without prejudice to parties' rights and liabilities.

n18

Ibid , at p 51.

n19 Concerning the knowledge of the facts of the dispute, Madden, John, P, Recipe for Success in Construction Mediation , (2001) Dispute Resolution Journal, Vol 56, at pp 16-27, viewed that one of elements of the recipe for success in mediation process is that mediators should have an extensive grasp of the facts of the case.

n20 In his article, McCrory, Environmental Mediation - Another Piece for the Puzzle ', (1981) Vermont Law Review, Vol 6, No 1, at p 53, quoted the following definition of mediation used by the Institute for Environmental Mediation to show that mediation process is voluntary as the mediator does not have power to impose a settlement on the parties: Mediation is a voluntary process in which those involved in a dispute jointly explore and reconcile their differences. The mediator has no authority to impose a settlement. His or her strength lies in the ability to assist the parties in resolving their own differences. The mediated dispute is settled when the parties themselves reach what they consider to be a workable solution.

n21

Marc, Lampe, Mediation as an Ethical Adjunct of Stakeholder Theory , (2001) Journal of Business Ethics, Vol 31, at pp 165-173.

n22 McCrory, Environmental Mediation - Another Piece for the Puzzle (1981) Vermont Law Review, Vol 6, No 1, at pp 54-56; Morris, C, The Trusted Mediator: Ethics and Interaction in Mediation in MacFarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at p 332, considered confidentiality as important element in the mediation process. She states, 'This is to ensure that parties feel free to disclose all relevant information in mediation'.

n23

Marcus, S, Representing Clients in Mediation - New Professional Skill , Butterworths, 1998, at p 21.


n24

Ibid .

n25

The Family Mediation in Europe , at p 84.

n26

Ibid .

n27

Ibid .

n28

McCrory, John, P, Environmental Mediation - Another Piece for the Puzzle , (1981) Vermont Law Review, Vol 6, No 1, at p 56.

n29

Boulle and Nesic, Mediation, Principles Process Practice, Butterworths, London, 2001, at p 33.

n30 Ibid at pp 33-34; the use of two mediators in mediation session is called co-mediation. In the family disputes, in the UK both sole mediation and co-mediation models are used. Co-mediation is used particularly where a combination of different kinds of expertise is required.

n31

Raitt, Fiona, E, Informal Justice and the Ethics of Mediating in Abusive Relationships, (1997) The Juridical Review, 76, at p 78.

n32 Most of the literature discusses the process of mediation as their main topics, for example, Parkinson, L, Family Mediation, Sweet and Maxwell, London, 1997, at pp 125-158; Brown, H and Marriott, A, ADR Principles and Practice, Sweet and Maxwell, London, 1993, at pp 154-188; Roberts, M, Mediation in Family Disputes; Principles of Practice , Arena, Ashgate Publishing, 1997, at pp 109-125; Haynes, John M, The Fundamentals of Family Mediation , State University of New York Press, Albany, 1994, at pp 1-29; Walker, J, Family Mediation, in Macfarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing , 1997, at pp 66-70; Boulle and Nesic, Mediation, Principles Process Practice,Butterworths, London, 2001, at pp 105-154; see also, Donna, Stringer, M, Bridging Cultural Gaps in Mediation (2001) Dispute Resolution Journal, Vol 56, at pp 29-39, for a detailed discussion on a special technique exists in mediation that focuses on cross-culture issues.

n33

Mackie, Karl, Mediation Futures, in MacFarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at


p 374.

n34 Piper, Christine, Norms and Negotiation in Mediation and Divorce, in Freeman, Michael, Divorce: Where Next? University College London, 1996, at p 73.

n35

Haynes, John M, The Fundamentals of Family Mediation , State University of New York Press, Albany, 1994, at p 1.

n36 Haynes has mediated over 5,000 cases and trained over 15,000 professional in divorce mediation. He was the Founding President of the Academy of Family Mediators (1981-1985) and the first recipient of its Distinguished Contribution Award in 1989. He was awarded Peacemaker of the Year award in 1991, by the Community Mediation Services, Inc, 'For International Contribution to the Development of Divorce Mediation'.

n37 Haynes, John M, The Fundamentals of Family Mediation , State University of New York Press, Albany, 1994, at pp 1-6, called this as the generic process of mediation. He described the process of mediation as the management of other people's negotiations, and the mediator is the manager of the negotiations who organises the discussion of the issues to be resolved. He said, 'the more coherent and organised the process, the easier it is for the participants to arrive at solutions that are mutual and appropriate for them'.

n38 Douglas, Noll, E, A Theory of Mediation, (2001) Dispute Resolution Journal, Vol 56, at pp 78-84. Douglas states that Riskin's model has made a substantial contribution by clarifying the state of mediation practice and by stimulating the debate about the direction that mediation practice should take. However, he said, Riskin's model has been criticised as tending to legitimise evaluative mediation.

n39

Parkinson, L, Family Mediation, Sweet and Maxwell, London, 1997, at pp 131-6.

n40

Douglas, Noll, E, A Theory of Mediation(2001) Dispute Resolution Journal, Vol 56, at p 78.

n41 Walker, J, Family Mediation in Macfarlane, J, Rethinking Disputes: The Mediation Alternative , Cavendish Publishing, 1997, at pp 66-70. Walker's discussion on mediation process has been chosen because her discussion on those processes involves only seven stages (in contrast to some discussion which have more stages) yet her discussion covered all the points discussed by others.

n42 The Law Society considers this stage as the 'intake' or 'point of entry' phase. It is at this stage the parties have to consider and agree to the forum in which they wish to operate.


n43 Walker, J, Family Mediation in Macfarlane, J, Rethinking Disputes: The Mediation Alternative , Cavendish Publishing, 1997, at p 67; Boulle and Nesic, Mediation, Principles Process Practice, Butterworths, London, 2001, at p 129 refer this stage as 'mediator's opening'. They also consider this stage a very important stage of the process as it allows the mediator to explain both the nature of mediation generally and what will happen in the meeting specifically.

n44 Roberts, M, Mediation in Family Disputes; Principles of Practice , at p 110, views that the first session should start with a joint meeting between both parties and the mediator. She says there are three main reasons for this. Firstly, the mediator must establish an even-handed relationship with both parties from the start. Secondly, if the mediator's main objective is to launch the parties on a joint enterprise of negotiation and decision-making, they ought to begin the way they wish to continue. Thirdly, a joint meeting is the best means of achieving a clear understanding of the issues in dispute.

n45

Ibid .

n46

Boulle and Nesic, Mediation, Principles Process Practice, Butterworths, London, 2001, at p 129.

n47 Marcus, S, Representing Clients in Mediation-New Professional Skill , Butterworths, 1998, at p 23; The Law Society's Code of Practice for Family Mediators, Element, 2.

n48 Walker, J, Family Mediation in MacFarlane, J, Rethinking Disputes: The Mediation Alternative , Cavendish Publishing, 1997, at p 68; The Law Society's Code of Practice for Family Mediators, Element 7.

n49

McCrory, John, P, Environmental Mediation - Another Piece for the Puzzle , (1981) Law Review, Vol 6, No 1, at p 52.

n50

Ibid .

n51

Haynes, John M, The Fundamentals of Family Mediation, State University of New York Press, Albany, 1994, at p 3.

n52

The Law Society's Code of Practice for Family Mediators, Element 7.


n53

Brown, H and Marriott, A, ADR Principles and Practice , Sweet and Maxwell, London, 1993, at p 249.

n54


n55

Walker, J, Family Mediation, in MacFarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at p 68.

n56

Brown, H and Marriott, A, ADR Principles and Practice, Sweet and Maxwell, London, 1993, at p 251.

n57

Law Society's Code of Practice for Family Mediators, Element 8.

n58


n59

Haynes, John M, The Fundamentals of Family Mediation, State University of New York Press, Albany, 1994, at p 6.

n60

Ibid .

n61 Brown noted that the term memorandum of understanding is imported from the United States. This term is recommended by the UK College of Family Mediators and is now widely used. He also noted that although the term 'Summary of Proposal' is preferred by some, it has been abandoned for the sake of national consistency. See, Brown, H and Marriott, A, ADR Principles and Practice , Sweet and Maxwell, London, 1993, at p 251.

n62


n63

Ibid .


n64

Parkinson, L, Family Mediation, Sweet and Maxwell, London, 1997, at p 291.

n65

Walker, J, Family Mediation, in McFarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at p 68.

n66

Family Mediation in Europe , at p 175.

n67

Parkinson, L, Family Mediation, Sweet and Maxwell, London, 1997, at p 288.

n68

Family Mediation in Europe , at p 162.

n69

The Consultation Paper on Legal Aid, 1995, para 9.15.

n70

Ibid , para 9.13.

n71

Walker, J, Family Mediation, in MacFarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at p 69.

n72 Boulle and Nesic, Mediation, Principles Process Practice, Butterworths, London, 2001, at p 142 are also of the view that ratification and review of the mediated agreement by lawyers, accountants or other professional advisers after mediation will provide safeguards for the parties.

n73

Brown, H and Marriott, A, ADR Principles and Practic e, Sweet and Maxwell, London, 1993, at p 264.

n74

Walker, J, Family Mediation, in Macfarlane, J, Rethinking Disputes: The Mediation Alternative, Cavendish Publishing, 1997, at p 69.

n75 After the mediation has concluded, the mediator may still be required to meet the parties to deal with any issues that might be raised by either party's solicitor on the proposed terms, or with anything else requiring further attention: The Law Society's Code of Practice for


Family Mediators, Element 11.

n76

Boulle and Nesic, Mediation, Principles Process Practice, Butterworths, London, 2001, at p 506-507.

n77

Ibid .

n78

Brown, H and Marriott, A, ADR Principles and Practice, Sweet and Maxwell, London, 1993, at p 228

n79

Ibid .

n80

Roberts, M, Mediation in Family Disputes; Principles of Practice , at p 79.

n81

See, the National Family Mediation Report, 1994.

n82 Webley, L, A Review of the Literature on Family Mediation for England and Wales Scotland, the Republic of Ireland, France and the United States, at p 20.

n83 Webley, L, A Review of the Literature on Family Mediation for England and Wales Scotland, the Republic of Ireland, France and the United States, at p 20.

n84

See, The Centre for Dispute Resolution, Model Mediation Procedure , para 14.

n85

Ibid .

n86 The WIPO Mediation Rules, Article 18 (ii); Shapiro, David, Pushing the Envelope - Selective Techniques in Tough Mediations , (1999) Solicitors Journal, Vol 143, No 36, at p 886.


n87

Ibid , Article 18 (iii).

n88


n89

The Centre for Dispute Resolution, Model Mediation Procedure, para 14.

n90

Family Mediation in Europe , p 173.

n91

The Law Society Code of Conduct for Mediators, 3.1 and 3.2.

n92 See, ss 29B, 29C, 29D, 29E, 31B and Third Schedule of the Legal Aid (Amendment) Act 2003; The Legal Aid (Mediation) Regulations 2006.

n93 Faridah Abrahim, Mediation the BBG Approach , a paper presented in the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur on 17-18 July 2006.

n94

Syed Khalid Rashid, Alternative Dispute resolution in Malaysia, Kulliyyah of Laws, IIUM, KL, 2000.

n95

Ibid .

n96

Perlaksanaan Sulh di Mahkamah Syariah (2003) JH, Vol XVI Part II, at p 65.

n97 See, Raihanah Azhari, Sulh dalam Perundangan Islam: Kajian di Jabatan Kehakiman Syariah Selangor Darul Ehsan , Ph D Thesis, Department of Fiqh and Usul, University of Malaya, 2005.


n98

Ibid .

n99 Mohd Naim Mokhtar, Alternative Dispute Resolution (sulh) in the Federal Territory Syariah Court of Malaysia , a paper presented at the International Family Law Conference held in Kuala Lumpur, 16-17 January 2007.

mediation MLJ

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