This article will focus on mediation in the context of family law in Malaysia.
Mediation is a form of alternative dispute resolution. Put simply, it is a way of resolving disputes out of court. Mediation can happen at any time throughout the dispute resolution. For example, parties can agree at the outset that they would refer their case for mediation, or agree midway through court proceedings, or even at the very last minute before judgment is delivered by the court. Mediation is an especially useful tool in family law, as family issues typically involve high levels of emotion, and individual needs. Parties may also be uncomfortable voicing their thoughts to each other. Often, especially where they have children together, the parties may hope to preserve a civil relationship between them for the benefit of their children.
A mediation employs the services of a mediator, whose purpose is to facilitate communication and settlement between parties. Mediators are neutral, independent and impartial third parties. A mediator need not necessarily be a lawyer although many mediators are also qualified and practising lawyers.
Mediation is different from arbitration (another type of alternative dispute resolution). The main difference between mediation and arbitration is that parties in a mediation can choose whether or not they want to agree to the settlement; a mediator is not a judge and is simply a facilitator. In contrast, in an arbitration, parties are bound by the decision of the arbitrator.
It is understandable that parties in the midst of a separation may find it difficult to communicate with each other. This is where a mediator can come in handy – she can help parties convey their thoughts and concerns to each other in a neutral space. A mediator can help parties focus on the issues at hand, and work together to come up with practical solutions that suit both of them.
Especially where there are children involved, parties may wish to consider the use of mediation to minimise conflict between parties and to achieve a swifter outcome. This is especially helpful if parties plan to co-parent the children. It is easier to co-parent where parties are able to maintain an amicable working relationship, not to mention healthier for children to be brought up in a conflict free (or at least minimised conflict) environment. Unlike litigation, mediation encourages a collaborative approach to problem solving rather than being antagonistic and combative.
One of the main advantages of mediation is that it helps maintain the privacy and confidentiality of the parties. Parties will not have to file documents with court revealing the cause and details of the breakdown of the relationship or any allegations of wrongdoing by either party. Further, any information disclosed during mediation by the parties may not be used by the other to further their case at court.
Other advantages of mediation aside from saving time and costs include the fact that it is less intimidating than proceeding with a trial at court where both parties will be cross examined by the opposing side’s lawyer. Parties will also have a lot more control over the outcome, which for family matters, particularly useful as no two families are the same. They may agree on a unique arrangement for access to the children that suits everyone in their family.
If parties are able to come to an agreement on all the terms of divorce during mediation, the mediator will draw up a mediation resolution agreement to record the agreed terms. Parties may then take these terms to a lawyer as the basis for a joint petition divorce. A joint petition divorce is widely regarded as being much faster and cheaper than a single petition divorce. For further information on joint petition divorces, you may refer to our article here or our article on obtaining a divorce in Malaysia here.
To begin mediation, parties may either (i) reach out to a mediator individually, or (ii) refer their dispute to the Malaysian Mediation Centre (“MMC”). You may refer to the MMC website at http://www.malaysianmediationcentre.org/ for further information. The MMC website also contains a directory of qualified mediators in Malaysia and their areas of specialisation.
At Chang Law Chambers, we strongly believe in resolving family issues out of court as much as possible especially when children are involved to prevent a further deterioration of the parties’ relationship which would be detrimental to the children. If you are interested in mediation, please do not hesitate to reach out to us for a consultation. Being a qualified mediator and having experience in family law matters, we believe that we are well placed to assist with family law mediations.
*This article is for informational purposes only and is not intended to provide legal advice.