Mediation a complement to litigation

THERE have been grouses among the public over the inordinate and inexcusable delay in the disposal of cases in the courts. Too often, blame has been levelled on the courts when, in fact, there are other factors that have equally contributed to the delay. These include unnecessary requests for adjournments, transfer of judges or judicial officers, lack of court interpreters, and loss of evidence or exhibits in court.

In some cases, even the courts have raised concern over delays in the settlement of disputes. In Khairul Faezah bt Haji Abdul Majid v Muhamad Salleh bin Bidin (2004), there was a delay of approximately four years in the settlement of the dispute. The Syariah High Court stated inter alia that if only all the parties had acted accordingly, it would have saved the time of the proceeding of this case. The parties and their counsels were urged to be serious in settling the dispute, without unnecessary request for adjournment, as the parties and the general public would place the blame of any delay on the court.

Again, in Hazlinda bte Hamzah v Kumon Method of Learning Centre (2006), the Court of Appeal noted that the purpose for the creation of the Tribunal for Consumer Claims was mainly to protect consumers from the provision of defective goods and services and to provide speedy justice for consumers. In relation to the delay in settlement of disputes, the court stated; “formerly a case such as this, where a consumer complains of defective products or services, would have had to have been filed in the magistrate’s court. The disposal of the case would take ages.”

Mediation is an alternative mode of dispute resolution and is considered an effective and affordable complement to litigation. Mediation can be resorted to in civil and commercial disputes, divorce and family disputes, among others.

Mediation is principally aimed at exploring options for settlement and to facilitate negotiations between the parties for amicable settlement of the dispute. It is an excellent tool for the resolution of conflicts and for solutions that are invested in the parties who take part in the mediation.

Unlike in a lawsuit, where there would be a winner and a loser, mediation helps the disputants to find a mutually acceptable solution. Only if the parties are unable to resolve the matter will the dispute be referred to the court for adjudication.

Mediation, however, is not and should never be assumed to be a substitute for the judicial system.

The mediators must be equipped with the necessary skills in negotiation to handle disputes and the issues raised effectively. They should be given a reasonable period of time to complete the settlement process from the date the dispute is referred to them.

Mediation has the potential of reducing backlog of cases in the courts. Therefore, the disputant should address civil claims through mediation instead of bringing everything to court. PROFESSOR DATUK SERI DR ASHGAR ALI ALI MOHAMED Ahmad Ibrahim Kulliyyah of Laws International Islamic University Malaysia