Professional Documents
Culture Documents
Adr Full Made Notes - Doc 1
Adr Full Made Notes - Doc 1
“ a specific disagreement concerning a matter of fact, law or policy in which a claim or assertion
of one party is met with refusal, counter-claim or denial by the other”
Negotiation
There two types of negotiation
a) Positional bargaining
- A negotiation where negotiator took on a position and undergo contest of will.
- Two position in this bargaining process:-
I- Soft positional negotiator
II- Hard positional negotiator
- Therefore, it can be said that positional bargaining is where negotiator took a stand as a basis
for negotiation either to use soft or hard approach.
- The weakness of this method of negotiation is that the negotiator will often give more focus on
position rather than their dispute.
- This will cause the disputing parties to unable reach agreement.
- Even if the disputing parties may come to an agreement, the agreement may perhaps not be fair
to both sides.
b) Principled Negotiation
- This method of negotiation was developed in the Harvard Negotiation Project.
- This method of negotiation focus on four principle
I- People
o The negotiator separates the people from the problem.
o They work as team and focus on the problem instead of the people.
o This principle is where the negotiator uses the hard approach against the problem and soft
approach against the people.
II- Interest
o Negotiator focus on interest instead of the position of the disputing parties.
o This will enable both parties to safeguard their interest.
o Therefore, a more acceptable agreement to both parties may be reached.
III- Options
o The parties may generate variety of possible solutions for the dispute.
o They may invent a solution from the variety of suggestion of options generated.
o They may the pick the most suitable solution for mutual gains.
IV- Criteria
o The parties, may, in choosing the option for solution, insist that it must be based on some
objective standard.
o Both parties must be able to reason and be open to reason.
o This will enable a fair and mutually beneficial solution to both parties.
o The parties should only yield to the principle; they must not yield to the pressure or a positional
influence.
Collective bargaining and collective agreement is both governed by Industrial Relation Act (IRA)
- Procedure
a) Section 13
(1) Invitation to start collective bargaining either by trade union of employers/employer or trade
union of employee.
(2) Invitation must be made in writing. The proposal which may be put forward, training for
workmen, annual review of wage system, r performance based remuneration system.
(3) May not contain proposal for promotion or dismissal or reinstatement of any worker as it is
the discretion of the employer.
(4) Reply notifying acceptance or rejection to the invitation shall be made within 14 days of
receipt of invitation.
(5) After invitation and reply notifying invitation is made, CB shall commence within 30 days of
receipt of reply notifying acceptance of invitation.
(6) If invitation is refused, or not accepted within 14days, or CB is not started within 30 days of
reply notifying acceptance to invitation, a party may make notification to Director General (DG),
in writing for him to take necessary step to commence CB without undue delay.
(7) If such step has been taken, and there is still refusal to commence CB, a trade dispute shall
deem to exist.
- Content of CA
a) Section 14 (2)
b) Must contain
I- Name of parties in agreement
II- The period it shall be enforceable (must be enforceable for at least 3 years)
III- Procedure for termination or modification of CA
IV- Procedure for interpretation or reference to court for any issue that may arise unless a
machinery to settle such issue is already provided.
- Procedure to enforce CA
a) Section 16
(1) Signed copy of document shall be jointly deposited by parties within one month from the date
of the agreement being entered into for court to take cognizance.
(3) Court itself may amend the CA and enforce it if parties agree to the amended CA.
- Effect of CA
a) Section 17 (1)
CA is binding on
I- Successors, assignees, transferees of employer or trade union of employer.
II- All workmen employed, subsequently employed, or employed in the undertaking of the said
CA.
b) The effect of this section was illustrated in the case of Kesatuan Kebangsaan Wartawan
Malaysia v Syarikat Pemandangan Sinar.
Mediation
1) Process
Majlis Sulh Mediation
Mediation Session Mediation Session
a) Introduction to Majlis Sulh a) Pre- Mediation process
- Parties sign mediation agreement to indicate
b) Opening Statement their submission to mediation.
- Sulh Officer lay down ground rules in Majlis
Sulh process b) Mediators Opening (Opening Statement)
- Mediators lay down ground rules and have a
c) Joint Session brief statement of facts be heard.
- Parties discuss dispute in presence of Sulh
Officer c) Joint Session
- Enable the officer to identify general issues. - Parties discuss dispute in presence of
mediator
d) Private Caucuses (optional) - Enable the mediator to identify general
- Party discusses issues with officer privately. issues.
- Parties may vent hidden issues and emotion
and speak freely. d) Private Caucuses (optional)
- Allows officer to identify hidden issues. - Party discusses issues with mediator
privately.
e) Subsequent Joint Session - Parties may vent hidden issues and emotion
- Allows parties to discuss issues with officer and speak freely.
and officer is able to facilitate discussion with - Allows mediator to identify hidden issues.
the information obtained from previous
sessions. e) Subsequent Joint Session
- Allows parties to discuss issues with
f) Settlement Agreement mediator and mediator is able to facilitate
- If there is a settlement agreement, may be discussion with the information obtained from
submitted to court to be endorsed and become previous sessions.
consent judgment.
- If there is no successful mediation f) Settlement Agreement
agreement, parties may proceed to trial. - If there is a settlement agreement, may be
submitted to court to be endorsed.
- Or it can be enforced as a mere contract.
- If there is no successful mediation
agreement, parties may try other ADR or
bring action to court.
2) Difference
Majlis Sulh MMC (Malaysian Mediation Centre)
Compulsory or not Compulsory or not
- Court annexed process. - A voluntary submission process.
Charge Charge
- Free of charge, salary of Sulh officer is - Fees depend on the value of subject
determined by State. matter in mediation and may be charged
with additional administration fees.
Qualification Qualification
- Sulh officer must hold either: - Previous condition was 7 years
a) 1st Degree in Islamic Studies practicing as lawyer
b) Diploma in Administration and Islamic
Judiciary either form UKM/UIAM - Now, open to all, provided, undergo 40
c) Any qualification equivalent to a hour training and passed the assessment to
Syariah Subordinate Court Judge qualify as mediator.
Attendance Attendance
- Attendance is compulsory as it is part of - Attendance depends on parties as it is a
court’s process. voluntary process.
Mediator Mediator
- Sulh officer is a full time mediator - There shall be a part time (lawyer) and
full time mediator.
Venue Venue
- In the room of Sulh Officer as it is in the - Parties may decided on place, or may use
same room as court. the MMC building
Mediation agreement Mediation agreement
- Parties do not need to sign mediation - Parties must sign mediation agreement as
agreement because it is a court process. an evidence of voluntariness.
(please note mediation agreement is an
agreement to submit to mediation. It is
different from settlement agreement.
3) Similarities
Majlis Sulh Mediation (MMC)
Outcome of successful mediation Outcome of successful mediation
- Endorsement will be sent to Court for a - May be submitted to court to be endorsed to
consent judgment. be a consent judgment.
- Even if not submitted to court, the settlement
agreement is still enforceable as a binding
contract.
Confidentiality Confidentiality
- The information is confidential. - The information is confidential.
- Officer cannot disclose information except - Mediator cannot disclose information except
as provided in any statutory provision. as provided in any statutory provision.
4) Roles
Sulh Officer Mediator
a) To provide basic legal information and a) Help parties to come out with a solution and
Hukum Syara’ where parties are not aware of explore these solutions.
their rights as they were unrepresented.
b) Give options of solution when parties are
b) As middle person to 2 disputing parties stuck in their dispute
guiding them to a peaceful settlement and also
to persuade them to re-evaluate the c) Help both parties to see their interest.
reasonableness of their claim.
d) Help parties to generate their options for
c) Simplifying the party’s problem with the settlement
aim of finding a solution.
Conciliation
• Definition
- To pacify, or to cool down state of anger.
- Conciliation in dispute settlement is basically similar with negotiation, but differ in the use of
neutral third party to negotiate to reach settlement.
• Role of conciliator
- Contact & interview disputing parties.
- Assist parties in exchange of information
- Facilitate the resolution by suggesting options
- Family matter
a) Law Reform (Marriage & Divorce) Act
b) Islamic Family Law (Federal Territories) Act
- S18
(1) – If trade dispute failed to be resolved, either party to the dispute, may report to DG
(2) – DG may take necessary steps to promote settlement.
(3) – if the failed collective bargaining involves public interest, DG will intervene regardless of
report being made or not.
(5) – if still unresolved, DG shall notify Minister
- S19
(2) DG may require the disputing parties to attend compulsory conference presided by him.
- S19A
• Minister may take necessary steps to conciliate trade dispute
- S19B
(1) Both parties may be
(a) Represent themselves with an officer or employee of their trade unions
(b) May be represented by any official of an organization of employers/employee registered in
Malaysia
(2) Parties may not be represented by lawyer
• Conciliation in Family Matters
1) Differences
Islamic Family Law Act Law Reform Act
Governed by Section 47 of IFLA Governed by Section 106 of LRA
Conciliatory Committee Conciliatory Body (any of the following)
a) A religious officer as Chairman a) A council set up by authority of the religion
b) One representative for each husband and b) A marriage tribunal which shall consist of:
wife appointed by Court I- A Chairman
II- Not less than 2 and not more than 4
members
III- Appointed by the Minister or officer he
delegate his power to
Venue Venue
- Department of Religious Affairs at the given - Registrar of Divorces and Marriages set up by
State Marriage Tribunal
Process Process
a) Conciliation under this Act is not mandatory a) Conciliation is a mandatory process as
but the court may order for conciliation only if provided under this section in order to proceed
I- There is reasonable ground to salvage the with the application of divorce
marriage
II- Where one party does not consent to the
divorce
2) Similarities
IFLA LRA
Method to count period to effect conciliation Method to count period to effect conciliation
a) Within 6 month from the date of conciliatory a) Within 6 month from the date of reference of
committee being established the petition of divorce
b) Applicants alleged other party is suffering b) Applicants alleged other party is suffering
from incurable mental illness. from incurable mental illness.
c) Where Court satisfied there is exceptional c) Where Court satisfied there is exceptional
circumstances circumstances
Representation Representation
a) Parties may not be represented by Peguam a) Parties may not be represented by an
Syarie. advocate or solicitor.
Arbitration
• Definition
a) Arbitration
- Grace Xavier – Law and Practice, Arbitration in Malaysia
- Agreement of parties to submit all existing and future dispute to arbitration.
- Syed Khalid Rashid – ADR in Malaysia
- Legal process which enables parties to a contract to refer their disputes to an arbitrators or
panel of arbitrator.
- Arbitral tribunal
Decisions of arbitral tribunal on the substance of dispute but does not include interlocutory order.
- Presiding arbitrator
Means the place where the arbitration is based on. (referring to the process and the rules that
apply to the arbitration process is the rule applicable in the rules of the place not the venue of
arbitration)
- Arbitration agreement
Agreement to submit all or part of the dispute that may arise or already exist to the arbitration
process (definition pursuant to Section 9)
Type of arbitration
- Section 3
a) Section 3 provide for two types of arbitration, domestic and international arbitration.
b) Difference
1) Definition 1) Defintion
- Section 2 - Section 2
- Arbitration which is not international - One of the parties to arbitration, at the
arbitration. time of conclusion of that agreement,
has it place of business in other State
2) Application than Malaysia.
- Or
- Section 3 - Any three situation
- Part III of AC shall apply unless party a) The seat of arbitration is determined
agreed otherwise in writing. outside Malaysia.
b) The substantial part of obligation is to
be performed outside Malaysia.
c) Parties have expressly agreed that the
subject matter of arbitration agreement
relates to more than one State.
2) Application
- Section 3
- Part III of AC shall not apply unless
party agreed otherwise.
• Number of arbitrators
- Section 12
- International arbitration, three arbitrators.
- Domestic arbitration, single arbitrators.
• Appointment of arbitrators.
- Section 13
- Parties are free to appoint arbitrators.
- If parties failed agree on appointing arbitrators, each party may appoint arbitrator from their
part, and the two arbitrator shall appoint the third arbitrator ( which shall be the presiding
arbitrator)
- If both the appointed arbitrator fails to appoint the third (presiding) arbitrator within the period
agreed between parties, either party may apply to the Director of Kuala Lumpur Regional Centre
for Arbitration (KLRCA) for such appointment.
- In arbitration with single arbitrator, if parties failed to agree on arbitrator appointment or
procedure of appointment, either party may apply to Director of KLRCA.
- If parties agreed with the procedure of appointment of arbitrators, but
a) Fails to act under such procedure or
b) Unable to reach agreement under such procedure
Either of them may apply to Director of KLRCA to take measures to secure appointment of
arbitrator.
- If Director of KLRCA fails to perform as such within 30days of request, parties may apply to
High Court for such appointment.
- Director of KLRCA shall, take into accounts when appointing the arbitrators
a) Qualification required by parties
b) Other factor to secure independent of arbitrator.
- No appeal against the decision of Director or High Court in appointing arbitrators.
• Conduct of proceedings
Section 24 – Language
- Arbitral tribunal shall determine the language to be used.
- May order documentary evidence to be accompanied with translation.
• Effect of award
- Section 36
- Award shall be final and binding.
Construction Dispute
Arbitration in Construction Dispute
The Malaysian courts have been actively involved in dealing with challenges in arbitration. In
Menang Development (M) Sdn Bhd v Pembinaan K& H Sdn Bhd & Anor,3 the plaintiff were
house developers who appointed the defendant as a contractor for their project. The plaintiff
challenged the architect certificate and applied for appointment of an arbitrator. The High Court
held that challenge of the architect certificate was not bona fide but nevertheless, the plaintiff
were not prevented from having the alleged defects and related claims to be arbitrated on as it is
their contractual right.
In Usahasama SPNB –LTAT Sdn Bhd v Borneo Synergy (M) Sdn Bhd,4 the plaintiff appointed a
company, PPHM as its main contractor. The defendant was the subcontractor of PPHM. In the
course of performance of the work, PPHM purported to withdraw from the main contract and
recommended for the piling work to be continued by the defendant. Subsequently, a deed of
assignment was signed between the plaintiff and defendant and acknowledged by the plaintiff.
Later a dispute arose between the plaintiff and defendant relating to payment for the work done.
The defendant issued an arbitration notice pursuant to clause 54 of the main contract. The Kuala
Lumpur Regional Centre for Arbitration (KLRCA) appointed an arbitrator who later exercised
his discretion and passed an award in favour of the defendant. The plaintiff took a court action
contending that the appointment of the arbitrator is not valid and to set aside the award. The
court held that there was a clear intention between the parties that they are bound by separate
contract, which was based on terms of the main contract when PPHM withdrew from the main
contract. Evidence showed that the plaintiff and defendant had conducted themselves as if terms
of the main contract bind upon their relationship. Owing to the fact that there existed a contract
between the plaintiff and defendant based on terms of the main contract, it follows that clause 54
of the P.W.D, which was a part of the main contract was a term of the contract between the
plaintiff and the defendant. As such, the arbitrator has discretion to decide on the arbitration
proceedings.
clauses on arbitration are found in clause 65 of PWD 203A (Rev. 2007),5 clause 34 of PAM
20066 and clause 47 of CIDB Building Works 2000 Edition.7 In all these standard forms, it
could be seen that arbitration is adopted as the final form of dispute resolution.
PROCEDURE
8) In this stage, the trader can contact the consumer to discuss the claim for purpose of
explaining the dispute or to discuss on how to settle it. If the parties reach an agreed
settlement, the tribunal shall approve and record the settlement and the settlement shall take
effect as it is an award of the tribunal (Section 107(3) of Consumer Protection Act 1999)
10) No lawyers are allowed to represent parties at the hearing. According to Section 109 of
Consumer Protection Act 1999, the proceeding is open to the public.
13) Next, the secretary of tribunal shall send a copy of the award made by the Tribunal to the
Magistrate Court and it will be recorded.
16) If no person has taken delivery of those documents and materials within six months, the
ownership of the documents should be deemed to have passed to and become vested in the
Government.
Tribunals
Adjudication
Adjudication involves an independent third party who considers the claims of both sides and
makes a decision. The adjudicator is usually an expert in the subject matter in dispute. Also,
adjudicators are not bound by the rules of litigation or arbitration. Their decisions are often
interim ones, i.e., they can be finalized using arbitration or another binding process.
Adjudication decisions are usually binding on both parties by prior agreement. In other words,
adjudication is generally binding for an interim period of time in order to resolve a dispute
quickly, but the specific issues settled may be arbitrated at a later time at the request of a party
for a definitive binding solution.Adjudication offers immediate, binding and affordable relief,
win or lose, with the opportunity of later revisiting contested issues in arbitration
Adjudication is very rare in Malaysia. Normally the application is alongside arbitration.
In Australia[]
Each state and territory has enacted legislation which provide for adjudication of progress
claims, starting with in 1999. There is very little harmony between the legislation in each
jurisdiction regarding the scope of contract covered and the adjudication procedure. However, in
all jurisdictions, adjudications are interim pending final resolution of the dispute under the
relevant terms of the contract.
In New South Wales[
The Building and Construction Industry Payment Act 1999 came into effect in New South Wales
on 26 March 2000 and applies to all construction contracts commenced on or after that date.
Amendments to the Act made in 2013 are not retrospective, however, earlier amendments are.
The Act does not apply to work, however, construction work ancillary to the operation of a mine
is covered. The Act also does not apply to work undertaken for a resident owner within the
meaning of the Home Building Act 1989.
In Queensland
The Building and Construction Industry Payments Act 2004 (BCIPA) came into effect in
Queensland in October, 2004. Through a statutory-based process known as adjudication a
claimant can seek to resolve payment on account disputes. The act covers construction, and
related supply of goods and services, contracts, whether written or verbal. BCIPA is regulated by
the Building and Construction Industry Payments Agency, a branch of the Queensland Building
Services.
In Victoria
Adjudication is a relatively new process introduced by the government of Victoria, Australia, to
allow for the rapid determination of progress claims under building contracts or sub-contracts
and contracts for the supply of goods or services in the building industry. This process was
designed to ensure cash flow to businesses in the building industry, without parties getting tied
up in lengthy and expensive litigation or arbitration. It is regulated by the Builders, sub-
contractors and suppliers need to carefully choose a nominating authority to which they make an
adjudication application
Neutral Fact Finding
Beyond the basic types of alternative dispute resolutions there are other different forms of ADR.
Neutral fact-finding is a process where a neutral third party, selected either by the disputing
parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-
finding process is particularly useful for resolving complex scientific and factual disputes.
Private Judging
A process in which the parties to a dispute present arguments and evidence to a dispute
resolution practitioner chosen on the basis of their experience as a member of the judiciary (the
private judge) who makes a determination in accordance with their opinion as to what decision
would be made. This process is agreed to by the parties whereby the dispute is presented to a
neutral third party, typically an experience attorney or retired judge, hired by the parties, who
renders a binding decision.
Expert Determination
Expert determination is a procedure in which a dispute or a difference between the parties is
submitted, by agreement of the parties, to one [or more] experts who make a determination on
the matter referred to it [them]. The determination is binding, unless the parties agreed otherwise.
Small Claims
What is 'small claim procedure'?
1. Small Claim Procedure is where an individual (not agent or company or person holding
power attorney or etc) wants to claim from someone else (debt) using court procedure,
i.e. suing in court of law.
2. The total amount of claim must not exceeding RM5, 000-00
3. The claim must be made through summons in Magistrate Court
4. No lawyer can get involve in this small claim proceeding … (that's bad for me…
hehehe), everything is done by the plaintiff himself (person who is suing) with the
guidance of court (staff).
5. To illustrate, if B owes A RM 5, 000-00 and B refuses to pay, A can sue B in
Magistrate court under this 'small claim' procedure.
Disciplinary Board
• Establishment & Composition
- Section 93 of Legal Profession Act (LPA)
- Proceedings for disciplinary purpose shall be under Disciplinary Board established under this
proviso.
- Disciplinary Board shall consist of
a) Chairman which is a judge or retired judge (of High Court/ Court of Appeal/ Federal Court)
that is to be appointed by Chief Judge after consultation with Bar Council.
b) President of Bar Council or any member of Bar Council as his representative.
c) Fifteen practitioner members of Bar Council of 15 years standing appointed by Chief Judge
for a term of two years.
- The chairman of the Disciplinary Board, President of Bar or his representative shall disqualify
themselves in the interest of justice and the remaining members of Disciplinary Board shall elect
one of them to preside over the meeting.
• Complaint
- Section 99
- Any complaint of misconduct of any advocate and solicitor or of any pupil shall be in writing
and referred to the Disciplinary Board.
• Investigation of Complaint
- Section 100
- If there is no merit in the complaint, shall dismiss the complaint and notify both complainant
and the advocate and solicitor.
- If there is merit in the complaint, the Board shall require a written explanation.
- Whether the advocate and solicitor provide a written explanation or not, after the expiration of
period to produce written explanation, the Board may determine,
a) if formal investigation is necessary, proceed to appoint Disciplinary Committee
b) if no formal investigation is necessary, proceed to consider the merit of the complaint.
Disciplinary Committee
- Section 103A
- If formal investigation is necessary, Board will appoint Disciplinary Committee from
Disciplinary Committee Panel.
- Shall consist of three persons
a) Two advocates and solicitors
b) One lay person
- Section 103B
- The Disciplinary Committee shall commence its investigation of the complaint into writing and
report to the Board.
- Section 103C
- Disciplinary Committee shall record its finding and make recommendation
a) That no cause for disciplinary action exists.
b) That cause of disciplinary action exist but is not enough to warrant punishment except for
warning
c) There is merit to complaint and disciplinary action should be taken.
- Section 103D
- The Board may affirm, reject the recommendation by Disciplinary Committee.
- Section 103E
- Appeal from decision of Board may be made to High Court, then Court of Appeal, then Federal
Court.
Mini Trial
A mini-trial most resembles a mediation hearing, in that there is a presentation by each party of
a summarized version of his or her case to a panel of persons for the purpose of resolving or
settling the dispute. Also like mediation, the parties are generally not bound to an outcome, and
may end the process at an impasse.
However, there is one important difference between a mediation and a mini-trial. In mediation,
the mediator is a neutral third party who does not take the side of either party, but instead tries to
facilitate open communication between the parties themselves in order to achieve compromise
and settlement. Even in court-ordered mediations conducted by a panel of mediators, the focus is
still on the parties: the mediators merely issue a recommendation to the parties for settlement
consideration.
Conversely, in a mini-trial, the mediators themselves are agents and advocates for the parties,
and they, rather than the parties, work out a settlement after hearing opposing sides to the
controversy (each goes into the mini-trial with advance authorization to settle the matter for a
certain dollar amount or under other conditions or criteria). The parties present their cases
(usually through their attorneys) but do not take active roles in the settlement negotiations nor
generally do their attorneys. The decision-makers in a mini-trial are the actual members of the
panel (excepting any neutral member, who may play the role of expert, advisor on substantive
law, etc.).
One might ask why the parties themselves do not facilitate the settlement directly in a mini-trial.
The answer is two-fold. First, parties involved in a controversy tend to approach and/or perceive
the matter subjectively rather than objectively. Parties also tend to inject emotion or bias into
their negotiations and will seldom compromise unless they have been introduced to damaging
information that tends to diminish their claim or defense. Therefore, officials who are one step
removed from the controversy, even if they serve as advocates for their respective parties, tend to
approach the dispute more objectively. Secondly, the officials at a mini-trial tend to be well-
seasoned and experienced in similar matters. For example, they may be representatives of the
insurance carrier for the party, or top-level management of a business that is party to a dispute or
they may be privately-retained consultants with technical expertise in the subject matter. For
these reasons, they may be better equipped to dissect and sort out opposing evidence and
arguments.
Mini-trials also differ from another ADR technique, the “summary trial” or “summary jury trial.”
Both mini-trials and summary jury trials involve the presentation of each side’s case, usually
without live testimony, but with opening and closing statements and an outline of evidence they
intend to produce at trial. However, summary trials are actually presented before mock juries,
who issue advisory “verdicts.” Following a jury determination, the parties and their attorneys
will attempt settlement.
Finally, a mini-trial differs from other forms of ADR in that it is usually conducted after
formal litigation has already been undertaken. Parties to a lawsuit generally stipulate to “stay”
pending litigation (put a hold on further advancement of the litigation) until the mini-trial is
concluded. Thus, mini-trial does not, in and of itself, represent an alternative forum for the
resolution of a dispute (such as arbitration), but rather it represents a pre-trial alternate attempt
to settle the matter before lengthy trial begins. The outcome of the mini-trial is generally
confidential and advisory only, and the parties may proceed to trial if settlement negotiations fail