mediation MLJ | Mediation | Negotiation

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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

is the fact that marriage breakdown leads to disputes with frequent impacts on some family members who are not legally competent such as children. Firstly. Thus. in family disputes the conflicts often involve a complex interplay of emotional and legal complaints. there may be a great need for an open-ended. Secondly. with the special nature of family disputes. the voluntariness of the process. n22 Marcus n23 . They are: the neutrality or impartiality of the mediator. the confidentiality of the relationship between the mediator and the parties. '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'. that is. the family itself represents a private ordering system that has the capacity for resolving its own disputes. as well as on the personal integrity and commitment of the mediator. bitterness. which is the first characteristic. a process which returns to. Fuller viewed that 'marital problems qualify on all counts for mediational solution'. 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. When parents are concerned about the future of their children. It normally results in sadness. et al. n12 In mediation the emotional and personal relationships involved in the dispute are acknowledged and the impact of the conflict on other family members. Thus. He found that mediation had played and would continue to play important role in marital difficulties. family disputes occur in family situations where there are continuing and interdependent relationships. especially children is considered paramount. and suggested that person-oriented mediation is far better suited than such formal mechanisms. mediation offers a more appropriate level of support. 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. 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. to the sensitive issues surrounding family disputes. he says.Page 2 The Malayan Law Journal Articles private adjudication. Obviously that requires special procedures and protections. n8 However. as compared to the adjudicatory process. n7 In appraising the role of mediation in society. unstructured process that permits the disputants to air their true sentiments. stated that mediation was much more likely to facilitate communication and so to leave parents in a position to manage future negotiations. In fact. n11 Family mediation. hostility and an overwhelming sense of loss. n9 Sander had discussed characteristics of family disputes that led him to argue in favour of mediation. they will co-operate better in mediation. relevant to the process. it is sometimes difficult to discover the real issue in dispute. n18 According to him. the concept of neutrality or impartiality. does not require that the mediator has no knowledge of the dispute or the substantive issues involved. Finally. and almost always painful and distressing. or keeps control in. that is. in assessing the suitability of any form of dispute resolution there are special characteristics of family disputes that need to be considered. voluntariness. n17explains that mediation has four fundamental and universal characteristics. McCrory also considers the third characteristic. and the procedural flexibility available to the mediator. as defined has been seen as a more sensible way of resolving family disputes and as a civilised and civilising procedure. n10 Davis G. rejection. In such a case. mediation is consensual in which it does not involve any authority or compulsion. 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. then the process cannot be characterised legitimately as mediation. n14 Walker n15 points out that divorce is rarely easy. anger. With regards to the second characteristic of mediation. n16 CHARACTERISTICS OF MEDIATION McCrory. which focuses on problem-solving and private ordering. (1) (2) (3) (4) 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. It has been said that interventions in matrimonial disputes has generally been regarded as unsuited to regulation by act-oriented rules. Thirdly. n13 Furthermore. and thus. the couple.

the parties must be given clear information about its limits right at the beginning of the process. it is understood from Marcus that. n28 Boulle and Nesic n29 describe mediation as a highly flexible dispute resolution process. MEDIATION PROCESS The process of mediation. reorganising the problem. the facilitative mediator uses different techniques in which he or she will not assess or predict outcomes. gathering the date. Rather than taking 'positions' on different models of mediation practice. While external confidentiality. According to Piper. for example. that is. n37 in his book stated that there are nine stages involved. redefining positions. as this is important for the success of mediation. According to him. usually the mediator will help the parties understand each side's position and the consequences of not settling. nothing of what he is told by any party will be revealed to the other party without express permission. mediators need to recognise the richness within mediation practice and the potential to call on a variety of approaches. n33 that: the future of mediation will gain most if mediators live by their own counsel. study relevant documents. Haynes. the context of dispute. n38 in discussing a practical theory of mediation that would bring together different views. hence. additional participants can be involved for part of the 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'. Parkinson. he said. that exist under the label of mediation. On the mediation process. whether it is an evaluative role or facilitative. as pointed out by Mackie. selecting the mediator. It has been pointed out that publicity about a conflict can harm public perceptions of the parties. Haynes's text has provided the model for many mediation services in the USA in the 1980s. n24 Thus. outlined the followings. The evaluative mediator defines the conflict in terms of strengths and weaknesses of positions and likely outcome at trial. may increase tension on their relationship and makes resolution of the dispute more difficult. n27 The last characteristic. Piper n34 described the writing of Haynes n35 on the process of mediation as the most influential on this topic. Publicity about a dispute between an organisation and stakeholder. the mediation procedure must be stopped immediately. the procedure can be negotiated and adapted. developing options. defining the problem. which is procedural flexibility. tools and techniques according to what is most uniquely appropriate for the parties. n32 Although there are many different models. Mediation process is flexible because it can be conducted in a variety of physical settings. 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.Page 3 The Malayan Law Journal Articles categorises the confidentiality in mediation into two aspects. referred to the various models of mediation process including Riskin's model. 'internal and external'. in theory as well as in practice. Thus. He refers internal confidentiality to a mediator's private sessions with each party. It is to note that confidentiality is not absolute. as the stages involved in . this characteristic of confidentiality in mediation requires both the mediator and the parties to trust one another. n30 However. or apply pressure to settle. choosing the arena. n39 in discussing the process of all-issues mediation. Douglas. n36 He was also directly involved in providing the training to mediators in five projects of comprehensive mediation in the UK. bargaining and drafting the agreement. and additional mediators can be added if necessary. which uses certain techniques and procedures by mediators. 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. They are. there have been criticisms of this characteristic of mediation. have been described in many literature. refers to parties' acceptance in the agreement to mediate that each of them will treat everything in the mediation as confidential. it is important for the practising mediators to note. 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. Hence. Instead. and the mediator. Riskin's model can be discussed in terms of the role of the mediator. In contrast. Evaluative mediator will study carefully pertinent documents and pleadings before the mediation.

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. or the issues between parties. gathering and sharing financial information. n48 These help parties share the information with one another so that they can make informed decisions. concentrating on making their own argument. living arrangements and the steps that might have been made by the parties to seek a divorce or legal advice. preparing for the first mediation meeting. identifying the issues for mediation. including the debates on which process is better than which. It is to note that in contrast to the parties in civil or commercial mediation. Haynes n54 expresses that parties are in dispute because they do . the framework designed to achieve the targeted purpose. the mediator needs to gather information including seeking clarification on certain points such as family composition. and to clarify those appropriately. and considering the outcome. As stated above that. there are many models of mediation process discussed. n53 Thus.Page 4 The Malayan Law Journal Articles this type of mediation. (2) Fact-Finding and Planning the Agenda As family mediation is premised upon an informed decision-making. After gathering all the necessary information the mediator together with the parties will come up with the agenda for mediation. as Brown said. n44 Such a relationship is important to facilitate the rest of the process. ending mediation. the role of mediators at this stage is to encourage each party to express concern and to identify issues. it is important for mediator in his introduction in the first joint session to reiterate that he has no authority to decide anything. The recommendations contained in the fact-finding report are not binding thus. completing case records. In this session the mediator should explain the purpose of the meeting. but provides the parties with an opportunity to present evidence and argument in support of their positions'. 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. engaging both parties in mediation. drafting summaries of mediation. follow Walker's discussion of mediation stages. exploring options. 'could well be contentious and inflammatory'. negotiating towards settlement. 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. it is important that as much space as possible is used to explain how mediation should work in practice. n41 (1) Engagement n42Walker n43 considered this step as a crucial one because it establishes a relationship between the parties and the mediator. 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. 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. Then the mediator will proceed with setting an agenda in collaboration with the parties. McCrory n49 describes 'fact-finding hearing is normally informal. Marcus n47 expressed that although it will have been included as a provision in the agreement to mediate. explaining mediation. the agreement to mediate. issues relating to children. however. rather than understanding the needs of the other. any party or both of them may reject them totally. gaining the co-operation of children and others involved. n40 As mediation. Prior to these discussions. Parkinson has provided detailed discussion for each of the above stated stages of mediation. (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. In fact. is relatively new. parties in divorce mediation mostly are not asked to make presentations of their respective positions. the ground rules and the terms of participation. whether it be question of fact or law. one of the forms of alternative dispute resolution. In view of the above. each has thought little about what the other wants. the stages of mediation outlined below.

the Government's Consultation Paper on Legal Aid stated that: . n60 In drafting the MOU n61 Haynes n62 views that. (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. (4) Negotiation and Decision Making Brown n56 considers this stage as the substantive stage of mediation. dealing with the expression of emotions. question the point of having MOU if it is not legally binding. et al. Thus. She felt therefore that. providing legal and other information. n58 explained a number of facets that this stage has which can be briefly listed below: option development. H. and as a facilitator. an appropriately mutual definition of the problem. n59 pointed out that for negotiation to work it is important that the followings are clarified. 'drafting the MOU is a simple matter when the mediator keeps track of the issues.Page 5 The Malayan Law Journal Articles not perceive option for solution. pointed out that many people who come to mediation. n57 Brown. n67 for example. This demands various attributes and skills from the mediator. options are traded. it is not a legally binding document. and one or more options as their primary goal. the mediator helps the parties to communicate with one another and to negotiate acceptable terms. they tend to view all situations in the same way. the data. n63 Parkinson. (1) (2) (3) (4) (5) (6) (7) During the negotiation stage positions are modified. and the give-and-take of negotiation occurs. n68 However. The agreements reached in mediation should be recorded and copies be given to the parties who might then take them to their lawyers. there are views. According to Walker n55 during this part of process mediators need to be both facilitative and creative. watching for signals that may provide clues for creating settlement options. as 'a resource person. which do not consider that MOU should be binding as it is made without protection. as experienced by many family mediators. which can be both learned and developed. In this stage. n66 Parkinson. It is important that during this stage mediators continue to listen effectively to the parties. 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. helping with reality-testing. n64 however. argues. an expert who can suggest new options based on a more extensive knowledge and experience of divorce and its effects. She quoted Taylor.' He then stresses that the agreement should be drafted in plain language so as it is clearly understood by each parties. In Europe. It is normally written in everyday language and as such should be open to modification as circumstances change. The role of mediator in these cases is to help the parties to expand the range of options. 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. This requires the mediator to act both as manager of the process. managing the process. and facilitating negotiations and decision-making. and provide mechanisms for enforcement of such approved agreements. according to national law'. keeping control of it. In England. that the drafting of mediation summaries is not a simple matter at all. helping the parties to work effectively with one another in circumstances that are often very difficult between them. these people want mediation to produce enforceable agreement. using communication skills. as describing the mediator. As to the nature of this MOU. Haynes. and each agreement the parties reach. which has binding effect on the couples. and their limited options prevent them from solving the problem without the help of a third party. all of the facts. a range of options to solve the problem.

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

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. The parties are not allowed to use any information given during mediation in any subsequent legal proceeding. or that the actions of a party during the mediation have made it impossible for the mediator to proceed impartially. The Bar Council in 1999 established the Malaysian Mediation Centre ('the centre') to encourage Malaysians to settle their disputes through mediation including family disputes. n92 There is also a code of ethics for mediators. In this state. It is funded by the Bar Council. In implementing the Civil Procedure Rule (Sulh) Selangor 2001. and the Legal Aid (Mediation) Regulations 2006. If a case is . the mediator himself may initiate the termination. dispute resolution by mediation started its operation on 1 May 2002. n96 In the Shariah Court of Selangor.Page 7 The Malayan Law Journal Articles 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. the first being the discussion and negotiation of the dispute. n90 Generally. and the second being the signing of the agreement reached. mediators may stop the mediation if he believes any party is abusing the mediation process. mediation process can lead to settlement with just one meeting. Parties may either attend the mediation themselves or may be represented by lawyers. This allows space for the disputants to discuss or give further thought on the agreement reached. It has plans to handle family disputes in future. In some cases. The mediator cannot subsequently be called up as a witness in court proceedings. It also saves time and is cost effective. This is provided for under Part VA of the Legal Aid (Amendment) Act 2003. This manual seeks to explain and standardise the procedures to be followed by the mediators in conducting the mediation. Section 87 of the Selangor Shariah Civil Procedure provides that the parties to an action are encouraged to hold sulh to settle their disputes. the parties are proposing a result which appears so unfair that it would be a manifest miscarriage of justice. 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. and the centre would commence the process by appointing a mediator. 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. before signing it. Parties may bring in expert witness. n91 OVERVIEW OF FAMILY MEDIATION IN MALAYSIA In Malaysia. n94 Under this service anyone may approach the centre to request for mediation. In the Shariah court of Malaysia. and matters that can or cannot be mediated. n87 If during the process of mediation the parties decide to go to counselling or therapy. The mediators are drawn from a panel of trained and accredited lawyers. 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. among others. as well as professionals from other fields. A mediator or sulh officer is assigned to each of the designated courts. which include. appointment of mediators. a Mediation Work Manual was organised for use by the mediators. the mediation can be terminated or be suspended. perhaps deferring any further discussion pending the happening of a certain event. which include mediation for family disputes. depending on the abilities of the mediator and/or the nature of the dispute. family mediation ('sulh') has been introduced in the Shariah Court of the State of Selangor. Ten mediators were appointed to serve in nine lower courts and the High Court. process and procedure of mediation. but those who use its services are required to pay the requisite fees for mediation. n88 Mediation may also be discontinued because the couple have gone as far as they can or want to at that time. n95 Currently the centre mainly handles commercial disputes. Some mediators hold a minimum of two meetings. n93 This mediation unit is headed by a director of mediation and has helped reduce the backlog of cases. who are trained as mediators. 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. the Legal Aid Bureau provides mediation services to its clients. for both Muslims and non-Muslims.

at p 16. It also provides a platform for the parties to settle their differences without going through the long court processes. . n99 CONCLUSION Mediation has become the main means of alternative dispute resolution for family disputes in many countries such as Singapore. London. Disputes. 2. Return to Text FOOTNOTES: n1 Webley. n2 Ibid. mediation process is voluntary where parents without their lawyers can sit together and try to reach an agreement. at p 52. then more separate and/or joint sessions may take place. 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. In this relation.4. n98 In the Federal Territory Shariah Court. children. 1997. M. para 1. L. at pp 4-7. the discussion of the definition of family mediation in Parkinson. there were 482 cases registered under the unit and 432 were resolved successfully. The Expertise of Mediating. The discussion of the characteristics and process of mediation shows that with relevant and appropriate deliberation. 1997. finance or property'. such as. Looking to the Future. prepared for the Lord Chancellor's Advisory Committee on Legal Education and Conduct. As from April 2005 to March 2006. Sweet and Maxwell. at p 37 (will be abbreviated as the White Paper). child custody and division of harta sepencarian can be dealt with more effectively through mediation. 1995. Mediation in Family Disputes: Principles of Practice. n4 The White Paper. at p 5. n3 Lord Chancellor's Department. see also. the Republic of Ireland. With all the positive characteristics of mediation. para 5. France and the United States. London. Australia and New Zealand. para 5. 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. HMSO. the chairperson will submit it to the judge for issuing of orders. Mediation can help cut cost and reduce the emotional trauma of parents undergoing the strenuous court proceedings. If there is agreement reached. mediation is a suitable means for the resolution of family disputes. As discussed above. Sulh Unit was set up in April 2005 and four sulh officers were appointed to assist the parties to achieve a settlement. the process may start the same day. Moreover. Arena. [1997] Fam Law. where disputing parties are present in court to file their claims. 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. Mediation and the Ground for Divorce. Family Mediation. and in particular separating or divorcing couples. If they then agree to go through mediation. C. 45 or 47 of the Islamic Family Law (State of Selangor) Enactment 2003.Page 8 The Malayan Law Journal Articles complicated. Richards. L. Ashgate Publishing. divorce. Cm 2799. family mediation is defined as 'a process in which an impartial third person assists those involved in family breakdown. In the UK College of Family Mediators: Code of Practice. A Review of the Literature on Family Mediation for England and Wales Scotland.4. n97 Cases that reach settlement within a short duration are those submitted under ss 23. Robert. 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. 1998.

G and Roberts.Page 9 The Malayan Law Journal Articles n5 Ibid. 1984. 44. n6 Webley. in Eekelaar. Divorce Mediation . Canada.The Resolution of Family Conflict . et al. New York. Milton Keynes. 2000. at p 401 (hereinafter cited as the Final Evaluation Report). at pp xii and xiii. Frank. 1988. Mediation and other Process. M. Wan. 1984. Access to Agreement. (2nd Ed. Stephen. 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'. and Katz. Jay. N (ed).Its Forms and Function.5. n10 Sander. n9 Walker. n11 Davis. Philip. n13 Family Mediation in Europe (Explanatory Memorandum). Little. at p 16. see also. 1992) at p 299. n12 Walker. Butterworths. Development of Family Mediation. A Consumer Study of Mediation in Family Disputes. Folberg. Philadelphia. Dispute Resolution Journal. France and the United States. para 15. the Republic of Ireland. F. SN (ed). Butterworth. . at p 168. Towards a Functional Analysis of Family Process. at p 402. para 15. Newcastle Centre for Family Studies. John. at p 168.The Emerging American Model. see also. Lon L. Vol 54. Open University Press. n8 Fuller. Toronto. Sanford. Negotiation. B. the characteristics of family disputes laid down in the 'Explanatory Memorandum' of the 4th European Conference on Family Law. E. A Review of the Literature on Family Mediation for England and Wales Scotland. in Eekelaar. at pp 70-79. M. J. n7 Goldberg. Mediating Family Property Disputes in New Zealand. at p 151. Most of the literature emphasise on the role of the parties in making the decision for themselves and for the children involved. Mediation . The Resolution of Family Conflicts-Comparative Legal Perspective. J. L. in Information Meetings and Associated Provisions within the Family Law Act 1996 Final Evaluation Report. Development of Family Mediation in the Final Evaluation Report. H. para 5. Dispute Resolution. Toronto. n14 Ibid.Comparative Legal Perspective. at p 330. (1971) Southern California Law Review. J and Katz. August 1999. Brown and Co.

No 1. Environmental Mediation . McCrory. n16 Fuller. The mediated dispute is settled when the parties themselves reach what they consider to be a workable solution. n22 McCrory. L. . (1981) Vermont Law Review. at p 25. His or her strength lies in the ability to assist the parties in resolving their own differences. (2001) Dispute Resolution Journal. (1981) Vermont Law Review. The mediator has no authority to impose a settlement. at pp 54-56.New Professional Skill. at p 51. n19 Concerning the knowledge of the facts of the dispute. 1998. The Trusted Mediator: Ethics and Interaction in Mediation in MacFarlane. Vol 6. 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. (2001) Journal of Business Ethics. at p 332.Mediation . (1971) Southern California Law Review. Environmental Mediation . n17 McCrory. John. at pp 16-27. No 1. Cavendish Publishing. 2000. 44. P. Rethinking Disputes: The Mediation Alternative. Butterworths. Vol 6. Lampe. Vol 6. No 1. Recipe for Success in Construction Mediation. and (iii) mediation is conducted without prejudice to parties' rights and liabilities. at p 56. at p 53. She states. in the 4th European Conference on Family Law Council of Europe publishing. n23 Marcus.Another Piece for the Puzzle (1981) Vermont Law Review. Marcus. at p 21. 'This is to ensure that parties feel free to disclose all relevant information in mediation'. 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. John. Representing Clients in Mediation . P. J.Another Piece for the Puzzle'. Family Mediation in Europe. Vol 31. Environmental Mediation .Its Forms and Function. Madden. at pp 165-173. J.Another Piece for the Puzzle. They are (i) mediation is voluntary. n21 Marc. C. n18 Ibid.New Professional Skill. 1998. S. S. at pp 330-332. Morris. considered confidentiality as important element in the mediation process. Butterworths. n20 In his article. 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. Vol 56. (ii) mediation is private and confidential. 1997. Representing Clients in Mediation .Page 10 The Malayan Law Journal Articles n15 Walker. Mediation as an Ethical Adjunct of Stakeholder Theory.

1997. at pp 109-125. John. Fiona. Principles Process Practice. n30 Ibid at pp 33-34. 2001. at pp 29-39. Mediation Futures. Boulle and Nesic. Family Mediation. 1997. n27 Ibid. (1997) The Juridical Review. in MacFarlane. E. Vol 6. 1994. 76. ADR Principles and Practice. Mediation. The Fundamentals of Family Mediation. M. Principles Process Practice. London. Arena. at pp 1-29. at pp 66-70. Rethinking Disputes: The Mediation Alternative. at p 84. Environmental Mediation . Mediation. P. Informal Justice and the Ethics of Mediating in Abusive Relationships. for example. Roberts. Karl. at p 78. Co-mediation is used particularly where a combination of different kinds of expertise is required. London. L. Principles of Practice. (1981) Vermont Law Review. 1997. n28 McCrory. J. In the family disputes. Vol 56. M. London. No 1. at . at pp 154-188. A. Butterworths.Butterworths. 1993. John M. Bridging Cultural Gaps in Mediation (2001) Dispute Resolution Journal. London.Family Mediation. for a detailed discussion on a special technique exists in mediation that focuses on cross-culture issues. Haynes. Sweet and Maxwell. at p 56. see also. n26 Ibid. Walker. Cavendish Publishing. Brown. at pp 105-154. Sweet and Maxwell. Donna. Rethinking Disputes: The Mediation Alternative. State University of New York Press. J. Parkinson. 2001.Another Piece for the Puzzle. Stringer. n33 Mackie. Cavendish Publishing. n25 The Family Mediation in Europe. J. Ashgate Publishing. n29 Boulle and Nesic. H and Marriott. the use of two mediators in mediation session is called co-mediation. in Macfarlane. at pp 125-158. at p 33. Albany. n31 Raitt. in the UK both sole mediation and co-mediation models are used. 1997.Page 11 The Malayan Law Journal Articles n24 Ibid. n32 Most of the literature discusses the process of mediation as their main topics. Mediation in Family Disputes.

'the more coherent and organised the process. Sweet and Maxwell. Norms and Negotiation in Mediation and Divorce. at p 78. Noll. Riskin's model has been criticised as tending to legitimise evaluative mediation. n36 Haynes has mediated over 5. Vol 56. at pp 131-6. John M. n39 Parkinson. 1997. Family Mediation in Macfarlane. J. at pp 78-84. called this as the generic process of mediation.000 professional in divorce mediation. Rethinking Disputes: The Mediation Alternative. He described the process of mediation as the management of other people's negotiations. Inc. 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. at pp 1-6. 1997. n38 Douglas. Albany. Family Mediation. Christine. The Fundamentals of Family Mediation. (2001) Dispute Resolution Journal. State University of New York Press. n42 The Law Society considers this stage as the 'intake' or 'point of entry' phase. 1996. A Theory of Mediation(2001) Dispute Resolution Journal. Michael. London. n35 Haynes. at p 73. Vol 56.Page 12 The Malayan Law Journal Articles p 374. at p 1. in Freeman. n40 Douglas. . However.000 cases and trained over 15. He said. He was awarded Peacemaker of the Year award in 1991. 1994. and the mediator is the manager of the negotiations who organises the discussion of the issues to be resolved. State University of New York Press. The Fundamentals of Family Mediation. 'For International Contribution to the Development of Divorce Mediation'. at pp 66-70. n37 Haynes. E. L. the easier it is for the participants to arrive at solutions that are mutual and appropriate for them'. n34 Piper. Divorce: Where Next? University College London. n41 Walker. Cavendish Publishing. It is at this stage the parties have to consider and agree to the forum in which they wish to operate. Noll. J. 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. he said. by the Community Mediation Services. He was the Founding President of the Academy of Family Mediators (1981-1985) and the first recipient of its Distinguished Contribution Award in 1989. John M. E. Albany. A Theory of Mediation. 1994.

Rethinking Disputes: The Mediation Alternative. The Fundamentals of Family Mediation. Family Mediation in MacFarlane. at p 23. London. n45 Ibid. at p 67. 1998. Element. 1997. . if the mediator's main objective is to launch the parties on a joint enterprise of negotiation and decision-making. No 1. 1994. n52 The Law Society's Code of Practice for Family Mediators. Mediation.Page 13 The Malayan Law Journal Articles n43 Walker. Representing Clients in Mediation-New Professional Skill.Another Piece for the Puzzle. at p 68. J. 2. Cavendish Publishing. 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. n48 Walker. at p 110. views that the first session should start with a joint meeting between both parties and the mediator. Principles Process Practice. J. Boulle and Nesic. they ought to begin the way they wish to continue. 1997. n49 McCrory. Albany. Vol 6. 2001. Principles of Practice. John M. n50 Ibid. P. The Law Society's Code of Practice for Family Mediators. at p 129. Mediation. Butterworths. Principles Process Practice. at p 129 refer this stage as 'mediator's opening'. Firstly. She says there are three main reasons for this. Element 7. at p 3. Secondly. M. Element 7. n44 Roberts. Butterworths. London. Butterworths. n46 Boulle and Nesic. Cavendish Publishing. a joint meeting is the best means of achieving a clear understanding of the issues in dispute. S. Mediation in Family Disputes. n51 Haynes. State University of New York Press. The Law Society's Code of Practice for Family Mediators. at p 52. the mediator must establish an even-handed relationship with both parties from the start. n47 Marcus. Environmental Mediation . Family Mediation in Macfarlane. 2001. Thirdly. J. (1981) Law Review. J. Rethinking Disputes: The Mediation Alternative. John.

at p 251. at p 68. n55 Walker. 1994. at p 251. H and Marriott. Albany. John M. n61 Brown noted that the term memorandum of understanding is imported from the United States. Rethinking Disputes: The Mediation Alternative. 1993. Sweet and Maxwell. The Fundamentals of Family Mediation.Page 14 The Malayan Law Journal Articles n53 Brown. A. The Fundamentals of Family Mediation. See. at p 251. London. State University of New York Press. Family Mediation. London. Brown. London. Cavendish Publishing. Sweet and Maxwell. n57 Law Society's Code of Practice for Family Mediators. 1993. n62 Haynes. Albany. 1993. A. The Fundamentals of Family Mediation. Sweet and Maxwell. Sweet and Maxwell. n58 Brown. it has been abandoned for the sake of national consistency. 1997. He also noted that although the term 'Summary of Proposal' is preferred by some. H and Marriott. H and Marriott. London. . at p 6. n63 Ibid. State University of New York Press. State University of New York Press. at p 5. John M. at p 6. Albany. ADR Principles and Practice. Element 8. ADR Principles and Practice. in MacFarlane. n59 Haynes. ADR Principles and Practice. John M. A. J. n60 Ibid. n56 Brown. 1994. ADR Principles and Practice. at p 249. n54 Haynes. 1994. 1993. J. This term is recommended by the UK College of Family Mediators and is now widely used. H and Marriott. A.

at p 175. Rethinking Disputes: The Mediation Alternative. 2001. n69 The Consultation Paper on Legal Aid. at p 291. n66 Family Mediation in Europe. Family Mediation. at p 162. n70 Ibid. Sweet and Maxwell. para 9. J. Sweet and Maxwell. n65 Walker. Cavendish Publishing. 1995. 1997. Rethinking Disputes: The Mediation Alternative. in MacFarlane. J. Family Mediation. L. 1993. London. n71 Walker. at p 288. J. at p 142 are also of the view that ratification and review of the mediated agreement by lawyers. Principles Process Practice. L. Mediation. J.13. 1997. n73 Brown. 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. para 9. in McFarlane. Rethinking Disputes: The Mediation Alternative. J. Cavendish Publishing. or with anything else requiring further attention: The Law Society's Code of Practice for . 1997. London. H and Marriott. 1997. at p 69. accountants or other professional advisers after mediation will provide safeguards for the parties. n68 Family Mediation in Europe. n75 After the mediation has concluded. in Macfarlane. at p 264. ADR Principles and Practice. n74 Walker. Family Mediation. at p 68. Cavendish Publishing. Sweet and Maxwell. Family Mediation. London.Page 15 The Malayan Law Journal Articles n64 Parkinson. Family Mediation. at p 69. A. Butterworths. n67 Parkinson. J.15. n72 Boulle and Nesic. London. 1997.

Shapiro. (1999) Solicitors Journal. n80 Roberts. at p 506-507. the Republic of Ireland. David. 2001. London. at p 228 n79 Ibid. at p 79. 1993. n82 Webley. A Review of the Literature on Family Mediation for England and Wales Scotland. M. Pushing the Envelope . n83 Webley. L. .Page 16 The Malayan Law Journal Articles Family Mediators. at p 20. Principles of Practice. n86 The WIPO Mediation Rules. Sweet and Maxwell. 1994. Article 18 (ii). n78 Brown. France and the United States. n76 Boulle and Nesic. H and Marriott. France and the United States. para 14.Selective Techniques in Tough Mediations.ADR Principles and Practice. Mediation in Family Disputes. the National Family Mediation Report. Vol 143. L. n77 Ibid. The Centre for Dispute Resolution. A Review of the Literature on Family Mediation for England and Wales Scotland. at p 20. A. n84 See. Model Mediation Procedure. Butterworths. n85 Ibid. Mediation. No 36. London. Element 11. Principles Process Practice. at p 886. n81 See. the Republic of Ireland.

Sulh dalam Perundangan Islam: Kajian di Jabatan Kehakiman Syariah Selangor Darul Ehsan. n88 Brown. 2000. at p 262. KL. p 173. IIUM. The Legal Aid (Mediation) Regulations 2006. Sweet and Maxwell. Mediation the BBG Approach. at p 65. 29E. n96 Perlaksanaan Sulh di Mahkamah Syariah (2003) JH. 31B and Third Schedule of the Legal Aid (Amendment) Act 2003. n91 The Law Society Code of Conduct for Mediators. n93 Faridah Abrahim. Article 18 (iii). Department of Fiqh and Usul. ss 29B. 2005. . n90 Family Mediation in Europe. n97 See. n95 Ibid. Kulliyyah of Laws. University of Malaya. Vol XVI Part II. London. 1993.1 and 3. H and Marriott. 3. A. Model Mediation Procedure. Raihanah Azhari. a paper presented in the Asia Pacific Conference on Contemporary Trends in Mediation and Arbitration in Kuala Lumpur on 17-18 July 2006. Alternative Dispute resolution in Malaysia. n92 See. n89 The Centre for Dispute Resolution. n94 Syed Khalid Rashid. Ph D Thesis. 29D. para 14. ADR Principles and Practice.Page 17 The Malayan Law Journal Articles n87 Ibid. 29C.2.

.Page 18 The Malayan Law Journal Articles n98 Ibid. 16-17 January 2007. a paper presented at the International Family Law Conference held in Kuala Lumpur. n99 Mohd Naim Mokhtar. Alternative Dispute Resolution (sulh) in the Federal Territory Syariah Court of Malaysia.

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