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53 of 82 DOCUMENTS © 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal Articles 2009 Volume 5 [2009] 5 MLJ lxxxiii; [2009] 5 MLJA 83 LENGTH: 6736 words TITLE: Article: MAJLIS SULH(ISLAMIC MEDIATION) IN THE SELANGOR SYARIAH COURT AND MALAYSIAN MEDIATION CENTRE OF THE BAR COUNCIL A COMPARATIVE STUDY AUTHOR: Su'aida bt Safei Lecturer Faculty of Law Universiti Teknologi MARA TEXT: INTRODUCTION Sulh in the Syariah Courts in the State of Selangor Al-sulh is a well-known term in Islamic law which means reconciliation, discontinuance or stoppage of dispute or dissension and contention. Legally, al-sulh is the termination or avoidance of a dispute or law suit between two parties. n1 There are some provisions in the Al-Quran, n2 hadith (sayings of Prophet Muhammad) and in the sayings of the second Caliph of Islam, Umar ibn al-Khattab, which touched upon amicable settlement (sulh). n3 The most interesting provisions which are related directly to the possible negative effects of dispute resolution by way of court judgments can be found in one of the hadiths narrated by Ummu Salamah n4 and in the sayings of the second Caliph of Islam. n5 The traditional practice of sulh was adopted in Selangor within its Syariah Court system throughout the State; the provisions of which would be elaborated later in this paper. However, it should be noted here that Majlis Sulh as practised in the Selangor Syariah Courts, is not as wide as sulh in Islam; it is actually a court-annexed mediation. Bar Council's Malaysian Mediation Centre In 1995, the Bar Council set up an Alternative Dispute Resolution Committee ('ADR Committee') to look into the possibility of setting up a mediation centre in Malaysia. n6 The Bar Council launched its Malaysian Mediation Centre ('MMC') on 6 November 1999. n7 The MMC encourages settlement of civil disputes. The MMC works under the auspices of the ADR Committee. n8 The objectives of the MMC are to promote mediation as a means of alternative dispute resolution and to provide a proper avenue for successful dispute resolutions. n9 ASPECTS RELEVANT TO MAJLIS SULH AND MMC MEDIATION The governing statutes/rules Majlis Sulh in the Syariah Courts in the State of Selangor The provision relevant to sulh was inserted in one of the State Enactments, namely the Syariah Court Civil

in the absence of such rules. n12 On 1 June 2002. If thesulhofficers breach any of the provisions of the Code. However. were also made applicable for the use of mediation at the MMC. The ADR Committee adopted a mediation agreement which is a standard agreement that parties sign before the commencement of a mediation process to signify their acceptance of mediation. The Selangor state then gazetted the Syariah Court Civil Procedure (Sulh) Selangor Rules 2001 ('Sulh Rules 2001') as stated in the Government Gazette of the State of Selangor (Sel PU 44/2001) and provided for by s 254 of the Syariah Civil Procedure Code Enactment of Selangor No 7 of 1991. In implementing the Sulh Rules 2001. hold sulh to settle their dispute in accordance with such rules as may be prescribed or. in accordance with Hukum Syarak. action will be taken against them under the Selangor Public Officer Rules 1995. the Code of Ethics for sulhofficers was enforced. n15 Bar Council's MMC The model of mediation adopted by the MMC is the facilitative model. defines Sulh as involving the sulh officer acting as a chairman in helping parties to reach a mutually amicable settlement.there is no provision in any legislation that provides reference to mediation. n17 The stage of reference Majlis Sulh in the Syariah Courts in the State of Selangor . Mediators' fees. among others. It applies to all sulh officers during their service. The said pamphlet also equates Sulh to Mediasi or mediation. The Code provides standards that will guide sulh officers in the performance of their duties and functions. n14 The Model Adopted Majlis Sulh in the Syariah Courts in the State of Selangor The model of Majlis Sulh at the Selangor Syariah Courts appears to share the features of a facilitative model of mediation. Section 99 of the 2003 Enactment provides that: The parties to any proceedings may. regulated by a scale of charges. a Mediation Work Manual ('Manual Sulh') was drafted to be used by the sulh officers. This is observed from a pamphlet issued by the Selangor Syariah Courts which. n16 whereby the mediator will facilitate negotiations between parties and steer the direction of the discussion with the aim of finding a mutually acceptable solution. The 1991 Enactment was later repealed by s 248(1) of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 ('the 2003 Enactment'). at any stage of the proceedings.Page 2 The Malayan Law Journal Articles Procedure Code Enactment of Selangor 1991 ('the 1991 Enactment'). n13 Bar Council's MMC Unlike Majlis Sulh. The committee also adopted a code of conduct of the rules governing mediation to be applied by the MMC. n11 The objective of the manual is clearly stated in 'Bab 2' of the manual as: The purpose of this Manual is to clarify and ensure uniformity of procedures to be followed by all sulhofficers in conducting Majlis Sulh. n10 The Sulh Rules 2001 contain nine rules relating to sulh and explains the basic guidelines to sulh. the SulhRules 2001 are not amended and are still being practiced in line with the 2003 Enactment.

a case has to be filed at any of the courts first. mediator's opening n20 . Bar Council's MMC In contrast. is identical to the stage of preliminaries in the MMC mediation.Page 3 The Malayan Law Journal Articles Since Majlis Sulh is part of the procedures at the Selangor Syariah Courts in accordance with s 99 of the 2003 Enactment. Bab 4 and Bab 5 are substantively identical to the MMC mediation ie the mediator's summaries. optional but usually exercised to enable the parties to vent emotions and to speak freely (a private caucus allows the mediator to pick out common issues and hidden messages). for the purpose of showing the similarities between the two processes. Manual Sulh.an introduction to mediation.where parties sign a mediation agreement indicating their submission to mediation. Other stages are similar to that of Majlis Sulh ie at the commencement of legal proceedings or during proceedings. before such case can undergo the process in Majlis Sulh.parties sign a settlement agreement witnessed by the mediator. resembles the 'mediator's opening statement' in the MMC. inter alia. due to the fact that mediation at the MMC is not part of the court's procedure. in substance. joint session . . However. a case can be referred to MMC at any stage ie even before the case is filed in court (pre-trial). The parties are at liberty to pursue a court action. the ground rules in the Majlis Sulh. to the stage of settlement agreement in the MMC mediation. and (6) settlement agreement n23 . The sequence of stages in Manual Sulh. n18 The processes relevant to the conduct of Majlis Sulh and MMC Mediation This sub-heading will begin by examining the processes relevant to the MMC mediation first. Bab 3) wherein the sulh officer lays down. it can be held at any stage of the proceedings either in any of the Syariah Subordinate Courts or in the Syariah High Court in Selangor. Bar Council's MMC The MMC mediation process involves the following steps: n19 pre-mediation process . The opening statement by a sulh officer (referred to as Kenyataan Awal (Al Ta'arruf) Pegawai Sulh in Manual Sulh. Manual Sulh explains the whole process in Majlis Sulh. The stage of having private caucuses are similarly adopted by the sulh officer conducting Majlis Sulh. which is not possible for reference to Majlis Sulh. The stage where the sulh officer introduces the features of the Majlis Sulh to parties'. as stated in the Manual Sulh. as stated in Manual Sulh. Bab 7. should the outcome be unsatisfactory. preliminaries . Finally. Bab 3. n22 Majlis Sulh in the Syariah Courts in the State of Selangor The mediation process as adopted at the Majlis Sulh is substantially the same as that adopted at the MMC mediation. Either parties' solicitors may draw up the agreement or the mediator may do so if assistance is required. n21 (1) (2) (3) (4) (5) caucuses. identification of issues and agenda setting and clarification and exploration of issues.parties are invited to state their respective cases in each other's presence. Bab 8 is similar.where ground rules are laid down by the mediator for the session and mediators are provided with a brief statement of facts (no prior in-depth knowledge of the issues in dispute are required).

they are ten sulhofficers. n27 It is observed from the interviews conducted by the writer that asulhofficer must hold a first degree in Islamic studies from any local or foreign universities. n24 In addition. n30 This should be applauded since sulh officers at the Selangor Syariah Courts are now at par with the MMC mediators insofar as their qualifications as professional mediators are concerned. there are approximately 179 mediators accredited with MMC.Page 4 The Malayan Law Journal Articles The factors of success and failure of both methods It is observed that there are similar factors of success in the MMC mediation andMajlis Sulh ie parties negotiate in good faith. there were only 27 mediators who went through a three-day study of mediation techniques of the Singapore Mediation Centre and the Law Society. and (3) he or she must be successful in the final assessment conducted by the said trainers. two in the Syariah High Court and the remaining in the Syariah Subordinate Courts. n28 All sulhofficers are now accredited mediators of the Accord Group. appointed as full-time sulh officers in all the Syariah Subordinate Courts and the Syariah High Court in Selangor. Bar Council's MMC On the establishment of the MMC. He or she also holds a Diploma in Administration and Islamic Judiciary ('DAIJ') either from the Universiti Kebangsaan Malaysia ('UKM') or the International Islamic University Malaysia ('IiUM'). The 40-hour mediation training. The minimum qualification of asulh officer is equivalent to the qualification of a judge in the Syariah Subordinate Court in Selangor. Australia n29 since they completed the 40-hour training and received their Certificates of Mediation some time between 2006 and 2008. It is observed that the above requirements are stringent in ensuring the quality of mediators accredited with the MMC. n34 (2) he or she must undergo 40 hours of intensive training with the trainers. there were 11 officers. The requirement of having senior lawyers of at least seven years of practice is seen as selecting persons who have gained sufficient maturity and experience to deal with people. two more factors that have led parties to fail in settling their disputes through Majlis Sulh are the existence of power imbalance and also the lack of preparation by the parties when they attend Majlis Sulh. n31 Now. n26 Currently. namely: n33 (1) he or she must have seven years of practice. followed by a . free from any bad intention and they are willing to tolerate or compromise. n32 There are three conditions before an advocate and solicitor in Malaysia can be accredited as a mediator with the MMC. n25 ASPECTS PERTINENT TO SULH OFFICERS AND MEDIATORS WITH MMC Their qualifications Majlis Sulh in the Syariah Courts in the State of Selangor When sulh was formally initiated in the Selangor Syariah Courts in May 2002. The reverse of these factors are factors of failure. approved by the Bar Council for that purpose. Other additional factors that hinder parties to settle in a court-annexed mediation like Majlis Sulh are lack of parties' commitment and non-attendance.

further guarantees that mediators with the MMC are fully aware of shifting their role from combative lawyers to skillful mediators. the recent accreditation of sulhofficers as mediators with the Accord Group. skills expected from a mediator. It can also be viewed as recognition of these sulh officers as professional mediators. for example. Roles Majlis Sulh in the Syariah Courts in the State of Selangor Sulh officers are involved with cases that concern family matters. as in Australia and Singapore. it should be fairly noted here that the requirement of 'experience' of mediators in the MMC relates to the seven years experience as legal practitioners and not as mediators. discusses issues related to ancillary claims in divorce such as the maintenance of a wife during iddah. all sulh officers are now also equipped with counselling skills. (1) . issues related to ethics of a mediator and simulations of mediation sessions) attended by all pioneer sulh officers that was held one week after they were appointed in April 2002. in the context of mediation practice. Training Majlis Sulh in the Syariah Courts in the State of Selangor It is observed that sulh officers attended more substantive-based seminars n35 rather than skills-based workshops which could help them enhance their mediation skills.Page 5 The Malayan Law Journal Articles successful assessment at the end. n37 n36 However. n41 maintenance of the children andmutaah. However. They were accredited as counsellors with the Malaysian Department of Public Services in 2007. n38 Bar Council's MMC The mediators with the MMC were trained by trainers from foreign countries where mediation has already taken place in the court and also outside the court. they may also be considered as 'young' as the sulh officers. the mediation process. There was only one mediation. inter alia. Accord Group (Australia) and the University of Florida. Therefore. as mediation is not an alien practice in their countries.related seminar (which included. Australia can be seen as enriching the mediation skills of these sulh officers. as elaborated in the sub-heading entitled 'Majlis Sulh in the Syariah Courts in the State of Selangor' of this paper. Majlis Sulh which takes place in a Syariah Subordinate Court. n42 The sulh officers who were interviewed n43 regarded their roles to include the following: providing legal information on the Selangor Islamic family law and Hukum Syarak(Islamic law) especially in the Syariah Subordinate Courts where most parties are not represented by lawyers and are also ignorant of their legal rights n44 (Sulh officers also help parties to understand the relevant Syariah Court procedures). Since the nature of cases referred to Majlis Sulh concern either family or family-related matters. n39 In training mediators with the MMC. Lawyers Engaged in Alternative Dispute Resolution ('LEADR') Australia. the Bar Council's ADR Committee invited these foreign trainers because of their successful track record in their countries. Among the trainers were those from the Singapore Mediation Centre. n40 It was believed that these trainers would help to instill better mediation skills in their trainees/Malaysian lawyers.

n46 (3) not acting as a counsellor in MajlisSulh even though they may use some counselling skills in the private caucus. n49 The mediator is neither a judge. (4) simplifying parties' problem with the aim of finding a solution. thesesulh officers will remind parties that they are not bound to follow such suggestions (the suggestion does not curtail the principle of empowerment of parties to negotiate their own settlement agreement. Bar Council's MMC A mediator must be a good listener who appreciates and understands the other side's story. it is submitted that thesesulh officers see themselves as court staff with the obligation to educate parties concerning their legal rights and duties. (2) most parties in Syariah Subordinate Courts for example. the mediator gives suggestions/options to settle when the parties are stuck. nor a legal adviser. conform to the basic rules in Islamic law itself (the legal rights and duties in Islamic family law in Selangor particularly. are intertwined with those in Islamic law generally and this fact has promptedsulh officers to provide parties with the information on their legal rights and duties). guiding them to reach a peaceful settlement and persuading them to re-evaluate the reasonableness of their claims. n47 and (6) assisting parties to negotiate and to reach an amicable settlement. free from any power imbalance). who decides for the parties. It is observed from the interviews withsulh officers that: (1) in providing legal information about the rights and duties to both parties in MajlisSulh. Sometimes. the mediator will rely on the lawyers representing their parties to give them legal advice. In fact. even though enacted by different state legislative assemblies. which they normally do outside .Page 6 The Malayan Law Journal Articles n45 (2) as a middle person to two disputing parties. it is believed that it will help to empower them in negotiating their own terms of settlement. thus they are ignorant of laws relevant to their disputes (by providing both parties with the relevant information on their legal rights and duties. are not represented by lawyers. (5) helping the judges to ease their workload by attempting to reduce the number of cases pending in court. this is due to the fact that Islamic family laws in Malaysia. n48 Concerning the role ofsulh officers in providing legal information on the Selangor Islamic family law and Hukum Syarak.sulh officers regard themselves as fulfilling their obligations not only as Syariah court staff but also as Muslims. it is only meant to guide parties in their negotiation). not only in accordance with the Selangor Islamic family law but also in line with Hukum Syarak. and (3) in situations wheresulh officers give any suggestions to parties as to way(s) of possible settlement. who gives legal advice. The mediator must also help them see the interests of both parties. The mediator must help the parties to come out with solutions and explore these solutions.

As to the role of providing legal information. 5. which contains eight terms. they also see their role as helping to reduce the workload of judges as well. (a) Requirement that mediator must be impartial and fair to parties. n50 The mediator is actually a facilitator of a communication process n51 between the parties whereby he or she has to create an environment in which the parties are able to discuss their differences in a positive and conducive environment. like how to deal with a conflict effectively. can be found in items 3(a). the practice of MMC mediators differs from that ofsulh officers. thesesulh officers have their Manual Sulh. (c). 7(iv). free from any imbalances of negotiating power. Code of ethics and mediation rules Majlis Sulh in the Syariah Courts in the State of Selangor There is only one code of ethics. This is seen to be a major difference between mediation in the MMC and the MajlisSulh in Selangor Syariah Courts. However. Both MMC mediators andsulh officers regard mediation as an 'assisted negotiation'. As for the specific guidelines in the stages to be specifically adopted in Majlis Sulh. these sulh officers have theSulh Rules 2001 to guide them generally in conductingMajlis Sulh. The mediator also relies on the respective lawyers to explain to their clients the advantages and disadvantages of an open court trial. which governs the ethics ofsulh officers. (viii) and 8(i). is helpful in their pursuit to guide parties to negotiate their own terms of settlement. (1) Similarities. (i) The relevant provision for MMC mediators is r 19. (h). whereby a mediator with MMC is only excluded from any liability to parties or any other person for any act or omission in connection . sincesulh officers can be equated to court-annexed mediators. MMC mediators must also abide by the MMC Mediation Rules which contain 21 rules.1 and 6. In contrast to MMC mediators. They also help parties to generate their options for settlement and refrain from acting as counsellors. known as Kod Etika Pegawai Sulh. n52 It is observed that the roles of MMC mediators andsulh officers seem to be consistent to each other. Bar Council's MMC The MMC mediators are subjected to the MMC's Code of Conduct. In addition to the Code of Conduct. (ii). The mediation rules explain matters pertaining to the mediation process as a whole. thus avoiding any kind of interest including financial and personal interests. in substance. (i) The relevant provisions for MMC mediators are term 2(a) and term 2(b) of the MMC's Code of Conduct and also rr 6. n54 The following paragraphs will specifically show many similarities. (iv) of the Code of Ethics for sulh officers and Manual Sulh. Bab 6(f).Page 7 The Malayan Law Journal Articles the mediation room. There is no mediation rule similar to that of the MMC. between the provisions relating to MMC mediators and sulh officers. they acknowledge that the knowledge of some counselling skills. from its initiation n53 until its termination.2 of the MMC's Mediation Rules. (b) The requirement that the mediator refrains from acting dishonestly. with only one difference.2 of the MMC's Mediation Rules. As forsulh officers. (ii) Similar provisions.

Bab 3 (i). (e) The requirement that the mediator maintains confidentiality.1 of the MMC's Code of Conduct. arbitrator or expert in regard to the mediation in any arbitral. can be found in item 4 of the Code of Ethics for sulh officers. Bab 3(i) generally states that. Therefore. in substance. if compared to the relevant provisions in the Code of Ethics for sulh officers and Manual Sulh. (i) The relevant provision for MMC mediators is term 1. Bab 8(b). (ii) Similar provisions. can be found in item 8(iii) of the Code of Ethics for sulh officers and Manual Sulh. (d) The requirement that the mediator ensures that the settlement agreement is reduced into writing and then signed by parties. in substance.3(c) of the MMC's Mediation Rules. (ii) Similar provisions. if the said mediator goes beyond these boundaries. Rules 15 and 16 show more detailed provisions with specific examples of matters covered by the confidentiality term. can be found in item 8(vii) of the Code of Ethics for sulh officers and Manual Sulh. whereby sulh officers are prohibited from acting dishonestly or acting in the manner that would tarnish the name of the Syariah Court. can be found in r 6 of the Sulh Rules 2001. (ii) A similar provision. in substance. can be found in item 3(b) of the Code of Ethics for sulh officers. (i) The relevant provision for MMC mediators is r 5. sulh officers must inform parties that they cannot be called in any kind of court proceedings which relate to the cases that they handled in Majlis Sulh. in substance.Page 8 The Malayan Law Journal Articles with any mediation conducted under the Mediation Rules insofar as the act or omission is neither fraudulent nor a dishonest misconduct. . at the commencement of Majlis Sulh. (ii) A similar provision. while Manual Sulh. can be found in r 6 of the Sulh Rules 2001 and Manual Sulh. whereby the prohibition is not only limited to testifying as a witness but also extends to testifying as a consultant. (ii) A similar provision. (ii) Similar provisions. (i) The relevant provision for MMC mediators is term 5 of the MMC's Code of Conduct.3 of the MMC's Mediation Rules. judicial or other proceedings. (g) The prohibition of mediators from being called as witnesses in connection with the mediations that they had conducted earlier. (i) The relevant provision for MMC mediators is r 15. in substance. (c) The requirement that the mediator attempts to conduct mediation expeditiously. (f) The requirement that the mediator assists parties to prepare their draft settlement agreement. Bab 3(g) and Bab 10. Item 8(vii) of the Code of Ethics for sulh officers prohibits sulh officers from acting as 'witnesses' or 'advisers' to parties. (i) The relevant provisions for MMC mediators are term 4 of the MMC's Code of Conduct and rr 15 and 16 of the MMC's Mediation Rules. then the exclusion of liability will be waived. in substance.

there were five cases which were still pending and one case was unsuccessful.674 cases representing 36% went for court trials. (ii) A similar provision. (2) Difference. (i) The relevant provision for MMC's mediators is r 17 of the MMC's Mediation Rules. in substance. with the assistance of the mediator.275 cases representing 62%. It is opined that for mediation to succeed.38%. whereby reference to Majlis Sulh will act as a stay of court proceedings and the registrar shall not fix the date for the trial of the case referred to Majlis Sulh within the period of three months from the date of the registration of such case in court. (ii) A different provision can be found in r 3(a) of the Sulh Rules 2001. A mandated mediation does not curtail the freedom of parties to choose either to settle or not to settle at the end of the session.121 cases filed in all Selangor Syariah Courts. If the parties can settle. can be found in Manual Sulh. n56 Bar Council's MMC As at 18 August 2008. Forty cases were categorised as 'closed' which included two cases in which the parties succeeded in settling prior to mediation. there seems to be more similarities than differences between the practices of MMC mediation andMajlis Sulh. he is allowed to suggest options for settlement to parties. while 3. it has to be mandated like that of Majlis Sulh. there were 155 cases referred to the MMC from the year 2000 until August 2008. (a) The provisions as to the stay of proceedings. Majlis Sulh had managed to settle 6. Return to Text . whereby reference to mediation does not act as a stay of any other proceedings. neither the court proceedings nor the arbitral proceedings. there were a total of 10. (i) The relevant provision for MMC mediators is r 12.1 of the MMC's Mediation Rules.61%. Majlis Sulh is in a better position than MMC mediation since it has been placed as part of the court processes. n57 CONCLUDING REMARKS As elaborated above. Parties in mediation are free to commence any of the above-mentioned proceedings at any stage of the mediation process. Forty-four cases were successful representing 28.Page 9 The Malayan Law Journal Articles (h) Although a mediator does not impose a settlement on parties. It should be fairly acknowledged that these two different bodies share a similar aim of providing parties in dispute with a private and confidential forum to discuss their dispute. while 18 cases were unsuccessful representing 11. the settlement should be r egarded as a better settlement compared to a judgment of the court because it is the result of their own negotiation. Bab 4. n55 Number of cases referred Majlis Sulh in the Syariah Courts in the State of Selangor From May 2002 to December 2007. As at 18 August 2008. Majlis Sulhcan be equated as a court-annexed mediation and sulh officers in the Selangor Syariah Courts are court mediators.

Selangor. i. as most court judgments end up with revenge and vengeance'. Siti Noraini bt Haji Ali Majlis Sulh di Mahkamah Syariah Selangor. YA Atras bin Mohamad Zin. They are referred to in YAA Dato' Sheikh Ghazali bin Abdul Rahman Pelaksanaan Sulh di bawah Pentadbiran Mahkamah Syariah. There may be among you someone who is more articulate in delivering his argument. Institut Kefahaman Islam Malaysia (IKIM). Sulh (Mediasi) Dalam Pentadbiran Mahkamah Syariah: Cabaran dan Masa Depan. 4-5 February 2002 at pp 2-3. n3 See Syed Khalid Rashid The Importance of Teaching and Implementing ADR in Malaysia.Amalannya Dalam Perundangan Islam in Seminar Kaedah Alternatif Penyelesaian Pertikaian Menurut Islam. So if I judge against your rights and in contradiction to the truth. 4-5 February 2002 at pp 3-4. in the 8th General Assembly 2003 at p 5 available at http://www. Kangar Travelodge.Amalannya Dalam Perundangan Islam in Seminar Kaedah Alternatif Penyelesaian n5 Pertikaian Menurut Islam. Institut Kefahaman Islam Malaysia (IKIM). n7 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001). in Seminar Isu-isu Mahkamah Syariah VII Penyelesaian Konflik Keluarga di Mahkamah Syariah: Peranan Sulh dan Keberkesananannya. Siti Noraini bt Haji Ali Majlis Sulh di Mahkamah Syariah Selangor. YAA Dato' Sheikh Ghazali bin Abdul Rahman Sulh (Mediasi) Dalam Pentadbiran Mahkamah Syariah: Cabaran dan Masa Depan. n4 Narrated by Ummu Salamah: the Prophet SAW said: 'I am a human being and you come to report about your dispute. Insaf. said: 'Bring those in dispute to peaceful settlement.Amalannya Dalam Perundangan Islam in Seminar Kaedah Alternatif Penyelesaian Pertikaian Menurut Islam. [2000] 1 ILR. Institut Kefahaman Islam Malaysia (IKIM). n6 Khutubul Zaman bin Bukhari Arbitration and Mediation in ASEAN: the Law & Practice. 5-6 November 2001 at pp 6-7. Kelab Shah Alam. 5 The second Caliph. The above sayings are translated from their Malay version as cited in YAA Dato' Sheikh Ghazali bin Abdul Rahman. in Seminar Undang-undang Keluarga Islam Selangor. 103 at p 107 and also Syed Khalid Rashid Factors Behind the Emergence of ADR in the World and ADR in Malaysia[2002] 1 LM at p 70. Dewan Besar. at pp iv-v.aseanlawassociation. International Islamic University Malaysia. (Surah an Nisa':128. Dewan Besar. YAA Dato' Sheikh Ghazali bin Abdul Rahman. and I judge based on the facts that I heard.org/ speechspubspub-malaysia. 29 January 2005 at p 4. do not take it as I may have given you a piece of the hell fire'. Seminar Kebangsaan Penyelesaian Pertikaian Alternatif. in Bengkel Penyelarasan Pelaksanaan Sulh di Mahkamah Syariah. at p iv. 5-6 November 2001 at p 6. in Seminar Undang-undang Keluarga Islam Selangor. YAA Dato' Sheikh Ghazali bin Abdul Rahman. Kelab Shah Alam.html. Sulh . Perlis. 114). Ahmad Ibrahim Kulliyyah of Laws. 5-6 November 2001 at pp 3-4. 21-23 August 1996 at pp 1-3. 26 September 2002 at pp 1-2. n2 See (Surah al Hujurat:9-10). This hadith is translated from its Malay version as cited in YAA Dato' Sheikh Ghazali bin Abdul Rahman. Umar ibn al-Khattab. . i. in Seminar Kebangsaan Penyelesaian Pertikaian Alternatif.Page 10 The Malayan Law Journal Articles FOOTNOTES: n1 Syed Khalid Rashid The Importance of Teaching and Implementing ADR in Malaysia[2000] 1 ILR. 26 September 2002 at p 3. Moot Court. Sulh . Sulh . Amalan dan Permasalahan Sulh di Mahkamah Syariah Selangor. Selangor. Dewan Besar.

n17 Rule 5. at Level 6 of Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah. a sulh officer at the Syariah High Court. The pamphlet was obtained on 1 February 2008. The fact that the model of mediation adopted is mainly facilitative in nature. n16 As stated at the front page of the MMC Mediation Kit. Selangor. n13 Above. Gombak Timur. terms and conditions for rental of the MMC's facilities. described such roles in Majlis Sulh were: Tuan Mohamad Ridzuan bin Zainudin. which includes the scale of fees of a mediator.Page 11 The Malayan Law Journal Articles n8 Syed Khalid Rashid Factors Behind the Emergence of ADR in the World and ADR in Malaysia [2002] 1 LM at p 70. Mediation Rules. Shah Alam. Shah Alam. n15 The pamphlet entitled 'Sulh (Mediasi)' can be obtained at the Syariah High Court. Ahmad Ibrahim Kulliyyah of Laws. n14 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001). Harun M Hashim Law Centre. on 1 February 2008. is further supported by the interviews conducted. when he was a sulh officer at the Syariah High Court. . n11 See ibid. Selangor who was first interviewed on Friday. All sulh officers described their substantial role of facilitating parties to discuss and negotiate their own settlement agreement. among others. 16-18 August 2008 at p 9. 6 August 2004. Code of Conduct. n 11. The 'Mediation Kit' contains an explanation to the Malaysian Mediation Centre. who was first interviewed on Friday. 103 at p 107. Selangor. Sulh officers interviewed whom. A follow-up interview was conducted on 11 September 2008. IIUM. Insaf. in the 4th Asia Pacific Mediation Forum Conference. etc. n12 See the first page of Manual Sulh. Shah Alam. Shah Alam. 15 October 2004. Selangor. n9 Quoting the first page of the MMC 'Mediation Kit'.3(d) of the MMC Mediation Rules. n10 Nora Abdul Hak Qualities of a Mediator in Family Disputes: The Shariah Perspective. Puan Siti Noraini. Tuan Khairul Azwadi. Bab 2. It was purchased at the Bar Council on 10 September 2008. asulh officer at the Syariah Subordinate Court. A follow-up interview was conducted on 25 January 2008.

Page 12 The Malayan Law Journal Articles n18 See the front page of the MMC 'Mediation Kit'. Selangor. which may either be an agreement concluded. one of the first batches of sulh officers appointed in May 2002. A stage after the private caucus but prior to mediation outcome is the stage where the mediator will facilitate negotiation of parties when the joint session after the private caucus is resumed. obtained on 1 February 2008 at the Syariah High Court. n19 As stated at the front page of the MMC 'Mediation Kit'. She was first interviewed on Monday 27 September 2004. Shah Alam. All these stages are focused on past problems of parties. and finally clarification and exploration of issues. Shah Alam. the mediator's opening is then followed by the parties' statements. . 6 August 2004. Selangor. The interview was made on 29 August 2008. 29 January 2005 at p 3. He was first interviewed on Friday. n26 Information obtained from an interview with Tuan Mohamad Ridzuan bin Zainudin. A follow-up interview was conducted on 25 January 2008. at Level 6 of Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah. n25 Source obtained from pamphlet entitled Sulh (Mediasi). n23 It is viewed that this stage can be accurately referred to as 'mediation outcome'. International Islamic University Malaysia. n22 This is the starting point to focus on future solutions. mediator's summaries. seeibid. n21 In the joint session. at Level 6 of Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah. see ibid. Selangor. Shah Alam. Shah Alam. Shah Alam. or an adjournment of agreement or even a termination without any agreement. Selangor. who is a sulh officer at the Syariah High Court. Shah Alam. identification of issues and agenda setting. Ahmad Ibrahim Kulliyyah of Laws. and (2) Ms Gunavathi Subramaniam. n24 Sources obtained from: (1) Pamphlet entitledSulh (Mediasi). A follow-up interview was conducted on 10 September 2008. obtained on 1 February 2008 at Syariah High Court. n27 Information obtained from an interview with Tuan Mohd Nurulazhar. He is now a research officer at the same court. when he was asulhofficer at the Syariah High Court. in Seminar Isu-isu Mahkamah Shariah VII Penyelesaian Konflik Keluarga di Mahkamah Shariah: Peranan Sulh dan Keberkesanannya. Moot Court. n20 This was referred to as the Mediator's Opening Statement by Puan Yasmin bt Shariff. see ibid. an MMC mediator and also a member to the ADR Committee of the Bar Council. Caucus is also known as a private session. See Yasmin bt Shariff Prospek Mediasi Keluarga.

A follow-up interview was conducted on 11 September 2008. when he was asulh officer at the Syariah High Court. See also Pelaksanaan Sulh di Mahkamah Syariah Sejarah and Perancangan. Selangor. Tuan Khairul Azwadi. The list of seminars that these sulh officers attended between 15 April 2002 to 8 December 2004 as provided by Tuan Mohamad Ridzuan bin Zainudin. The change would eliminate the seven-year requirement of being in active practice as an advocate and solicitor of High Court. and Puan Siti Noraini. on 1 February 2008.au/. in 8 General Assembly 2003. Jurnal Hukum. through a tele-conversation on 11 September 2008. Selangor on 29 August 2008. n34 At the time of writing this paper. 15 October 2004. . n30 Information obtained from: Tuan Mohd Nurulazhar. matters relating to Islamic law of evidence.html. n32 Source obtained from Ms Marianna Tan. industry dispute resolution systems and training. asulh officer at the Syariah High Court. n29 The Accord Group is an international dispute resolution firm specialising in mediation. who was first interviewed on 6 Friday August 2004 showed that seminars attended by sulh officers included substantive and procedural matters in various aspects of Islamic family law. Gombak Timur. (Anon). at p 5 available at http://www. Selangor on 29 August 2008. Syawal 1424H/Disember 2003. Australia with international associates. 103 at p 107. the ADR Committee of the Bar Council was in the midst of changing this requirement. A follow-up interview was conducted on 25 January 2008.accordgroup. Source obtained from http://www. Selangor. who was first interviewed on Friday. n33 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001). Insaf. 65 at p 82. Selangor who was first interviewed on Friday. The other two requirements will remain unchanged.Page 13 The Malayan Law Journal Articles n28 Source obtained from interviews with: Tuan Mohamad Ridzuan bin Zainudin. and courses connected to skills in counselling. a sulhofficer at the Syariah High Court. Assistant Director of the Bar Council's MMC. In this type of seminars.com. Shah Alam. It is based in Sydney. Source obtained from a tele-conversation on 10 September 2008 with Ms Gunavathi Subramaniam. Shah Alam.org/ speechspubspub-malaysia. Shah Alam. a sulhofficer at the Syariah Subordinate Court. the MMC's accreditation of mediators will also be opened to other professionals like academicians and architects. who is also a member to the ADR Committee of the Bar Council. 6 August 2004. n31 Khutubul Zaman bin Bukhari Arbitration and Mediation in ASEAN: the Law & Practice. Malaya. Syariah Court administrative matters. n35 I define this term to mean seminars with speakers presenting seminar papers followed by question and answer sessions.aseanlawassociation. a sulh officer at the Syariah High Court. for example managing conflict resolutions. and Tuan Mohd Nurulazhar. the participants are not actively involved and the speakers dominate the sessions. Shah Alam. Additionally. a mediator with MMC.

after experiencing many simulation-exercises. Selangor. the mediator. Shah Alam. n40 See ibid. Selangor.Page 14 The Malayan Law Journal Articles n36 I define this term to mean workshops where there is less participation on the speakers' side. A follow-up interview was conducted on 25 January 2008. He was also one of the committee members that were involved in the making of Manual Sulh to serve as guidance tosulh officers in Selangor. If the woman does not menstruate. rather than acting as a forum of providing information in the form of seminar papers. muta'ah is the name of the property that is paid or given by a husband to his wife because of the separation with the wife. ibidat p 347. Selangor. on 1 February 2008. a sulhofficer at the Syariah Subordinate Court. n38 Information obtained from Puan Siti Noraini. and Puan Siti Noraini. asulh officer at the Syariah Subordinate Court. International Islamic University Malaysia. The activities in these workshops are geared on the aim of improving specific skills of the participants. see. Kuala Lumpur: MLJ. her iddah is only three months. n41 Iddah or eddah refers to the waiting period imposed on a wife who is divorced by the husband. The speakers act more as facilitators who guide the participants in being actively involved in the workshops conducted. At the end of the course. Gombak Timur. Shah Alam. The waiting period normally lasts for three months and ten days reflecting three menstrual cycles in the case of iddah after a divorce. Hotel Quality. Australia. when he was asulhofficer at the Syariah High Court. 15 October 2004. n37 It was a three-day seminar. party A and party B. at pp 108-109. n43 Interviews with: Tuan Mohamad Ridzuan bin Zainudin. The role-plays were based on simulation exercises conducted by LEADR. which I was involved in. It is payable in all cases of divorce. The sessions comprised many simulation exercises where students took turns to play three different roles in the role-plays. emulated the MMC's model in training its mediators. Gombak Timur. These mediation skills-based sessions. in my capacity as a student. the rich according to his means and the poor according to his means. a sulhofficer at the Syariah High Court. 1999. a former lecturer in Ahmad Ibrahim Kulliyyah of Laws. A follow-up interview was . in semester two of the ADR course during the period between the end of 2003 to February 2004. 15 October 2004. Shah Alam. Selangor who was first interviewed on Friday. I personally experienced some mediation skills-based sessions. Family Law in Malaysia. except where the divorce is at the instance of the wife because of the defect on the part of the husband or it is afasakh divorce because of the defect or fault of either party. Even the trainers who assessed the students' mediation skills at the end of the course were actually trainers or coaches who had experienced training MMC's mediators. see Mimi Kamariah Majid. for example mediation skills. One of the speakers that specifically talked about areas related to mediation was Salled Buang. The Manual Sulh was then issued on 17 July 2002 by the chairman of the said committee. Insaf. 103. students' mediation skills were assessed by the trainers. Kursus Mediasi/Sulh Mahkamah Syariah Selangor. This ADR course is one of the courses offered in the Masters programme (LLM) at the Law Faculty. n39 Yong Yung ChoyAlternative Dispute Resolution (Mediation) in Malaysia (December 2001). The Quran did not specify to the effect that muta'ahshould be paid. YAA Dato' Sheikh Ghazali bin Abdul Rahman. n42 According to the often-quoted Kifayah al-Akhyar. or whose husband has passed away. 22-24 April 2002. 6 August 2004. at p 131. Selangor who was first interviewed on Friday. who was first interviewed on Friday. Tuan Khairul Azwadi. University of Malaya. Where the husband has passed away the iddah lasts for four months and ten days. at p 106. The interview was later updated through a tele-conversation on 11 September 2008.

in a small number of cases where parties are not represented by lawyers. The same was also mentioned by Ms Gunavathi Subramaniam. information obtained from Tuan Mohamad Ridzuan bin Zainudin. 26 October 2004. International Islamic University Malaysia. n48 Ibid. . She agreed to be interviewed on the condition of anonymity. in Seminar Isu-isu Mahkamah Shariah VII Penyelesaian Konflik Keluarga di Mahkamah Shariah: PerananSulh dan Keberkesanannya. She was first interviewed on Monday. an MMC mediator and also a member to the ADR Committee of the Bar Council. n51 Mediation reduces obstacles to communication between parties. 29 January 2005 at p 4. prepared by Tuan Mohamad Ridzuan bin Zainudin.Page 15 The Malayan Law Journal Articles conducted on 11 September 2008. Shah Alam. prepared by Tuan Mohamad Ridzuan bin Zainudin. Yasmin bt Shariff Prospek Mediasi Keluarga. He agreed to be interviewed on the condition of anonymity. n52 A statement made by Mr Phee Boon Leng. n45 Information from Maklumat dan Kertas Kerja Pegawai Sulh. who was interviewed through email. His reply to the questions of the writer was made through an email on Friday. 2002 at p 3. 28 October 2004. who was interviewed in Johor on Tuesday. a lawyer and an MMC mediator. Mahkamah Syariah Selangor. see n 49 and n 50. A follow-up interview was conducted on 10 September 2008. n49 A statement made by one MMC mediator. see n 43. 27 September 2004. who was interviewed in Kuala Lumpur on Thursday. at p 3. 8 October 2004. This facilitative role of a mediator was also mentioned by two other mediators. n50 A statement made by one MMC mediator. Moot Court. n46 Information obtained from Puan Siti Noraini see n 43. Mahkamah Syariah Selangor 2002. thus they lack understanding of the relevant laws. Ahmad Ibrahim Kulliyyah of Laws. n47 See n 44 and also information from Maklumat dan Kertas Kerja PegawaiSulh. n44 The practice of providing legal information on the Selangor Islamic Family Law and also Hukum Syarak (Islamic Law) is also done in the Syariah High Court.

29 January 2005 at p 7. the case will be immediately forwarded to the relevant Shariah judge for endorsement to give effect to a consent judgment. Moot Court. n55 Rule 3(a) of the Civil Procedure Rule (Sulh) of Selangor 2001 reads together with YA Dr Atras Mohamad Zin Amalan dan Permasalahan Sulh di Mahkamah Shariah Selangor. Shah Alam. The record of cases dealt with by the MMC as at 18 August 2008 was sent through email to the writer of this paper on Thursday.Page 16 The Malayan Law Journal Articles n53 See rr 3 and 4 of the Mediation Rules. . International Islamic University Malaysia. The three-month period given is for a particular 'sulh officer' to conduct Majlis Sulh. Ahmad Ibrahim Kulliyyah of Laws. Selangor on 29 August 2008. a sulhofficer at the Syariah High Court. n54 See r 18 of the Mediation Rules. If parties in the case referred to Majlis Sulh can achieve a mutual settlement at any time before the three-month period expires. n56 Source obtained from Tuan Mohd Nurulazhar. in Seminar Isu-isu Mahkamah Shariah VII Penyelesaian Konflik Keluarga di Mahkamah Shariah: Peranan Sulh dan Keberkesananannya. the Assistant Director of the Bar Council's MMC. 11 September 2008. n57 Source obtained from Ms Marianna.