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  • i

    COURT-ANNEXED AND JUDGE-LED MEDIATION IN CIVIL

    CASES: THE MALAYSIAN EXPERIENCE

    Alwi Abdul Wahab

    A thesis submitted in total fulfilment of the

    requirements for the degree of

    Doctor of Philosophy

    College of Law and Justice

    Victoria University of Melbourne

    October 2013

  • ii

    ABSTRACT

    This thesis maps the present situation of court-connected mediation in Malaysia. Such

    mediation takes two forms: court-annexed mediation undertaken by a private mediator

    and judge-led mediation undertaken by a judge. It traces the growth and development

    of mediation in Malaysia; investigates the factors that impact upon the success of

    mediation in other jurisdictions; and identifies the barriers and the enablers to the

    uptake of court-connected mediation in Malaysia. It examines in this context theories

    of mediation, justice and change management. It reviews the literature on these and on

    the development of mediation in selected common law jurisdictions. Its findings are

    drawn from that literature and also from two empirical studies: a survey of lawyers in

    Sabah and Sarawak and interviews with selected interviewees in East and West

    Malaysia, including judges. The findings identified that the use of mediation has been

    driven by: its utility in reducing court backlogs; increasing knowledge of the benefits

    of mediation; leadership by the judiciary, professional associations and government;

    training and exposure; and traditional practices of mediation. The findings also

    identified that three key stakeholders have resisted mediation: judges, lawyers, and the

    public. This is related to their attitudes and prevailing professional cultures. Judges

    fear a loss of judicial authority. Lawyers fear losing income. The public lack

    knowledge of mediation and see judges as the appropriate decision makers to decide

    their disputes. The thesis also reveals that a sizeable minority of lawyers feel they do

    not have a significant role in advising their clients to mediate. This is identified as a

    key barrier to the greater use of mediation in other jurisdictions. The implications of

    the findings are that if mediation is to play a greater role in the Malaysian civil court

    system then a greater emphasis on education and awareness of the importance of

    mediation and its benefits amongst stakeholders is required. It makes a number of

    recommendations for the more effective use of court-connected mediation including

    consideration of mandatory mediation.

  • iii

    DECLARATION

    I, Alwi Abdul Wahab, declare that the PhD thesis entitled Court-annexed and Judge-

    led mediation in Civil Cases: The Malaysian Experience is no more than 100,000

    words in length including quotes and exclusive of tables, figures, appendices,

    bibliography, references and footnotes. This thesis contains no material that has been

    submitted previously, in whole or in part, for the award of any other academic degree

    or diploma. Except where otherwise indicated, this thesis is my own work.

    Signature_________________________ Date:

  • iv

    ACKNOWLEDGEMENTS

    Looking back over my four years of study, I have to say that this PhD journey has been

    a very challenging learning experience as it really tested my patience, endurance and

    strength. Nonetheless it has been one of the most exciting times of my life, and no one

    word could exactly describe the treasures it has brought to me.

    In completing this journey, I am deeply grateful to many people without whose help

    and support this research would not have been possible. My deepest thanks and

    gratitude goes to my respected supervisors, Professor Neil Andrews and Professor

    Bernadine Van Gramberg, who have contributed immensely towards the completion

    of this thesis. Professor Bernadine supervised the early stages of the research, helping

    me to develop the proposal and continuing to provide her invaluable supervision in the

    direction of the thesis. Professor Neil has inspired and prompted me to develop and

    explore further with his critical thoughts and meticulous reading of the many drafts of

    this thesis. I am indebted to both beyond expression and repayment.

    My sincere appreciation also goes to the Chief Judge of Sabah and Sarawak, Tan Sri

    Richard Malanjum, for his encouragement in my taking up this enormous challenge,

    and unwavering support throughout the study. The officers and staff of the High Court

    and the Lower Courts, Kuching were also cooperative in assisting me whenever I

    needed help. Furthermore, I sincerely want to thank the many participants who agreed

    to take part in this study and share their insights and ideas with me.

    I also extend my thanks to the Public Service Department, Malaysia for providing the

    scholarship that has enabled me to undertake this research. In Australia, my

    appreciation goes to the Victoria University administrative staff in the School of

    Management and School of Law, the Office of Postgraduate Research and IT

    helpdesks, for providing me with assistance, training and support during the study.

    Special thanks go to Tina Jego, the student advice officer, for being prompt in

    answering my queries and problems in all administrative matters related to my study,

    and to Murray Greenway of the Law School library for being incredibly

    accommodative and supportive in my requests for materials.

    Finally, but most importantly, I thank my beloved parents, wife and children to whom

    this thesis is dedicated. To my dearly loved wife, Nur Jamilah Abdullah and beloved

    children, Aiman Nabila, Aydiel Putra and Alissa Sofea, I can find no words to utter,

    except thanks for being the towers of my strength when I needed them the most in my

    struggle to complete this research.

  • v

    PUBLICATIONS ARISING FROM THIS RESEARCH

    Abdul Wahab, A & Van Gramberg, B 2010, 'Court-annexed and judge-led mediation

    in civil cases: The Malaysian experience', Australian Dispute Resolution

    Journal, vol. 21, no. 4, pp. 251-8. (ERA ranking B)

  • vi

    TABLE OF CONTENTS

    TITLEi

    ABSTRACT ................................................................................................................. ii

    DECLARATION ........................................................................................................ iii

    ACKNOWLEDGEMENTS ........................................................................................ iv

    PUBLICATIONS ARISING FROM THIS RESEARCH ............................................ v

    TABLE OF CONTENTS ............................................................................................ vi

    LIST OF FIGURES .................................................................................................. xiv

    LIST OF TABLES ...................................................................................................... xv

    1.0 Introduction .................................................................................................... 1

    1.1 Background to the research ............................................................................ 2

    1.2 Purpose and research objectives ................................................................... 11

    1.3 Justification and contribution of the research ............................................... 11

    1.4 Significance of the thesis .............................................................................. 12

    1.5 Limitation and scope .................................................................................... 13

    1.6 Approach and Methodology ......................................................................... 13

    1.7 An Overview of the thesis ............................................................................ 14

    1.8 Chapter Summary ......................................................................................... 17

    2.0 Introduction ................................................................................................. 18

    2.1 What is ADR? ............................................................................................... 18

    2.2 The categories of ADR ................................................................................. 20

    2.2.1 Facilitative ADR ........................................................................................... 20

    CHAPTER 1 INTRODUCTION TO THE THESIS .......................................... 1

    CHAPTER 2 THE GROWTH AND DEVELOPMENT OF

    ALTERNATIVE DISPUTE RESOLUTION ............................ 18

  • vii

    2.2.2 Advisory ADR .............................................................................................. 22

    2.2.3 Determinative ADR ...................................................................................... 23

    2.3 Facilitative ADR versus adjudication ........................................................... 24

    2.4 Development of ADR in USA ...................................................................... 26

    2.5 Development of ADR in UK (England and Wales) ..................................... 29

    2.6 Development of ADR in Australia ............................................................... 34

    2.7 Development of ADR in Malaysia .........................................................