MEDIATION
Legal practitioners usually undergo training in Mediation with the perception that they already have the skills of a Mediator by virtue of being in legal practise for some years. As the Mediation process unravels, one begun to understand that Mediation is more than just an alternative form of resolving dispute that one can resort to other than being subjected to litigation.
Mediation can be described as a branch of knowledge that deals in different forms of communication skills. The communication skills required that of a Mediator is significantly different than that of a Litigator, Arbitrator or someone of equivalent stature.
Unlike Arbitration and Litigation that are adversarial in nature and results in one party winning and losing, Mediation is a process that seeks to facilitate parties to communicate with each other and to arrive at their own conclusion that strikes a balance of needs between the parties.
Due to the differences in terms of objectives and purposes that Litigation, Arbitration and Mediation respectively seek to achieve, the language used in Litigation and Arbitration shall not, as a matter of rule, be used in Mediation. The language used in Mediation is designed for specific purposes and reflect the need for the Mediator to have the right psychological mind to conduct the Mediation process. If a Mediator cannot appreciate this fundamental aspect of Mediation, the Mediation process would not be successful.
Of vital importance is the pre-requisite for the Mediator to be impartial where the attributes of impartiality shall have to be measured in terms of the language used verbally including body language in terms of manners and behavior pattern throughout the Mediation process.
Any usage of improper language that may have the effect of making the parties feel that they are being adjudged, advised, suggested, directed, coerced, influenced and other negative connotations shall render the Mediation process being liable to be halted and thus, failed in its objectives.
Thus, the Mediator is being tested in every aspect in terms of his or her communication skills. A legal practitioner who endeavors to mediate without due regards to these fundamental aspects of Mediation, would find themselves deviating from the actual process of Mediation as it is supposed to be conducted and consequently, may not reach the desired results.
It is of no surprise then that we may find that there may be people from non-legal background who make the best Mediators. Mediators who are not from legal background are not skewed towards viewing the situation they are considering from mainly a legal perspective. That leaves them with the liberty to view things more objectively as they would not be caught in the legal dilemma of deciding among others, between rights and interests, imposing their solution and generally a view that as lawyers, they know whats best for the parties.
The skills of a Mediator is unique as it requires the Mediator to have a deeper understanding of human relationships and how to bridge the gap between parties who have been set far apart by their dispute.
Consequently, the values that are being inculcalated in a person before he or she is ready to be a Mediator are values that overall, enables a person to appreciate the traits of humanity in a more fulfilling way. In terms of skills, it translate into a person being able to deliver legal practise in a more efficient manner.
It is with these objectives that the Association of Muslim Lawyers Malaysia (“the Association”) offered to conduct the Mediation course for the benefit of its members. This year, two such courses took place in March and in May 2012. The training and certificate facilitated by the Association was conducted and issued by the Accord Group, Australia, an international dispute resolution firm with international accreditation and network.
Members who had been assessed and deemed qualified by the Accord Group were invited to attend the Advance Course that was held in Sydney, Australia in July 2012. Members were privileged to have been exposed to sharing of experiences delivered in lectures by international experts in negotiations in various aspects of law.
These efforts by the Association exemplifies the aspirations of the Association to embark on a programme to enhance the level of skills of its members.
The recent proposed amendments to the Legal Profession Act would pave the way for foreign lawyers to practise in Malaysia including in ares that are dominated by local lawyers. Effectively it would mean that unless local lawyers embark on a competency enhancement programme and efforts, local lawyers would be superseeded by foreign lawyers in terms of competency and network. With the liberalisation of legal services that is set to be fully implemented in 2015, members have to take cogent steps to increase their level of competency and to be part of the international legal services providers community.