Introduction
With the Courts advocating mediation together with the advent of mediation centres to mediate disputes between the parties, mediation has really come a long way in this country.
However, looking at it closely, can mediation go to great heights to the extent it takes centre stage in legal disputes?
Would mediation grow to such an extent that it would be at the forefront of lawyers' and litigants' minds alike? To that end, one has to examine closely the role and the extent mediation comes into play in legal matters.
Resistance by Lawyers?
One would have to raise the following questions:
- Is there resistance to mediation by lawyers?
- If so, why?
Once these questions are addressed, then it would explain the question in the title of this article.
The two questions can be taken together.
Early mediation and fees
In my view, early mediation may affect lawyers' income. I stress the word early mediation.
Supposing a client comes to the lawyer's office and says:
I want to sue this person because he has not paid for the RM2 million worth of goods he bought from me. I have all the documentary proof that shows he accepted my goods. I want to sue him in Court.
What would the lawyer do? What is the lawyer's mindset? Would he advise the client to go to mediation first?
If the lawyer advises his client to go for early Mediation and the dispute is resolved, the lawyer may risk losing the legal fees he may obtain from the client compared to if the matter had first been filed in Court. The lawyer may risk losing out on legal fees for issuing a letter of demand, issuing the Writ and Statement of Claim, preparation for interlocutory proceedings, preparation for Case Management, and the Trial itself.
No doubt as lawyers, their role is to act for their client's best interest and at the same time to uphold the rule of law and the tenets of justice. At the same time, however, it is also important for a lawyer to generate income for himself.
So, what should the lawyer do? Are there any examples of early mediation in the legal field which a lawyer can use as a guide?
An Early Mediation Example: The Conciliation Body
Long ago in the area of family law, Malaysia enacted the Law Reform (Marriage & Divorce) Act 1976 ('Act') which contains a form of early mediation, namely the Conciliation Body.
Under Section 106 of the Act, a spouse wanting to file a contested Divorce Petition has to first proceed to the Conciliation Body.
The purpose of the Conciliation Body is exactly what it states: Conciliation.
The drafters of the Act thought it fit that a Conciliation Body be set up for the purposes of reconciling a husband and wife, as they viewed marriage as a sacred institution and saw the need to preserve a family unit so as to avoid the bitterness of divorce and a broken home which may scar the children for life.
Hence, the introduction of the Conciliation Body.
Led by a panel of 3 members, the panel engages with the spouses directly without the presence of legal advisors and will try to assist the husband and wife to reconcile, to help save their marriage, and to help save a family. This appears to be a statutory form of early mediation to resolve disputes. A noble idea indeed.
However these days, it appears that litigant spouses view the Conciliation Body as a mere formality organisation for the purposes of obtaining a certificate before the contested divorce petition is filed in Court.
So, back to the lawyers' position. What would the lawyer's fee be in a Conciliation Body matter? Lawyers are not allowed to be present in the Conciliation proceedings except with leave from the Conciliation Body itself, and in any event, the panel in the Conciliation Body are the ones engaging directly with the spouses.
It appears that better income may be generated for legal advisors when the contested Divorce Petition is filed in Court. There is the Divorce Petition itself right up to the Trial of the divorce, including interim applications such as Interim Maintenance applications, Interim Custody applications, and so forth.
Academic Commentary on Lawyers' Resistance
In an article by Professor Archie Zariski called Lawyers' Resistance To Mediation: Evolution and Adaption [2011] 1 LNS(A) Ixix, he wrote:
The multi-door courthouse concept involving mediation represented a clear risk to lawyers' incomes. Disputes that were diverted away from litigation would never generate legal fees. No doubt this pecuniary interest in maintaining their livelihood motivated many lawyers to shun that vision of a justice system. Plaintiffs' lawyers with contingency fee arrangements find that settlement is preferable to trial and are often more amenable to alternatives. The other side of the coin is that defendant lawyers who bill based on hourly rates do not welcome an early end to litigation. Most lawyers have accepted mediation in situations where it does not entail loss of business. Thus, minor disputes that did not justify legal services may be taken to community mediation services. Similarly for other cases lawyers consider uneconomic or unpalatable such as inmate actions over prison conditions, minor criminal offences, and landlord and tenant disputes. For such cases, mediation is a fine alternative.
When Mediation Works Better
This does not mean that this writer is opposed to mediation. It must be understood that mediation is here to stay. Mediation will definitely assist lawyers.
Mediation may come in handy when the matter is set down for trial. Instead of going for a full blown trial, lawyers may be amenable to have the matter mediated. So too their clients.
Some litigants tend to be over-zealous at the commencement of the dispute. He may say:
I will sue him for everything he has got. I know my rights. I have all the evidence. I will teach him a lesson for messing around with me.
However, on the day of the trial, the client may be a little subdued or a little nervous, considering that days before the Trial, the client has to go through the Bundle of Pleadings and the Bundle of Documents, and at the same time the thought of what the opponent Counsel is going to ask him during Cross Examination.
For example in defamation cases, when the plaintiff has read all the Pleadings and Bundle of Documents and is ready for trial, the plaintiff may just end up thinking to himself that:
Even though I am the plaintiff in this case, there is a possibility that I may end up losing and end up paying the other side's legal costs. I don't have a peace of mind. All I want is for the defendant to say sorry to me. I don't want his money and that will be the end of the matter.
Hence when mediation is proposed, litigants and lawyers tend to be amenable, considering it may save time and costs compared to a long protracted trial.
When the mediation is conducted, it is chaired by someone of authority like a judge or a certified mediator. When the litigants hear it from the judge or a certified mediator, they may tend to listen to them as opposed to their own legal advisors who advised them the very same thing which the judge or the certified mediator has said. In such instances, mediation between the parties tends to be more successful.
Understanding the Concept of Mediation
The other aspect which would lead to the effectiveness of mediation is understanding the concept of mediation.
Some may view that mediation is settlement negotiations conducted by Court. This is a common misconception.
As said by Professor Archie Zariski in his article Lawyers' Resistance To Mediation: Evolution and Adaption (supra):
... there is growing evidence that it has displaced other settlement efforts by lawyers, resulting in less overall settlement activity. Lawyers let mediators do the settling.
Many a time once a dispute has arisen, a barrier will be put up. Litigants do not speak to each other anymore. They speak through their lawyers. Once this happens, it is more of rights, law and facts. Mediation is a process to help parties communicate directly with each other and to assist parties to explore the possibilities of a resolution.
Now sometimes, when a lawyer says to the Opponent lawyer:
Let's fix this case for mediation and let this case be mediated between the parties before the judge.
Then the Opponent lawyer replies:
We will leave it to the court to decide'; or
My client's instructions are to leave it to the court to decide.
This already shows another form of misconception about mediation.
In mediation, the Court or the certified mediator does not decide on the Case. There is nothing to decide. As said earlier, mediation is a process to assist parties to communicate directly with each other and to assist parties to explore possibilities.
Sometimes during the mediation, for every issue which is discussed between the parties, the client may seek his lawyer's advice. No doubt his lawyer is to advise and to act for his client's best interest, but this may actually end up causing the mediation process and ultimately a resolution to fail.
A cautionary anecdote
About a year ago, I remember reading an article on the Court Notice Board which went something like this:
This case was on-going for the past 14 years. One day the case was fixed for Case Management and the lawyer attended Court for the Case Management. When he returned to the office, he proudly told the partner, I managed to settle this old case in just one mediation sitting. The partner replied, You fool!!! Why did you settle the case. This is the case which paid for your education!!!
This is where lawyers and litigants must take the effort to have some basic understanding of the concept of mediation.
In Professor Archie Zariski's article, Lawyers' Resistance To Mediation: Evolution and Adaption (supra), he noted the following:
The situation in Malaysia is no different. For over a decade the Malaysian Bar Council and its officers have promoted the use of mediation, and have created a mediation facility for use by litigants. High ranking members of the judiciary have extolled the virtues of mediation. Yet interest by lawyers remains low. The mediation facility is underused, and a recent survey of the Malaysian Bar on the subject of mediation conducted by Datuk William Lau and the writer gained a response rate of less than one percent.
Conclusion
With today's technological advances, information on mediation is accessible. The information is out there waiting to be tapped. Lawyers and the public must be pro-active to educate themselves on the concept of mediation.
Mediation is a useful arena where parties can voice directly with each other their real intention and the possibility of coming to a resolution.
In this writer's view, once the concept of Mediation is understood and when it should be applied, then Mediation may take centre stage in the legal arena.
Advocate & Solicitor