Penang’s Justices of the Peace Invest in Community Mediation

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Malaysia has a strong tradition of people involved in a dispute to seek the assistance of an elder or penghulu to guide them towards a resolution. Community mediation generally focuses on neighbourhood conflicts, with trained local volunteers serving as mediators, often working pro bono or at a nominal fee.

Typical types of community mediation are disputes between landlords and tenants, members of homeowners’ associations, and small businesses and consumers. The mediators often serve those who cannot afford to go through the court process, or they provide professional alternative dispute resolution services.

As eminent and trusted members of the community, Justices of the Peace (JPs) have traditionally been ideal mediators. In May this year, for the third time since 2016, a mediation-training course was jointly organised by the Council of the Justices of the Peace Penang and the Asian International Arbitration Centre (AIAC, formerly known as KLRCA) to train new mediators.

The Council of JPs Penang had established a Mediation Bureau in July 2017, which was officially launched by the Yang di-Pertua Negri Tun Abdul Rahman Abbas. This bureau is the first JP organisation in Malaysia to offer free-of-charge mediation services, and pre-action mediation services for disputes in the state of Penang. These services are also meant to ease pressure on the courts, and provide a faster and cheaper form of dispute resolution for the public. This also provides important work for JPs, who have seen their role diminish drastically in recent years.

Where court and legal proceedings are concerned, mediation is a fairly new form of dispute resolution. As explained by High Court Judge Dato’ Lim Chong Fong in his address at the Mediation Skills Course on May 19, mediations may be classified into pre-action mediations and court-annexed mediations. In the former, mediation is undertaken before the dispute is brought to court while in the latter, mediation is part of the court process.

Pursuant to Practice Direction No. 4 of 2016, dated June 30, 2016, entitled “Practice Direction on Mediation”, pertaining to the settlement of matters before the court by way of mediation, Dato’ Seri Markend Joshi JP and Dato’ Ong Seng Huat JP had both been appointed to undertake free-of-charge court-annexed mediation. However, this Practice Direction has been put on hold pending a new Practice Direction of the Court.

At the recent Annual Conference of the Judiciary earlier this year, it was determined that mediation may become compulsory before court action can be commenced. The forthcoming Practice Direction of the Court will require the mediator to be accredited and registered with the AIAC, and should that become the case, then those who have been training under the AIAC will be ready to take on cases immediately.

A New Role for New JPs

It would be short-sighted of the courts not to make use of talented people who are willing to work voluntarily for the good of their community. In Penang, the Council of JPs Penang has been sufficiently prescient to realise this, and have sought to transform the office of JPs in the state of Penang to undertake new initiatives – one of which is pro bono mediation.

JPs are ideal candidates to sit as mediators. They have the requisite standing in society, and having completed an accredited training course, they have the skills to ably discharge the function. It is essential for the reputation of mediation as a form of dispute resolution that mediators have this standing and skill. If parties have a bad experience with a mediator who is not well trained, it is not just that particular mediation that will fail, but the reputation of mediation as a whole suffers as well.

Community mediation helps keep the community in harmony and assists the courts with its caseloads.

The Mediation Training Course offered by the Council of JPs and AIAC lasted for three days, gave participants an overview of what mediation is all about and took the participants through Mediation Act 2012. Participants are taught how to structure a good mediation.

The philosophy of mediation is different from other forms of dispute resolution, and requires different skills and a different approach. The participants received the opportunity to practice their new skills in a role-play exercise; participants were guided and their shortcomings corrected. Finally, they were evaluated and subsequently accredited by the AIAC.

With this training, the participants are now equipped to handle any type of mediation, including community, commercial, family, peer and work place mediation. It is safe to say that many of the disputes that are presently brought to the courts would have been settled in the past by family, religious leaders, community elders or informal community leadership.

The efforts taken by the JPs serve a bigger purpose: community mediation helps keep the community in harmony and assists the courts with its caseloads. Its goal ought to be redefined to include community-building, empowerment and a grassroots alternative to the traditional justice system.

Handling Community Disputes

During the training, the participation of disputing parties was emphasised as it is the key component in community mediation. To have a positive outcome, the mediator should encourage the disputing parties to be involved in the discussion. This places responsibility on the parties to create the outcome, rather than opting for a third party to resolve their issues.

The Penang High Court.

The idea of participation as a means of preventing conflicts and creating responsibility for the decisions that are taken can only be successful with the participation and involvement of all interested parties.

During the training, participants were advised that there should be focus on conciliation, and that the parties should be respectful of each other during the mediation process. The mediator was given some techniques to help the parties see the other person’s perspective, and reach a resolution that was acceptable to all.

In mediating a community dispute, the mediator must also fulfil an educational function in the sense that the proper management of conflicts permits parties to develop skills that assist them in resolving future problems. This in turn improves participants’ observance of the terms of agreements that have been reached, compared with solutions imposed by third parties.

The goal in community mediation includes the initiation and strengthening of community life and neighbourhood relations, and requires actions not contemplated in other types of mediation or litigation. These include developing an ongoing relationship with the community to maintain awareness of social reality, as mediation is based on interest, not position.

The Way Forward

During the dinner ceremony held for the participants on August 12, guest of honour Chow Kon Yeow, chief minister of Penang, acknowledged and commended the initiative taken by the Council of JPs in setting up a Mediation Bureau to provide pro-bono mediation services to the community. In his speech, the chief minister gave assurance that the state government will support the initiative by providing a grant, and will work with the bureau to set up a proper place for its operations, appealing to the media to promote and publicise the free-of-charge mediation services being offered. Chow further indicated that the revival of the JP role in the community is opportune for the appointment of a new breed of JPs in the near future.

The director of AIAC, Datuk Sundra Rajoo, in his keynote speech lauded the initiative taken by the JPs in Penang. He invited all successful participants to apply to the Asian Institute of Alternative Dispute Resolution to be empanelled as mediators, and assured the Council of JPs of continued support from the AIAC in future mediation trainings.

With the support of the state government and the AIAC, the Mediation Bureau at the helm of the Council of JPs Penang can make great strides in providing mediation services to the public in Penang.

In time, it is hoped that the Penang initiative will be replicated in other states. The office of JP will then not wither away, but instead be transformed to serve the public.

The writers are trainers/facilitators at the Council of Justices of the Peace Penang and AIAC’s Mediation Training Course.



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