1. The Mediation Process
The mediation process conducted by the Malaysian Mediation Centre (“MMC”) is to be governed by this mediation procedure/Rules.
2. Agreement of Parties
Whenever by stipulation or in their contract, the parties have provided for mediation of existing or future disputes under the Rules of the Malaysian Mediation Centre, they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement.
3. Initiation of Mediation
3.1 All parties to a dispute may initiate mediation by filing jointly with the MMC a submission (“the Joint Submission”) to mediation pursuant to these Rules, together with a non-refundable processing fee of RM100.00.
3.2 Any party to a dispute may initiate mediation by filing with the MMC a request (“the Request”) to mediate pursuant to these Rules together with a non-refundable processing fee of RM100.00. The initiating party shall inform the MMC of the names and particulars of all other parties interested in the dispute.
3.3 Upon receipt of the Request together with the payment of RM100.00, the MMC will contact all parties involved in the dispute and attempt to obtain a submission to mediation within fourteen days from the date of the receipt of the Request and shall within twenty-one days from the date of receipt of the Request inform all parties whether mediation can proceed.
3.4 In the event the parties proceed with mediation, the processing fee will be utilised as part payment of the administrative fee.
4. Request for Mediation
4.1 The Joint Submission or the Request for mediation shall contain a brief statement of the nature of the dispute and the names, addresses, and telephone numbers of all parties to the dispute and those who will represent them, if any, in the mediation.
4.2 The initiating party shall simultaneously file two copies of the Request with the MMC and one copy with every other party to the dispute.
5. Appointment of Mediator
5.1 Upon the parties agreeing to submit to mediation, the MMC will forward a list of Mediators on the panel and in the event the parties not having agreed upon a Mediator on MMC’s panel within seven days, the MMC shall appoint a person on MMC’s panel to act as the Mediator.
5.2 The MMC in the selection will choose a person who, in its view will be best placed to serve as the Mediator. In the event that any of the parties has reasonable cause to object to the choice, the MMC will appoint another person.
5.3 The Mediator will:-
(a) prepare himself appropriately before the commencement of the mediation;
(b) abide by the terms of the Agreement to Mediate and the Code of Conduct;
(c) assist the parties in the drawing of any written settlement agreement; and
(d) in general, facilitate negotiations between the parties and steer the direction of the discussion with the aim of finding a mutually acceptable solution.
5.4 The Mediator (or any member of his firm or company) should not act for any of the parties at any time in connection with the subject matter of the mediation. The Mediator and the MMC are not agents of, or acting in any capacity for, any of the parties. The Mediator is not an agent of the MMC.
6. Disqualification of Mediator
6.1 No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation, except by written consent of all parties.
6.2 Prior to accepting an appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or prevent a prompt meeting with the parties.
6.3 Upon receipt of such information, the MMC shall either replace the mediator or immediately communicate the information to the parties for their comments.
6.4 In the event that the parties disagree as to whether the Mediator shall serve, the MMC will appoint another Mediator. The MMC is authorised to appoint another Mediator if the Mediator is unable to serve promptly.
7. Agreement to Mediate
Before mediation is carried out, the parties will enter into an agreement for appointment of Mediator (“the Agreement to Mediate”).
If any Mediator shall become unwilling or unable to serve, the MMC will appoint another mediator.
9.1 Individuals should attend the mediation in person. In the case of corporate entities, the parties shall appoint representatives to the mediation who have the necessary authority to settle the dispute. The parties will furnish the MMC and the Mediator with the names of the representatives at the pre-mediation meeting.
9.2 The Mediator will determine the steps to be taken during the mediation proceedings after consultation with the parties. The parties will be deemed, upon signing the Agreement to Mediate, to have accepted and will be bound by the terms of this procedure.
10. Date, Time and Place of Mediation
The MMC shall fix the date and the time of each mediation session. The mediation shall be held at the appropriate office of the MMC or at any other convenient location as may be determined by the MMC.
11. Identification of Matters in Dispute and Exchange of Information
11.1 At least five days prior to the Mediation, each party shall submit to the Mediator the following:-
(a) a concise summary not exceeding three pages (“the Summary”) stating its case; and
(b) if necessary, copies of all documents referred to in the Summary and which are to be referred to during the Mediation.
11.2 Each party may also bring to the Mediator documents which it wishes to disclose only to the Mediator, stating clearly in writing that the contents of these documents are to be kept confidential by the Mediator.
12. Authority of Mediator
12.1 The Mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. The Mediator is authorized to conduct joint and separate meetings with the parties and to suggest options for settlement.
12.2 Whenever necessary, the Mediator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator or the parties as the Mediator shall determine.
12.3 The Mediator is authorized to end the mediation whenever, in the opinion of the Mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties.
13. Settlement Agreement
The settlement reached in the Mediation shall be reduced in writing and signed by the parties and authenticated by the mediator and shall be binding on the parties.
Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator. Where appropriate, the Mediator is authorized to limit the number of representatives from each party.
15.1 All communications made in the Mediation, including information disclosed and views expressed, are made on a strictly "“without prejudice"” basis and shall not be used in any proceedings.
15.2 All records, reports or other documents including anything electronically or any other information produced or received by a mediator while serving in that capacity shall be privileged.
15.3 The Mediator of the MMC (or any employee, officer or representative for or arising in relation to mediation) shall not be compelled to divulge such records or to testify as a witness, consultant, arbitrator or expert in regard to the mediation in any arbitral judicial or other proceedings.
15.4 The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceedings:-
(a) Views expressed or suggestions made by another party with respect to a possible settlement of the dispute;
(b) Admissions made by another party in the course of the mediation proceedings;
(c) Proposal made or view expressed by the Mediator; or
(d) The fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator.
16. No Stenographic Record, Audio-Visual Recording of Formal Record
There shall be no stenographic record, no transcript or formal record. No audio-visual recording will be made of the proceedings.
17. Stay of Proceedings
Unless the parties otherwise agree, the Mediation will not prevent the commencement of any suit or arbitration, nor will it act as a stay of such proceedings.
18. Termination of Mediation
The mediation shall be terminated:-
(a) by the execution of a settlement agreement by the parties;
(b) by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or
(c) by a written declaration of a party or parties to the effect that the mediation proceedings are terminated.
19. Exclusion of Liability (Waiver)
19.1 Neither the MMC nor any mediator is a necessary party in judicial proceedings relating to the mediation.
19.2 Neither the MMC nor any mediator shall be liable to the parties or any other person for any act or omission in connection with any mediation conducted under these Rules unless the act or omission is fraudulent or involves dishonest misconduct.
20. Interpretation and Application of Rules
The Mediator shall interpret and apply these Rules insofar as they relate to the procedure of mediation, the Mediator’s duties and responsibilities. All other Rules shall be interpreted and applied by the MMC.
The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation including required travelling and other expenses of the mediation of the Mediator and representatives of the MMC and the expenses of any witness and the cost of any proofs or expert advice produced at the direct request of the Mediator, shall be borne equally by the parties unless they agree otherwise.
(a) Administrative and rental charges and the Mediator’s fees are as prescribed by the MMC from time to time.
(b) The administrative and rental charges of the MMC and the Mediator’s fees for the first scheduled session shall be paid at least three days prior to the first scheduled session. The balance charges and fees, if any, shall be paid at least three days before the next scheduled session or upon termination or conclusion of the mediation within seven days of receipt of the bill from the MMC.
22. Stamping of Agreements
There is no mandatory requirement for the Agreement to Mediate and Settlement Agreement to be stamped. However, should the disputants wish to have the aforesaid agreements stamped, this will then be dealt with personally by the disputants and will not involve the Mediator.
CODE OF CONDUCT
This Code of Conduct (“this Code”) applies to all persons appointed by the Malaysian Mediation Centre (“MMC”) to act as Mediators in sessions held by the MMC.
1. Acceptance of Assignment
The Mediator will before accepting an assignment, be satisfied that he will be able to conduct the mediation expeditiously and impartially.
2.1 The Mediator will be impartial and fair to the parties, and be seen to be so. Following from this, he will disclose information which may lead to the impression that he may not be impartial or fair, including, that:-
(a) he has acted in any capacity for any of the parties;
(b) he has a financial interest (direct or indirect) in any of the parties or the outcome of the mediation; or
(c) he has any confidential information about the parties or the dispute under mediation derived from sources outside the mediation.
2.2 When in doubt, the Mediator shall refer the matter to the MMC.
3. The Mediation Procedure
The Mediator will act in accordance with the Mediation Rules of the MMC.
4.1 Any document and information supplied for, and disclosed in the course of the mediation will be kept confidential. The Mediator will only disclose the same if required to do so by general law, or with the consent of all the parties, or if such disclosure is necessary to implement or enforce any settlement agreement.
4.2 The Mediator (or any member of his firm or company) will not act for any of the parties subsequently in any manner related to or arising out of the subject matter of the mediation without the written informed consent of all the parties.
The Mediator will ensure that any settlement agreement reached is recorded in writing and signed by the parties. The Mediator is to witness and authenticate the settlement agreement upon the parties signing the agreement.
6.1 A withdrawal by the Mediator will occur:-
(a) when he realises that he has committed a breach of any of the terms of this Code;
(b) if there is a request to do so in writing by any of the parties; or
(c) when he is required by any of the parties to do anything in breach of this code or the MMC’s Mediation Rules.
The Mediator, shall, on the occurrence of (a), (b) or (c) above, immediately inform the MMC of his withdrawal.
6.2 The Mediator also has the discretion to withdraw if:-
(a) any of the parties breaches the Agreement to Mediate or the MMC’s Mediation Rules;
(b) any of the parties acts unconscionably;
(c) there is no reasonable prospect in his opinion of a settlement; or
(d) the parties allege that he is in breach of this Code.
In accepting appointment, the fees would be determined based on the agreement between the Mediator and the parties concerned.
The Mediator will not evaluate the parties’ case unless requested by all the parties to do so, and unless he is satisfied that he is able to make such an evaluation.
Mediation is a flexible dispute resolution method by which a neutral third party attempts to assist the parties reach a voluntary settlement.
Rule 1 – Application of PAM Mediation Rules
Wherever parties have agreed to mediation under the auspices of the Pertubuhan Akitek Malaysia (PAM), they shall be deemed to have accepted and be bound by these Rules subject to such modifications as the parties may agree. Unless the parties agree otherwise, these Rules as in effect on the date of commencement of the mediation shall apply.
Rule 2 – Commencement of the Mediation
Any party to a Mediation agreement that wishes to commence a mediation shall submit a Request for Mediation of the Dispute (the Request) in writing to the President or Deputy President for the time being of PAM together with an administrative fee of RM100.00. The party shall at the same time send a copy of the Request for Mediation of the Dispute to the other party.
The Request shall contain or be accompanied by the names, addresses, telephones, telefax or other communication references of the parties to the dispute; the name and particulars of the person or persons who will represent that party for the mediation; a copy of the Mediation Agreement; and a brief statement of the nature of the dispute, including the amount in issue and any relief or remedy sought.
Rule 3 – Invitation to Mediation
Upon acceptance of the Request, the President or Deputy President for the time being of PAM shall within twenty one (21) days send a written invitation (the Invitation) to each party to submit to mediation accordance with these Rules. The Invitation shall appoint a Mediator thought suitable and shall accompanied by a copy of the Request. A copy of the Invitation shall at the same time be sent to the party submitting the request.
Rule 4 – Appointment of Mediator
Any party who receives an Invitation from the President or Deputy President shall within fourteen (14) days notify PAM and each other party whether the appointed Mediator is acceptable. Where all the parties agree on the Mediator, and the proposed Mediator agrees to act, the mediation shall proceed in accordance with these Rules.
The President or Deputy President for the time being of PAM shall have the right to appoint another Mediator either upon the request of either party or on his own motion in place of the appointed Mediator be unwilling or is unable to proceed with the mediation, or fails to proceed with reasonable speed or is for any reason disqualified from acting as Mediator.
Rule 5 – Circumstances of Appointment
The Mediator shall disclose to PAM and to the parties any circumstances which may compromise the independence, impartially or ability to act of the Mediator prior to accepting the appointment, or forthwith upon any such circumstances arising.
Rule 6 – Conduct of Mediation
The Mediator shall commence the mediation as soon as possible after his appointment and shall conclude the mediation proceedings within ninety (90) days from the date of his appointment. The parties may however agree to extend the time for the conclusion of the mediation.
The parties shall in good faith provide full cooperation and assistance to the Mediator to enable the mediation to proceed expeditiously and be concluded within the stipulated time. In particular, the parties shall comply with the Mediator’s requests to submit the written statements and documents and shall attend the mediation sessions.
The parties may be represented by such person(s) as they consider appropriate, provided that such person(s) shall forthwith be made known to each other party and Mediator.
The Mediator shall fix the date and time of each mediation session. The mediation shall be conducted at the PAM’s premises or at such other venue determined by the Mediator.
The Mediator may invite each party to provide him with a brief written statement describing the general nature of the dispute and his position on the issues in the dispute together with the relevant supporting documents, if any. Each party shall send a copy of his written statement to the other party and to the Mediator at least three (3) days before any mediation meeting.
The Mediator may invite each party to attend a mediation meeting(s), at which the parties shall each be given an opportunity to make a brief oral presentation of their positions. Prior to any mediation meeting, each party should identify to the Mediator and to each other party at least one representative having full authority to agree to settlement of the disputes.
The Mediator shall impartially and independently conduct the mediation in such manner as he thinks fit with a view to expeditiously assisting the parties reach a mutually acceptable settlement, taking into account any wishes the parties may express. The Mediator shall have no authority to impose any settlement on the parties. For this purpose, the Mediator may caucus privately with any of the parties. Any party may request a private caucus with the Mediator at any time. He may also meet with the parties jointly. The Mediator may also express views on the issues in the dispute and make such settlement proposals as he thinks fit. Such settlement proposals need not be in writing.
The Mediator may at any time request either party to submit such additional information as he deems appropriate. If necessary, the Mediator may request for and obtain legal or expert technical advice on the issues in dispute provided the parties agree to pay the costs of the same.
The mediation sessions shall be conducted in private. Other than the parties and their representatives, no other person shall attend any mediation meeting without the agreement of every other party and the Mediator. There shall be no recording or transcript of any mediation meeting or sessions.
The Mediator may terminate the mediation proceedings at any time if in his opinion further efforts at mediation will not achieve a settlement of the dispute.
If the parties reach agreement on a settlement of the dispute, they shall draw up and sign a binding written Settlement Agreement, with the assistance of the Mediator as appropriate. The duly signed Settlement Agreement shall have full contractual force and effect and shall be legally binding upon the parties.
Rule 7 – Confidentiality of Mediation Proceedings
The parties, the Mediator, PAM and any officer or employee of PAM shall keep confidential all matters relating to the mediation, including the existence or terms of any Settlement Agreement except where disclosure is necessary for the propose of implementation and enforcement. All documents, records or other information received by the Mediator, PAM or any officer or employee of PAM shall be confidential.
The parties shall not refer to, or introduce as evidence, in any arbitration or judicial proceedings, any communication relating to a possible settlement of the dispute; any comments made by any party in the course of the mediation; any comment or view expressed by the Mediator, or the fact that any party indicated any willingness, or otherwise, accept any proposal for settlement.
Rule 8 – Termination of Mediation
(i) The mediation shall terminate:
upon a written declaration of any or all of the parties that the mediation is terminated;
upon execution of a Settlement Agreement in writing between the parties;
upon a written declaration of the Mediator that in his opinion a settlement is unlikely to be achieved in the mediation; or
within ninety (90) days of the appointment of the Mediator, or on such date or within such other period as may be agreed between the parties and the Mediator.
Rule 9 – Other Proceedings
The Mediator shall not act in any capacity with regard to the subject matter of the mediation, whether as an arbitrator, witness, consultant or representative of any party, in any judicial proceedings, or otherwise except as all of the parties may otherwise agree.
No party shall call upon the Mediator or any officer or employee of PAM to give evidence in any such proceedings, except as all of the parties may agree.
Rule 10 – Resort to Arbitral or Judicial Proceedings
The parties shall not during the course of the mediation proceedings, commence any judicial or arbitral proceedings in respect of the dispute under the mediation except where such proceedings are necessary to preserve the party’s rights.
Rule 11 – Role of PAM
PAM, in conjunction with the Mediator, may assist in arrangements for the mediation including, as necessary, organising a suitable venue and assisting in the exchange of written communication and documentation.
Rule 12 – Exclusion of Liability
Neither the Mediator nor PAM, or any other officer or employee of PAM, shall be liable for any act or omission arising out of or in relation to the mediation, in the absence of fraud or willful misconduct.
The Mediator shall be an independent contractor and shall not be an agent or employee of PAM. The parties acknowledge that in acting as Mediator in any mediation held pursuant to these Rules, the Mediator is not representing or giving legal advice to, or assessing, upholding or protecting or attempting to assess, uphold or protect any rights of any of the parties.
Rule 13 – Expenses and Costs
All costs and expenses incurred in the mediation proceedings shall be borne equally by the parties (unless they otherwise agree) including the following costs:
the Mediator’s fees of RM500.00 per hour, his travel expenses and any other out of pocket expenses including that of hiring of venue, refreshments, telephone and facsimile costs, postage, typing costs, etc regardless of whether any settlement is reached between the parties.
The costs of any legal, expert or technical advice as requested by the Mediator for the purpose of the mediation.
PAM imposes an administration and coordinating charge on the Mediator taxed at seven and half percent (7 ½%) of the Mediator’s fees only. This charge which is payable by the Mediator to PAM may not be added to the Mediator’s fees.
Each party shall bear its own costs and expenses in the preparation and conduct of the mediation, including the expenses of any advisor, witness or expert procured by any party, unless otherwise agreed between the parties
Rule 14 – Deposit Towards Mediation Expenses
Before the commencement of the mediation, the Mediator may require each party to deposit with PAM such amount covering the expenses of the mediation as he shall reasonably direct. Payment of security for mediation expenses should be made by cheque made payable to Pertubuhan Akitek Malaysia and crossed A/C Payee only. Upon termination of the mediation and by the direction of the Mediator, PAM shall return the unused balance remaining of the deposit to the parties in equal amounts.