Workshop on Alternative Dispute Resolution (ADR) by the Penang Council of Justices of Peace
I was recently invited by the JPs Council of Penang to deliver a presentation in a workshop on ADR. I spoke about the benefits of Community Mediation and shared the experience of other regions. The JPs of Penang launched the first ever initiative for the establishment of a Mediation Bureau officiated by the presence of Tun Abdul Rahman Abbas, the Yang Dipertua Negeri of the Penang State.
It was quite an eye opening experience to me realising the impact that this initiative would have to the community.
I must thank Ir Harbans Singh and the KLRCA for the opportunity to be part of the training team together with Ms Samrith. We had delivered a training course to the JPs and some volunteers of the community with mediation practice and techniques.
Whilst preparing for the presentation, I realised the huge gap that was left in the community with the growing number of nucleur families. A great part of our history and evolution shows that prior to the establishment of a proper legal structure for the resolution of conflicts and disputes, much of these community disputes or issues were attended to or resolved by the community elders. They were the leaders selected amongst the wise men in a particular community and in larger families, the head of the family. The importance of mediation can be traced back to the philosophy of Confucianism in China. In India it is known as the Pancayat System and the Penghulu system in Malaysia. This approach dates back and was developed by the ancient Greek. In essence the concept is similar. Family or relationship based disputes had the advantage of having someone from the similar cultural background, upbringing, sensitivity and a more personal touch for the resolution of dispute.
Mediation skills were applied in its most basic nature by these wise men.
Community mediation as it is practiced these days focuses on neighbourhood conflicts championed by trained volunteer who are the more respected senior member of the community. Mediation is an innate quality that we all have and with some basic steps and processes, it could be a usefull method of resolving disputes. We all are aware that to refer a matter to the court through a private legal firm maybe costly and may not be within everyone’s mean. Dispute, be it small or huge in amount would mean the same to the person going through the agony and the need to find fairness and justice. These volunteers help those who can't afford to go through the court processes and the more costly ADR avenues.
In the past 40 over years, structured Mediation practise has grown rapidly in many common law jurisdictions such as the US, Australia, Canada, UK, New Zealand. The current state of mediation practiced in most common law jurisdictions can be traced back to the establishment of community justice centres in the 1970s and 1980s. In her book, “Global Trends in Mediation”, Professor Nadja Alexander described the world of mediation to be like an Olympic track in a global race to be the first, the best, the biggest and the most.
Mediation may be divided into the following fields:-
Community Mediation - community based conflicts such as neighbour or neighbourhood disputes.
Commercial Mediation – disputes between companies or between individuals and companies over contracts, services etc.
Family Mediation – disputes around the care, custody and access of children where parents are separating.
Peer Mediation – school-based conflicts between children.
Workplace Mediation – conflicts between individual employees.
The objectives of community mediation are to:
- To offer constructive processes for resolving differences and conflicts between individuals, groups, and organizations.
- To provide an alternative to avoidance, destructive confrontation, prolonged litigation or violence.
- To give people in conflict an opportunity to take responsibility for the resolution of their dispute and control of the outcome.
- To preserve individual interests while strengthening relationships and building connections between people and groups.
- To create processes that make communities work for all.
- To develop and bring communities together.
Community Mediation services differs from a commercial mediation. The referrals are usually taken from the Courts, Police, Land and Housing Dept, Environmental Services and a range of other agencies or from people directly involved in disputes themselves. Typically only one party in dispute will agree to try mediation and it is an effort on the part of that party or the mediator to educate the other on the process and the benefits of mediation. Where face-to-face meeting is not appropriate, techniques such as shuttle diplomacy and exploring strategies for negotiation will be used. Many disputes are settled at this point, without proceeding to a mediation meeting. The mediation meeting will be the point where the steps and processes are applied to try to get the parties to communicate and come to an agreement or resolution.
Relationship of Community Mediation with the Justices System
Evolution of community dispute resolution always had a close nexus with the court system. There seems to be the reliance on the courts for case referrals and fundings. This leads to a discussion of the negative effects this relationship may have for community mediation. Appropriateness of the courts to settle interpersonal conflicts may be questionable.
Study suggests that the courts have not actively sought to become the central institution for dispute resolution; rather the task has fallen to them by default as the significance and influence of other institutions has waned over the years. Many of the disputes which are presently brought to the courts would have been settled in the past by the family, the religious leaders, community elders or the informal community leadership. While the current role of these societal institutions in resolving interpersonal disputes is in doubt, many citizens take their cases to the courts (Cook et al. 1980, p. 2).
Time to re-define the goals of community mediation
Community mediation serves as a tool to keep a harmonious community. Its goal ought to be redefined to include community-building, empowerment and grassroots alternative to the justice system. The efforts taken by the JPs serves a bigger purpose. The Justices of the Peace are respected members of the community and have established a relationship with the community. It is an effort of contributing towards the keeping of peace within communities. A formalised mediation which is not reflective of a particular race or religion will be suitable for our multi-racial community. The Justices of Peace could contribute to the development of ADR within communities at the grassroots level and in turn assist the courts with its caseloads.
In my presentation, I had proposed the JPs Mediation Bureau to proceed to create awareness and reach out to the general public to communicate the importance of tolerance and respect within the community. To educate about the advantages of mediation as a form of dispute resolution. Perhaps set up mediation aid / clinic and work hand in hand with the Court and other regulatory bodies for referrals. They could also establish a structured and accessible referral and administration system by making available the steps of procedure and processes for public to access.
With awareness, there will be more referrals at earlier stages of conflicts by the authorities and agencies; decreased dependence on the court system for cases; increased respect for mediation; and reliable funding sources.