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What is Mediation
The Definition
In a Nutshell
(from http://www.bankinginfo.com.my)
Insurance
Mediation
Bureau
The Insurance Mediation Bureau (223555-A) was
incorporated under the Companies Act 1967 by members
of Persatuan Insuran Am Malaysia on 23.8.1991 to provide
an independent and impartial method in resolving
disputes between insurers and policyholders.
The independence of the Mediator is guaranteed by the
council of the Bureau whose membership consists of
people representing public and consumer interests and
representatives of the members of the Bureau.
The Mediator can investigate and decide on a complaint,
dispute or claim between the Insured and the Insurer.
http://www.piam.org.my
Insurance Mediation
Bureau
How to make a complaint?
Insurance Mediation
Bureau
Malaysian Mediation
Centre (MMC)
Malaysian Mediation
Centre The Process
i.
ii.
iii.
iv.
Malaysian Mediation
Centre The Statistics
Source : MMC
Malaysian Mediation
Centre
No
of
Mediators
No. of Mediators (as at 1.11.2004)
Total : 101
KL
Selangor
Negeri Sembilan
Johor
Penang
Perak
5
Kelantan
Melaka
Kedah
14
17
44
14
3
1
1
2
Source : MMC
Malaysian Mediation
Centre The Process
v.
vi.
Marriage Tribunal /
Conciliatory Body (Law
Section
106 (Marriage
make it a requirement
of
Reform
and
reference to conciliatory body before petition
Divorce)
Act
for
divorce. A conciliatory
body means :
Marriage Tribunal /
Conciliatory Body (Law
A Reform
conciliatory
body
to and
which
a
(Marriage
matrimonial difficulty has been referred
Divorce)
Act
shall resolve it within six months; and
shall require the attendance of the parties
and shall give each of them an
opportunity of being heard and may hear
such other persons and make such
inquiries as it may think fit and may, if it
considers it necessary, adjourn its
proceedings from time to time.
Marriage Tribunal /
Conciliatory Body (Law
If aReform
conciliatory(Marriage
body is unableand
to resolve
the
matrimonial
difficulty
to
the
Divorce)
Act
satisfaction of the parties and to
persuade them to resume married life
together, it shall issue a certificate to that
effect and may append it its certificate
such recommendations as it thinks fit
regarding
maintenance,
division
of
matrimonial property and the custody of
minor children.
The Practice
Modeled after the mediation training
guide produced by LEADR
Model of Mediation in
Pre-mediation:
The
The Past-Understanding and
Preliminary Conference
Exploration
Opening
Parties Opening Statement
Exploration of Issues
Private Sessions
Private Sessions
Joint Negotiations Session(s)
Private Sessions
Agreement/Closure
Preliminary conference
At preliminary conference
Mediator
Parties
Advisers
Process of mediation
Preliminary conference
At preliminary conference
Agreement to mediate :
Authority to settle
Confidentiality as far as the law allows
Privileged information
Enforceability of Settlement Agreement
Termination of Mediation Process
Preliminary conference
At preliminary conference
Outline of disputes
Time,date, venue for mediation
Parties Attending
Summary confirmed in writing
Mediators Opening
Statement : OBJECTIVES
Mediators opening
statement:
Mediators opening
statement : CONTENT
Mediator to
Mediator to
Joint Negotiation
Session(s) - purpose
Joint Negotiation
Session(s) - tips
Successful outcomes in
mediation
Isolation of issues
Partial resolution on some of the issues
Agreement on issues which remain in
dispute
Agreement on all issues
Satisfaction of needs of parties
Understanding of the Needs of each other
Relationship maintained
Relationship enhanced
Insurance Mediation
Bureau
Practical
Eg
From : General Insurance Association
of
Malaysia
In practice, eg:
Scenario 1: The Insured vehicle sustained
damages in an accident. It was discovered
that the engine of the vehicle had been
changed to another with the same cubic
capacity. The Insured had, at the material
time, submitted the relevant documents to
the JPJ notifying the change of the engine
and it was subsequently endorsed on the
Insurance Mediation
Bureau Practical Eg
The Insurers repudiated liability on
(cont)
Insurance Mediation
Bureau Practical Eg
The Mediator at the Bureau noted the following
(cont)
condition that applies to the Insured's whole
policy:
"7. This policy will only be operative if (v) You have taken all reasonable precautions to
maintain Your Vehicle in an efficient roadworthy
condition".
To fulfil this condition, it is therefore imperative
that the Insured should change the engine of the
insured vehicle if it is found to be defective or
malfunctioned.
Insurance Mediation
Bureau Practical Eg
The Mediator also pointed out that there
(cont)
was
relevant provision in the Guidelines
on
Claims
Settlement
Practices
concerning the matter:"An insurer should not deny any claim
merely on grounds of technical breaches
of warranty or policy condition which are
not material or connected to the
circumstances of loss, unless fraud is
suspected."
Insurance Mediation
Bureau Practical Eg
In
the matter under reference the engine
(cont)
was changed to another with the same
cubic capacity. Moreover, the JPJ had been
formally notified and the necessary
endorsement had accordingly been made
in the record. There was no question of the
new engine being overpowered that could
affect the judgement of the underwriters to
underwrite the risk neither was there any
evidence of fraud.
Insurance Mediation
Bureau Practical Eg
In(cont)
view of the above, the Mediator
held that the Insured's decision in
changing the engine of the Insured
vehicle to another with the same cubic
capacity was a technical breach which
was not material to the circumstances
of loss. Accordingly, the Insurers were
liable to indemnify the Insured for the
damages to the insured vehicle.
Mediation Rules
Agreement of Parties
Initiation of Mediation
Request for Mediation
Appointment of Mediator
Disqualification of Mediator
Mediation Agreement
Representation
Mediation Rules
Mediation Rules
Stay of Proceedings
Termination of Mediation
Exclusion of Liability (Waiver)
Interpretation and Application of
Rules
Expenses
Stamping of Agreement
Acceptance of Assignment
Impartiality
Confidentiality
Settlement
Withdrawal
Fees
Evaluation
Confidentiality Code
US position : Uniform Mediation Act s
8 : Unless subject to the [insert
statutory references to open meetings
act and open records act], mediation
communications are confidential to the
extent agreed by the parties or
provided by other law or rule of this
State.
Confidentiality Code
EUs position : Whilst confidentiality is generally
regarded as an essential feature of ADR
proceedings, there will be circumstances in
which it is not required, or cannot possibly be
achieved. In each Member State, there are rules
which govern the conduct of professionals
involved in settlement negotiations. In some
jurisdictions and situations, this will be a matter
of public law.
Confidentiality Code
EUs position : Article 10 provides for
a general duty of confidentiality in the
sense that all information relating to
the conciliation proceedings shall be
kept
confidential,
except
where
disclosure is required under the law or
for the purposes of implementation or
enforcement
of
a
settlement
agreement.
Confidentiality Code
EUs position : Article 10 provides for a general
duty of confidentiality in the sense that all
information relating to the conciliation
proceedings shall be kept confidential, except
where disclosure is required under the law or
for the purposes of implementation or
enforcement of a settlement agreement.
Source: EU Green Paper
http://www.arbitrators.org/Institute/Downloads/EU_Green_Pap
er.PDF
Confidentiality Code
Australias position : Position varies
depending on the sort of ADR process and
the applicable legislation. For example,
the Federal Court of Australia Act 1976
(Cth), s 53B provides that evidence of
anything said or any admission made at a
mediation referred under the Act is not
admissible in any court.
Source: http://www.austlii.edu.au/
Confidentiality Code
Australias position : Amendments to the
Family Law Act 1975 in 1996 provide that
evidence of anything said or any admissions
made at a meeting conducted by a court
mediator, a community or private mediator or
a counsellor is not admissible in any court (s
19N). However, confidentiality is relaxed where
there are reasonable grounds for suspecting
that a child has been abused, or is at risked of
being abused. (s 67ZA(1)(c) and (2)).
Source: http://www.austlii.edu.au/
Confidentiality Code
Australias position : MEDIATION ACT 1997 - SECT 9 :
Admissibility of evidence:
(a)
a communication made in a mediation session;
or
(b)
a document, whether delivered or not, prepared
(i)
for the purposes of;
(ii)
in the course of; or
(iii)
pursuant to a decision taken or undertaking
given in; a mediation session;
is not admissible in any proceedings except in accordance
with section 131 of the Evidence Act 1995 of the
Commonwealth.
Source: http://www.austlii.edu.au/
Confidentiality Code
Australias position : Some exceptions under
section 131 of the Evidence Act 1995 are:
(j) the communication was made, or the document
was prepared, in furtherance of the commission of
a fraud or an offence or the commission of an act
that renders a person liable to a civil penalty; or
(k) one of the persons in dispute, or an employee or
agent of such a person, knew or ought reasonably
to have known that the communication was made,
or the document was prepared, in furtherance of a
deliberate abuse of a power.
Source: http://www.austlii.edu.au/
Protection
Australias position : MEDIATION ACT 1997 - SECT 11
Protection from defamation
11. The same privilege with respect to defamation as
exists in relation to judicial proceedings exists in
relation to
(a)
a mediation session; or
(b)
a document or other material
(i)
produced at a mediation session; or
(ii)
given to a registered mediator for the
purpose of arranging or conducting a mediation
session.
Source: http://www.austlii.edu.au/
Protection
Australias position : MEDIATION ACT 1997 SECT 12
Protection of mediators
12. A registered mediator has, in the
performance in good faith of his or her
functions as mediator, the same protection
and immunity as a judge of the Supreme
Court.
Source: http://www.austlii.edu.au/
Conclusion
The concept of mediation is meant
to be simple, ie settlement
negotiation with the assistance of a
neutral third party.
However, like the development of
law, there are still more to be
achieved vide the implementation
of legislation and rules.
THE END
Assisted by:
Sally Kee
LLB (Hons) (London), of Lincolns Inn, Barrister
Advocates & Solicitor
High Court of Malaya