Lawyers as Meddlers in the Mediation Process - A Malaysian Perspective

Abstract

Objective - The scope of a lawyer’s role is common knowledge and is often construed as one who advises on the application of the law, especially in the area of litigation or conveyancing. Nevertheless, it is pertinent to consider the role of a lawyer in mediation and the link between lawyer and mediation. Methodology/Technique – Mediation as a form of dispute resolution is arguably still at its infancy in Malaysia. Judges in Malaysia do encourage people to use mediation to settle disputes, instead of settling disputes through the court. As such, lawyers play a significant role in mediation, especially when the society regards mediation to be one effective mechanism of Alternative Dispute Resolution (ADR), compared to litigation. Findings - As such, the term ‘mediation’ refers to a process that generates structure negotiation, whereby a mediator (a neutral impartial third party that is acceptable to and independent of the parties) serves to facilitate agreement between the parties involved to resolve their disputes in a systematic manner by isolating the dispute issues, developing alternatives, and reaching a viable and acceptable resolution that satisfy the involved parties. Since the mediator plays the role in the mediation process, how does a lawyer play his role in the mediation process? Does he serve as a meddler in the mediation process? Novelty – A mediator claimed, “…involvement of solicitors is significant. They comprehend the dynamics of positive engagement, apart from having the ability and being prepared for a constructive negotiation so as to look for resolutions, rather than reinforcing litigation. They possess the ability to offer advice and provide guidance to their clients as they seize the opportunity to bring matter to an end. This is an exceptional instance of professionalism at its best.” This statement has become, at present time, ‘how does a lawyer apply his present skills in mediation settlement? Type of Paper: Review. Keywords: Role of Lawyers; Mediation Process; ADR; Malaysia. JEL Classification: K20, K22, K29