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Mediation to be voluntary
Section 29C provides
(1) attendance at and participation in a mediation session is voluntary
(2) A party to a mediation session may withdraw from the mediation session at any time
(3) attendance at, participation in or withdrawal from a mediation session conducted under
this Act shall not effect any rights or remedies that a party to a dispute has
Settlement or agreement to be reduced into writing
Section 29D. No settlement or agreement shall be binding on the parties to a mediation
session unless it has been reduced into writing and signed by the parties to the settlement
or agreement
Mediator
Section 29F states
(1) the Minister may appoint any person as a mediator for the purpose of this part
(2) Every person appointed under subsection (1) shall be subject to the general direction
and supervision of the director general of Legal Aid and shall have no right to appear and
plead in any court in Malaysia
There is the need for the Bureau to enhance the knowledge and skills of the mediators
which would definitely require proper and adequate training.
According to Faridah Abrahim, the paralegals appointed have undergone training in
mediation which was conducted by Singapore and New Zealand mediators.
There is also the need for the mediators to be trained in the field of psychology or social
sciences.
Faridah Abrahim also emphasised on the importance to change the mindset of those
related officials such as, the legal officers, the paralegals, the judiciary and the legal
fraternity as a whole.
At present, mediation at the Bureau has been well accepted by the public as can be seen
from the increasing trend shown by the statistics of cases mediated from 2006 to 2008.
KLRCA
KLRCA was established as a result of the agreement which was achieved between AsianAfrican Legal Consultative Organization (AALCO) and the Government of Malaysia in
April 1979
It is independent from the Malaysian government
It offers administrative, support services, and other assistance for conducting arbitration,
conciliation/mediation, or domain name dispute resolution for the parties in dispute who
are engaged in trade, commerce and investment within the region
The inclusive function is to facilitate and assist the arbitral proceedings, including the
enforcement of awards
The governing rules for the arbitration in KLRCA are KLRCA Rules for Arbitration
which has adopted the UNCITRAL (United Nations Commission on International Trade
Law) Arbitration Rules 1976 with certain modifications and amendments
Mediation in KLRCA
KLRCA has its Conciliation/Mediation Rules
It refers to the UNCITRAL Conciliation Rules 1980 and many of the UNCITRAL
Conciliation Rules 1980 have been incorporated into the KLRCA Conciliation/Mediation
Rules
There are 27 rules which explain the procedural aspect of mediation
Once the parties decided to refer their dispute to mediation, they have to fill in an
appropriate form
Set up the date for mediation that suits them best
Mediator appointed needs to be someone who is very well versed in the area of dispute
The mediators are either experts in various professional and business fields, carefully
selected attorneys and retired judges
Malaysia is a signatory to the 1958 New York Convention on the Recognition and
enforcement of Foreign Arbitral Awards which enables KLRCAs arbitral awards to be
enforceable in countries that are also signatories to the Convention
KLRCA is internationally recognized as a neutral, efficient and reliable dispute resolution
service provider
It has a panel of experienced domestic and international arbitrators from diverse fields of
expertise
KLRCA administers and monitors arbitral proceedings, including any challenges against
the arbitrator
It assists in the enforcement of arbitral awards
Costs of arbitration proceedings are comparatively lower than other arbitral institutions
The consumers thus, have an efficient and effective dispute resolution forum available at a
convenient one-stop centre i.e., FMB
Legal Basis
FMB is a Company Limited by Guarantee.
The memo and articles of Association set out;
The jurisdiction
Appointment of mediator and his/her powers
The role and composition of the Board of Director
Levy/fee collection from its members
The mediator sets the level playing field for an amicable resolution of the
dispute
However, if the parties are unable to resolve the dispute, then the mediator makes an
award
The Membership
The Bureau has been set up by 89 members comprising of;
Commercial Banks
Merchant Banks
Development Banks
Islamic Banks
Insurance Companies
Takaful Operators
Credit/charge Card providers
There is no levy or fee charged to the complaint/customer and the services rendered are
absolutely free
The role of mediator changes into a decision maker - it is a hybrid between mediation and
arbitration
Award is binding on the financial institution but not on the complainant
The complainant must indicate whether he or she accepts or rejects the award
If accepted the institution is bound by the award
If rejected, either party may take such action as they deem expedient to resolve the dispute
e.g., file an action in the civil court
Jurisdiction
Has jurisdiction to mediate on all claims not exceeding RM100,000 relating to;
Personal loans
Housing loans
ATM
Cash deposit machine - CDM
Credit/charge card
Hire purchase
Saving and current account
Fixed deposit, general, specific, investment account
Remittances - Remittance is any form of money transfer or payment done
from your working country to home country. Usually the currencies and
the banks are different and hence while remitting you need to look for the
best currency exchange rate and time taken for the transfer as well.
Read more: http://wiki.answers.com/Q/What_is_remittance#ixzz28fkVphie
7
Electronic banking
Internet banking
Islamic banking and all the services provided thereby
May also refer to FMB - The complaints in relation to fraud cases involving payment
instruments, credit cards, charge cards, ATM cards and cheques not exceeding RM
25,000
Exclusion
The FMB will not consider complaints, disputes or claims relating to:
general pricing,
product policies or services of the members,
credit decisions (approval, rejection and rescheduling of loans),
fraud cases (other than for fraud cases involving payment instruments,
credit cards, charge cards, ATM cards and cheque for which the limit is not
more than RM25,000),
cases which are time barred or more than 6 years
and cases that have been or are referred to the court and / or for arbitration.
Mediation Session
Once the documents and statements from both parties are available, the mediator holds the
mediation
The parties are seated facing the mediator so that at no time they may feel marginalized or
that one party is being favoured
Parties are encouraged to interact in a friendly, polite and congenial atmosphere
Use a white board to explain any particular point which may require graphic illustration so
that both parties understand it
Also to write down the actual terms of settlement
Decision/award
Decision made by FMB is binding on the financial services provider
The complaint has two options; either to accept the decision or to reject
If he accepts the award, he might lose the right to proceed with legal action against FMB
members
If he is not happy with the decision he can proceed with the legal action and the decision
shall not be disclosed to any subsequent court proceedings or arbitration
Prepared by
Dr Nora Abdul Hak