ANÁLISIS DE COMPRENSIÓN COMPORTAMIENTO DE LA GRÁFICA DE

This thesis is organised into eight chapters. Chapter 1 has outlined and justified the research topic for this thesis, its objectives and methodologies. The thesis presents the first large-scale investigation of court-annexed and judge-led mediation in Malaysia, particularly to assess its potential to reduce the increasing backlog of civil cases.

Chapter 2 reviews the key concepts related to the study. It focuses on literature related to the development of alternative dispute resolution particularly mediation in the USA, UK and Australia. The success of mediation practiced in these jurisdictions is used as a benchmark to assess and compare how far this practice is progressing in Malaysia.

Surveys - Sabah and Sarawak Advocates Associationsmembers

13 Semi - Structured Interviews

Triangulated Results and Theory Development

Literature Review, extraction of theories and Documentation Review

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Chapter 3 provides an overview of the literature to build the theoretical and conceptual framework of the thesis. First, the theories of mediation and some of its major concerns are examined. The reasons for and against the use of mediation, including the diversity of mediation practices, are explored. Next, the chapter describes and examines the nature of mediation practices in the Malaysian civil courts. Second, the theories of justice and how these relate to court-annexed and judge-led mediation is explored. Third, the reform of existing judicial systems in the direction of accepting mediation is discussed based on change theory and its application to understanding the barriers to change in a court management setting.

Chapter 4 provides the methodologies used to undertake the research and the reasons for their use. As described earlier the thesis adopts an exploratory approach using both qualitative and quantitative methods to probe stakeholders’ attitudes and opinions on the growth and development of court-connected mediation. The surveys were distributed between January to April 2010 and 100 lawyers responded. There were 13 interviews (seven judges and six non-judges) conducted from 5 February to 8 March 2010.

Chapter 5 addresses the first research question to identify factors impacting upon the growth and development of mediation in Malaysia by analysing the findings of the survey to practicing lawyers. First, the findings suggest that the surveyed lawyers reacted positively to the benefits of mediation and believe that mediation is an effective alternative to litigation to ease court backlogs. Second, the chapter finds that lawyers do believe that mediation provides justice if parties are given the opportunity to participate and present their views and their views have been considered (procedural justice). Further, they believe that the parties’ perception of justice is further enhanced, if they were treated with respect and dignity by the mediators (interactional justice). Third, the chapter finds that lawyers are in agreement with the proposition that the disputants’ demand for a quick and early resolution of their case at minimum costs requires a change in court procedures. However, the lawyers do not seem to believe they had a role as advisors to clients in directing disputants towards court-connected mediation.

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Chapter 6 provides the findings from the interviews on the broad three research questions relating to the key reasons for the growth and development of court- connected mediation in Malaysia; and their opinions on its success in other jurisdictions; and the barriers to its uptake in Malaysia. First, five key factors were identified as reasons for the growth and development of court-connected mediation: the realisation of the benefits of mediation; the prevailing court backlogs; the support and encouragement from the senior members of the judiciary; the exposure to, and training of mediation; and, the cultural use of mediation in the traditional Malaysian society. Second, five key factors which led to the success of court-connected mediation in other jurisdictions were uncovered: the high costs of litigation; the increased level of awareness; government policy and intervention; and, the cooperation from the bar. Third, the key factors that have caused barriers to court-connected mediation in Malaysia were identified as arising from the attitudinal and behavioural characteristics of the three groups of stakeholders: judges; lawyers; and, the public including the disputants.

Chapter 7 synthesises the preceding findings from the surveys and interviews into a Discussion chapter which also draws upon research conducted by scholars in court- connected mediation drawing from the literature discussed in Chapters 2 and 3. The chapter considers the uptake of mediation in other jurisdictions, the factors behind its success in implementing court-connected mediation and the ways to overcome some possible hindrances in its implementation.

Chapter 8 concludes and sums up the research drawing together the main findings arising from this study, the key points from each of the main sources of empirical evidence presented in the thesis and suggest ways in which it may inform the best practice of court-connected mediation in Malaysia. Briefly, the main recommendations considered in this chapter include: the need to have the structure for an effective implementation of court-connected mediation including possibly mandating mediation to overcome the resistance; continued education and awareness programmes to be undertaken on the benefits of resolving disputes by way of court-connected mediation; mediation training for mediators and judges to equip them with mediation skills; the

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setting up an independent mediation centre to dispel the disputants’ perceptions of possible bias by lawyers mediators sourced from the MMC; and, to consider the practice of mediation in the Malaysian Syariah Courts where mediation was conducted by a sulh officer, a trained and qualified mediator employed by the court.