THE Movement Control Order (MCO) due to Covid-19 brought about unprecedented losses to businesses and individuals.
Disputes arising from that predominantly are in real estate transactions; financing facilities and foreclosures; suppliers; businesses franchises; manufacturing sector; business partners and shareholders; construction defects, delay in completion, poor services and defective products and many more.
The immediate response would be to search for a lawyer and proceed with litigation.
However, there is no guarantee that one party could claim victory over the other or seek for damage as everyone though being in the same boat fighting the pandemic but facing a battle of their own.
Despite the government introducing many incentive packages to stimulate the businesses and assist them to recover, disputes are unavoidable.
Business survival depends on meeting consumer needs, profits and relationship with suppliers and employees. Thus, dispute resolution need to be fast, efficient and able to assist the parties to identify solutions mutually beneficial to enable them to continue with business and preserve their relationship.
Mediation can be a preferred alternative to litigation, as it is cheaper and speedier, and enables parties to control the outcome. It enables the parties to determine their own solutions and resolve disputes in a non-adversarial manner and help preserve valuable relationships and goodwill.
Central to mediation is the concept of "informed consent." The mediators take an active role in resolving disputes, by assisting the parties to identify their interests, needs and goals, and to develop necessary information to be shared.
They facilitate the discussions in a neutral perspective, focus on what happened, cause of the problem, the impact and ideas for resolving.
The informality and flexibility nature of mediation also enable a less hostile climate between the parties, making them more inclined to establish a negotiation. This enables parties to see clearly the impact of a particular problem especially that caused by the Covid-19 pandemic and discuss the possible win-win solution.
So long as participants understand the nature of the mediation process and effectively consent to participate in the described process, it is appropriate for any type of disputes. In fact, disputing parties can resolve their dispute without having to wait for the courts, saving their time and minimising losses that is mounting due to the MCO and inability to conduct business as usual.
During lockdown and with the MCO, it would be difficult to conduct face to face mediation session. However, with the aid of technology, parties can consider to conduct remote mediation without postponing the negotiation session to a time where parties can meet at a venue.
In organising the remote mediation session, the mediator will need to ensure the parties are guided with the details of the session.
When parties 'arrive' at the remote mediation session, they will enter a virtual 'waiting room' facilitated by the video conferencing platform. Any number of rooms can be created during the session depending on the needs and requests from the disputing parties.
Once an agreement is reached during the remote mediation session, the parties can draft the settlement agreement and share the Agreement in the virtual room, finalised by e-mail or even by using screen share. Parties can choose to sign the settlement agreement in duplicate copies and or make use of digital signatures to execute the agreement online.
Remote mediation has been conducted successfully in Australia, United Kingdom, United States and other countries even before the lockdown for Covid-19 pandemic.
It offers an effective method for quickly resolving disputes, useful not only during lockdown but to be used to save time and costs involved in engaging specialised mediators from other countries.
The Malaysian Mediation Centre established under the auspices of the Malaysian Bar, to offer mediation services can look into the prospect of promoting remote mediation. The Muslim Lawyers Association and Syarie Lawyers Association, can also promote remote mediation especially for the Syariah matters.
The law relating to mediation process is provided in the Mediation Act 2012 (Act 749), the government can consider amending the Act to include provisions to regulate remote mediation processes which is essential not only during the pandemic period but to be a permanent feature of the mediation process.
The writer is a Professor In Land Tenure and Development Planning Law, Civil Law Department, Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times