IT is gratifying that the judicial reforms promised to clear the backlog in civil cases are finally taking shape. A mediation system, certainly the most important of the proposed reforms, will undoubtedly ensure and facilitate a speedier disposal of cases. The present rate is not fast enough to clear the arrears in cases, and the burden is steadily becoming more cumbrous. There are over 900,000 unresolved cases in the lower courts alone. At the High Courts, the number of cases stands at more than 91,000. While mediation or alternative dispute resolution (ADR) has been bandied about for the past decade, it has thus far failed to crystallise. The absence of critical provisions, such as the power of the court to direct parties to go for ADR, makes it close to impossible to do so. Consequently, the proposal to make it court-mandated is a judicious move that will go a long way towards ensuring the success of implementation. Judges need to be able to do more than just encourage parties to give mediation a go.

Experts have pointed out several other stumbling blocks that need to be overcome before mediation can succeed, however. For one thing, the public may not be entirely open to the idea as a viable option due to a lack of awareness. The authorities, therefore, need to earnestly spread the message that instead of slugging it out in the courtrooms, it is better to talk things out. They need to advise those embroiled in disputes that mediation is cheaper, faster and leaves fewer scars. Malaysians must be made aware that they have this avenue to turn to before emotions escalate, positions harden and costs rise. Lawyers, too, need to be encouraged to accept this method of dispute resolution, as some may consider this less costly alternative a threat to their livelihood.

The mediation system must also be managed properly to ensure there is no room for abuse. It should not be perceived or considered a way for the judiciary to push the burden of clearing cases to other parties. Furthermore, as cases that fail the mediation process will have to go back to the court to be heard, the necessary rules and mechanisms must be in place to ensure this will not result in further delays in the legal process. The concern here is that in such instances, instead of speeding up matters, mediation may double the length of time it takes to settle a case as everything would then have to start over again.