Research Proposal

Working Title:

Developing a Mandatory Family Mediation Program for Civil Law in Malaysia: Learning from the experiences of Australia

By: Nor Fadzlina Nawi Supervisors: Dr Simon Barraclough School of Public Health Faculty of Health Sciences La Trobe University Dr Lawrence Moloney Australian Institute of Family Studies Melbourne

Outline This research is concerned with determining the appropriate approach in developing a mandatory family law mediation program for the Malaysian civil system. It will draw upon experiences and lessons from the current Australian model of mandatory mediation in family disputes. The views of key informants in Malaysia about the desirability of adapting Australias model of mandatory family mediation in Malaysia will also shape the study. The researcher will investigate the special criteria or key factors that should go into the implementation of mandatory mediation in custody disputes post separation in the Malaysian civil legal system. The purpose of the study is to design a mandatory family mediation program for the Malaysian civil system based upon a legal, conceptual and practical framework suited to the Malaysian context. Background Malaysias justice system is exceptional in that it reflects the countrys multi-racial and multi-religious culture. Malaysia has a two-tier legal system, including family law. Family law matters relating to Muslims are administered separately from those of nonMuslims. Muslims are dealt with under the jurisdiction of the Syariah courts, while nonMuslims are dealt with under the jurisdiction of the civil courts. Muslims are not permitted to marry non-Muslims. One of the most common family matters dealt with by both jurisdictions is divorce. In Malaysia the average number of divorces reported against marriages from 2000 to 2005 was 14,971 cases of divorce for Muslim couples and 3,149 for non-Muslims couples against 100,521 of Muslims and 54,374 of non-Muslims marriages (Department of Syariah Judiciary Malaysia 2006; National Registration Department 2006). While the reported numbers of non-Muslim marriages dropped from an average of 60,000 in 2000 to 50,000 in 2005, the numbers of non-Muslim divorces between 2000 and 2005

escalated (National Registration Department 2006). In 2000, the reported number of nonMuslim divorces was 1,604 and it rose to 3,238 in 2001 and grew to 3,747 in 2002 (National Registration Department 2006). It remained at an average of 3,400 divorces from 2003-2005 (National Registration Department 2006). In dealing with issues incidental to divorce and separation, the use of the adversarial legal process is the most common practice in Malaysia. However, there is a widespread agreement internationally amongst scholars from both the legal and mental health professions that litigation and the adversarial legal system are not the most appropriate means for dealing with divorce and separation in the majority of cases (See e.g. Brown 1982; Emery et al. 2005; Firestone and Weinstein 2004; Folberg and Taylor 1984; Haynes 1982; Kelly 1996; Saposnek 2004). Aside from the unsuitability of the adversarial arena in dealing with parental conflict, the cost of litigation as well as unresolved and backlogged cases are persistent problems in the management of civil law cases, including family law cases. When the cases involve children and their welfare these problems are more alarming. The former Law Minister, Datuk Zaid Ibrahim reported in 2008 that the numbers of pending cases of various disputes stood at nearly one million cases involving 91,702 cases in the High Courts; 125,944 cases in the Sessions Courts and 777,703 cases in the Magistrate courts (Cited in Ng 2008). Some studies (Australian Law Reform Commission 1997; Kelly 2004; McIntosh et al. 2008), emphasize the use of alternative dispute resolution (ADR) as a way of dealing with the above mentioned problems. According to Goldberg et al. (2007), the term ADR is often used to describe a wide variety of dispute resolution techniques that are short of, or alternative to, full-scale court processes. These include arbitration, early neutral evaluation, ombudsman and mediation. Of all these techniques, mediation is said to be worthy of consideration as the primary resolution model for resolving disputes in family law. Mediation is seen as an alternative response to the limitations of judicial decision making. According to Walls review of mediation research (1993), mediation has in the

past three decades been shown to be increasingly useful for resolving conflicts worldwide and has been practised in various fields, including family law mediation. Folberg and Taylor (1984, p. 7) describe the process as when the parties in mediation in most instances, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement to accommodate their needs. Mediation is claimed by Emery et al. (2005) to not only avoid adversarial settlement procedures but to be a family-friendly intervention program employed in helping post-separating families to deal with divorce and conflict. Mediation has become one of the main techniques of ADR used in the divorce and family issues in particular, especially in the US (Ayrapetova 2005), Canada (Ellis and Stuckless 2006) and Australia (Harrison 2007). Mediation has its benefits and limitations. Mediation is especially appropriate in family and child-related matters because it encourages collaborative problem-solving by the parties and offers a chance to champion the principles of the best interests of children. Mediation provides the greatest opportunity for direct communication and the sharing of information. These factors can be critical to the successful implementation of parenting agreements. It offers an environment well-suited to identifying and addressing the strong emotional issues associated with divorce and parenting conflicts. The informality and flexibility of mediation also enables parents to address matters that might otherwise not be raised in a more adversarial, or narrowly-focused, process. Despite being posited as a less traumatic resolution process post-separation , mediation programs for instance in the US, that depend on parties voluntary participation attract relatively few cases, even in family law disputes (Maccoby et al. 1992; Nelle 1991; Pearson and Thoennes 1988; Vincent 1996). Hence, in the past decades in an attempt to promote the benefits of mediation and the need for a more efficient administration of justice, there has been an increasing trend in the US, Canada and Australia towards mandating mediation before a case can be allowed to be brought to court (Australian

Government 2004; Jacobs 2005; Kelly 1994; Schepard 2004). Some proponents, for instance Vincent (1996), claim that mandating mediation is a means for bringing parties to the negotiation table and hence enabling them to appreciate the benefits of mediation, especially in family law disputes. Mandatory mediation is, however, not free from controversy. Several authors are concerned that compulsion into mediation may affect one side inequitably in cases where there is an imbalance of power between the parties; and that the more informal and the less legalistic a dispute resolution process is, such as in mediation, the more it would fail to safeguard the weaker party from being unduly influenced into accepting an unfair agreement (Bryan 1992; Fiss 1984; Grillo 1991; Nelle 1991). The issue of imbalance of power is more apparent when there is the presence of violence. In dealing with such issue of imbalance of power, several jurisdictions in the US and Australia have legislated to exclude cases in which substantial power imbalances are thought to exist from mediation, especially for cases involving domestic violence. For instance, in Australia Section 60 I (9) and Section 60 J of the Family Law Amendment (Shared Parental Responsibility) Act 2006 excludes cases from mediation where there are reasonable grounds to believe that: there has been abuse of the child by one of the parties to the proceedings; or there would be a risk of abuse to the child if there were a delay in applying for the order; or there has been family violence by one of the parties to the proceedings; or there is a risk of family violence by one of the parties to the proceedings.

Another argument raised by some legal commentators is that mandating mediation as a prerequisite to litigation constitutes a denial of due process because the process interferes with access to trial (Eisele 1991; Fredlund 1992). However, several other commentators highlighted that courts in several jurisdiction have decided that the right to due process is not violated if the outcome of the mandatory program remains non-binding and it does not create unreasonable barrier to trial or undue pressure towards settlement (Broderick 1991; Katz 1993; Sherman 1993). These barriers and undue pressures can be in the forms of additional cost or delay, disclosing the mediators recommendations to the court or to

the public, or pecuniary penalties for refusing to accept a settlement (Broderick 1991; Katz 1993; Sherman 1993). While recognizing the concerns outlined above, it is a premise of this study that the benefits of making mediation mandatory clearly generally prevail over the potential harms for families, even when violence is an issue. Thus, the study is not concerned with whether or not mediation should be made mandatory in family disputes, but rather the best way in approaching its application and implementation, based on past research and experiences of jurisdictions in which it has been practiced. Problem Statement Although voluntary mediation is available in Malaysia, it attracts a low level of participation. In 2008 only two cases of (civil) family law matters were referred to the Malaysian Mediation Centre (MMC).1 Malaysian government through the Attorney Generals Chambers (AGC) of the Prime Ministers Department in an effort to improve the management of its civil judicial system is considering the move of mandating mediation. The basic aim is to reduce the number of backlogged cases in the system by mandating cases initially bound for trial to be first mediated. Justice Su, based on the findings of a 2006 pilot project for court-ordered mediation cases conducted in the High Court of Penang, suggested that mediation should be made mandatory. The study is claimed to have recorded an estimated settlement rate of 75% of the cases referred to the Malaysian Mediation Centre (Justice Su 2006). Some commentators in Malaysia have also come to a similar conclusion: that mediation should be made mandatory for it to be used effectively (Abdul Hak 2008; Safie 2009). Inquiries made to the senior officials from one division of the AGC in August 2009; the Law Reform and Revision Division (LRRD) revealed that in 2008 a committee was set up by the AGC under the LRRD to discuss the implementation of mandatory mediation in reducing the number of backlogged cases in Malaysian civil courts. Discussion and
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Data provided by Malaysian Mediation Centre (MMC) as of 8 October 2008.

recommendations made by the committee on the development of any mediation statute for Malaysia have focused more on general mediation for civil cases and no special consideration has been given for mediation services for family law cases. As of March 2010, further communication with the division showed that no progress had been made on the formal development of the statute. While the introduction of mandatory mediation by the civil legal system in Malaysia is yet to be realized, it is significant to note that, since 2002 there has been a mandatory mediation services for Muslims. Malaysia, as noted earlier in the discussion has a dual legal system: civil and Islamic, including family law matters. The civil family law deals with marriage and incidental matters for non-Muslims based upon the Law Reform (Marriage and Divorce) Act 1976. The statute established a uniform law for family matters involving non-Muslims and specifically excludes its application to persons professing the religion of Islam. The Islamic family law system deals with Muslim family affairs based upon the Islamic Family Law Enactments separately administered under the jurisdiction of each state in Malaysia. The separate jurisdictions also meant that interreligious marriages between Muslims and non-Muslims are not permitted in Malaysia. This division of powers and jurisdictions are clearly provided for under the second list set out in the Ninth Schedule of the Malaysian Federal Constitution. The family law mediation service for Muslim, also known as Sulh (Islamic Mediation), was initially piloted in the state of Selangor and currently established in every state in Malaysia, except for the states of Perlis, Johor and Sarawak. The Sulh process is reported to be successful in dealing with the backlog of cases in the Syariah Courts (Azahari 2004a, b). Hence, it could be argued that it is only fair and equitable that an equivalent form of process be made available to non-Muslims in the civil family law system. The next issue thus, is how to best approach the design, application and implementation of mandatory mediation for the Malaysian civil family law system and avoid the problems associated with mandatory mediation identified by literature and past research. As will be discussed in the literature review chapter, mediation is a tool which has its

own core values, necessary elements, advantages and limitations. Nevertheless, it is also generally agreed by several commentators that, despite its limitations, the advantages of mediation clearly prevail over the potential harms, especially in family law cases (Nelle 1991; Rimelspach 2002; Sander 1984). Considering that Malaysia is planning to statutorily introduce mediation generally as a pre or post-filing procedures before a case can be litigated, it is important that policymakers are not prematurely suggesting making mediation mandatory as a quick solution to resolving conflicts as complex as custody disputes. As Wade (2002) reminds us, claiming that To every complex social problem there is a simple answer. is wrong. Compulsory mediation in family disputes raises several important issues that need consideration, such as rectifying the imbalance of power between the participating parties, screening for violence and substance abuse and the debate of mediators approach, training and accreditation. These problems, along with other weaknesses of mediation, need to be recognized and addressed, so that the strengths of mediation can be further enhanced even if its being made mandatory especially in family law cases in Malaysia. Hence, in line with the objectives of the research, a legal, conceptual and practical framework for the establishment of mandatory family mediation in custody disputes for the Malaysian civil system context will be proposed. The framework will seek to encompass all of the issues related to the development of mandatory mediation program and emphasize the special nature and dynamic of family law in mediation by evaluating the relevant literature and research, and studying how Australia approached mandatory family mediation, and determining whether Australias model of application is appropriate to be adopted in the context of Malaysia. Purpose and Focus This research is conducted in order to advocate the appropriate approach in developing a mandatory family mediation program for the Malaysian civil law system by evaluating

the relevant literature and research, examining the legal, practical and conceptual questions raised in the implementation of mandatory mediation in family disputes and analyzing how Australia deal with these questions. The research will draw on the experiences and lessons from Australia in establishing its current model of mandatory mediation in family disputes and views gained from key informants in Malaysia about the viability of a systematic adaptation of Australias model of mandatory family mediation in Malaysia. Australias model is chosen for the study based on several criteria, including the fact that Australia has the common law as the basis of its legal system. Arguably, the process of legal transplantation of Australias mandatory mediation program into Malaysia is more likely to be compatible with Malaysias civil law system, which is also based on the common law system. Another criterion is based on initial review of literature and past research which show that Australia is one of the leading jurisdictions that has dealt extensively with family law mediation. Australia has also introduced major changes in their family law in 2006, including emphasizing on the use of mediation in dispute resolution involving children. The impacts of these changes have been recently evaluated using an extensive data collection of the experiences of 28,000 people involved in the family law system (Kaspiew 2009). The evaluation is claimed to be more extensive than other existing studies internationally (Kaspiew 2009). Hence, important lessons could be learned from the reform and the evaluation. The theoretical framework selected for the studys methodology is institutional transplantation with a special focus on the theory of the viability of legal transplantation. In addition, a qualitative inquiry identifying and exploring issues relevant in the adaptation will be carried out through interviews with key informants drawn from family law professionals and practitioners in Malaysia. The research eventually aims to propose a design of a mandatory family mediation program for the Malaysian civil system that emphasizes on the special nature of family law cases and minimizes the problems associated with mandatory mediation.

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Significance Malaysia has yet to introduce mandatory mediation in its civil legal system. There is also yet to be any study done on developing mandatory family law mediation program for Malaysian civil law system. Nevertheless, the Malaysian government has been planning to develop a mandatory or court annexed mediation in the near future. Consultations with the officials of the Law Reform and Revision Division (LRRD) revealed that several forms of mediation statute have been proposed to the revision committee of the LRRD. However, further information from the LRRD and one of the expert members of the committee 2 also suggest that the mediation services proposed will be a general model of mediation and no special focus will be given to the nature of family cases in disputes post separation. This research thus, is likely to have implications for policy makers in Malaysia in developing a mandatory family mediation service that suits the Malaysian civil law context based on the most appropriate legal, conceptual and practical framework of family mediation. The study will take into consideration the experiences from Australia, the Malaysian Sulh program and also those in the family law field in Malaysia. Dissemination of the findings of the study to the government will be done through the Economic Planning Unit (EPU); a principal government agency under the Prime Ministers Department responsible for the preparation of development plans for the nation and research coordination in Malaysia. It is intended that papers will also be presented and published from the findings. Methodology and Design The research methodology will be based on the general theoretical framework of institutional transplantation, focusing especially upon legal transplantation. According to Mamadouh et al. (2002), reforms may be inspired by lessons drawn from the experiences of others and institutions are at times borrowed from various other places. The term
2

A senior mediator of Malaysian Mediation Centre

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transplant can be said to describe these borrowings whilst transplantation is seen to describe the process of borrowing (Mamadouh et al., p. 4). There are various rationales behind institutional transplantation. Mamadouh et al. (2002, p. 4) argue that the overall aim is to bring about improvements to the host country by taking into consideration the best practices of the chosen model of institutions in the donor country and borrowing them in order to expedite development of any innovation and to realize it at a lower cost. Transplantation is thus, perceived as an approach to lower the cost of innovation and to accelerate diffusion of innovation in the donor country and is arguably more likely to be successful than a full-fledged innovation (Mamadouh et al. 2002). Various theoretical principles are to be found in the literature on the approaches in transplantation. Westney (1987) for instance, use the term imitation, emulation and innovation, Rose (1991, 1993) and Robertson (1991) lesson drawing, De Jong (1999) institutional transplantation and Watson (1993) discussed it under the term legal transplant. This study will be approached from the conceptual framework of legal transplantation. The term legal transplants was initially described by Watson (1993, p. 21) as the moving of a rule or system of law from one country to another, or from one people to another. Watsons (1978) view of legal transplant is based upon the theory that laws are autonomous from their social connections and transfer freely among globalized legal elites across cultural borders. One of the focus of this study therefore would be in ascertaining how the Australian Family Dispute Resolution program, which has been evaluated as part of the larger evaluation of the 2006 family law reforms (see Kaspiew et al. 2009) might be transplanted into Malaysia for the purpose of reforming its current civil law system dealing with families post-separation. The concerns of several commentators on the political, socio-economic and legal cultural contexts of legal transplantation will be taken into consideration, as well Zweigert and Kotzs (1998) two questions on the effectiveness

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of the reform in the donor country and whether it is possible to apply the solution in the host country. Only those aspects of Australian program and legislation identified in this study that are judged to be acceptable in Malaysia, having regard to local culture and religious sensibilities, will be candidates for successful adaptation in the legal context of Malaysia.3 In order to design a qualitative inquiry that includes the above considerations, the research design thus comprises a combination of doctrinal and non-doctrinal method, including documentary analysis of relevant legal documents and research, and interviews with respondents from the key stakeholder representing the government, the judiciary, practitioners, academics and relevant non-governmental organizations representing the community sector. In the first stage I will carry out a document analysis by reviewing documents focusing especially on the Australian Family Law Amendment (Shared Parental Responsibility) Act 2006 and the report of the Australian Evaluation of the Family Law Reforms 2006 (Kaspiew et al. 2009) relating to mandatory family law mediation and its development in Australia in order to learn from their experiences. The analysis will also include evaluation of the extent mandatory family law mediation, which is also known as Family Dispute Resolution (FDR) has been effectively applied throughout Australia. At the same time, an exploration of the development of mediation, especially in family area in Malaysia, will be presented using working papers, newspaper articles, published conference papers and annual publications from the Judiciary. For the purpose of gaining information on the development of mediation in Australia and Malaysia, electronic databases, library resources, major online resources including the relevant websites of agencies and organizations will be searched, for primary and secondary sources on Australian and Malaysian law, focusing on family law and dispute resolution. A number of principal government documents including position papers, legislation and regulations, reports will be analyzed. Core documents include:
3

Examples of such unacceptable aspects of the program would be the parts dealing with de facto or samesex relationship

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The Australia

Family Law Amendment (Shared Parental Responsibility) Act 2006

The Australian Evaluation of the Family Law Reforms 2006 The Family Law Reform (Marriage and Divorce) Act 1975 Malaysia Workshop documents Position papers Newspaper articles

Based on all the above analysis and review of the Australian model of FDR, a summary of the model will be constructed and explained. The summary will comprise appropriate explanation of the process involved in Australia when mediation is being considered and used in family disputes post separation. In the next stage of the study, qualitative in-depth interviews will be conducted with key informants or stakeholders in the civil legal system, including officials from the nongovernmental organizations in Malaysia. The interview aims to get an overview of the extent of the problem facing separating families in Malaysia and then ascertaining the perceptions and expectations from the key informants on the probability and problems of establishing a mandatory family mediation program in Malaysia based on the Australian model. The focus of the interview will also to understand the extent to which the planning of a future program ensures that families are safe from violence and able to achieve justice in the program. Considering that the Malaysian Syariah Legal System has already been progressively establishing a form of mandatory mediation for Muslims in Malaysia since 2002, interviews will also be conducted with key informants from the Syariah Legal System, including those who established the Sulh (Islamic Mediation) program and selected experienced mediators. The insights of these informants based on their experience of a functioning mediation system are likely to be valuable in the setting up of a civil version of mediation in the family matters.

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Information gained from the interviews are a key element of the study. According to Weiss (1994), there are three important reasons for conducting qualitative interviews: to develop detailed description, to incorporate multiple perspectives, and to link intersubjectivities. Weiss regards interviews, in terms of developing detailed descriptions of a certain situation as the perfect tool in learning a great deal of any event or development that we were not privy to. As for combining multiple perspectives, qualitative interviews grant the researcher an effective way of describing an organization, development or event that no single person could have observed in its totality (p. 9). Lastly, in terms of linking inter-subjectivities, qualitative interviews give a chance for the readers to grasp a situation from the inside, as a participant might (p. 10). All of the three reasons discussed by Weiss are intrinsic to choosing to conduct interviews for this study. According to Merriam (1998), the type of interview chosen is based on the amount of structure desired from the interview. She maintains that interview formats is at the one end of the continuum fall highly structured, questionnaire driven interviews; at the other end are unstructured, open-ended, conversational formats (p. 74). As for this study, I choose a middle path a semi-structured interview, which will enable different accounts to be compared, whilst its flexibility is intended to facilitate a greater understanding of the subject. The interview schedule is developed and administered based on the background of the stakeholders. I will use one set of open-ended questions with all the interviewees from the civil law background and a separate set for those from the Syariah law background. In cases where the participants have experiences and training from both, the civil and Syariah law, both interview schedules will be used with the participants. Allowance is given to interviewees to focus on certain issues that they have particular insights and information of. If necessary, interviewees' insights will be further explored. Interviewees are selected on the basis of their experience, knowledge of the subject and willingness to participate. Thus, a small, non-probability, purposive sample is chosen for the study. Purposive sampling according to Merriam (1998, p. 61), is based on the assumption that the investigator wants to discover, understand and gain insight and therefore must select a sample from which the most must be learned. There are several

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forms of purposeful sampling including typical, snowball, maximum variation, unique, convenience, network sampling, and chain (Merriam 1998). Merriam (1998) has alerted us to the fact that maximum variation sampling involves identifying and searching for those characters who fulfill most of the criteria of interest for the study. I have therefore chosen to select my participants in accordance with maximum variation sampling method using the following criteria. First, it is essential to distinguish and determine the category of stakeholder for the purpose of the study. The different perspectives of different stakeholders are central to the studys analysis, because it assist in assessing a successful transplantation of any model of law in Malaysia. Participants thus need to represent each of the main stakeholder groupings involved that is, the government, the judiciary, practitioners, academic and relevant non-governmental organizations. Finally, they needed to be involved in the practical, day-to-day policy making process. They needed to be a person with a decision-making capacity or have the capacity to propose change. These criteria are chosen so that these respondents would be the best informants to be able to explain some of the complexities and issues that may emerge in the adaptation of the Australian model of family dispute resolution in Malaysia. Hence, in line with these criteria the following people representing these stakeholders are selected for the study: Government perspective: o o o o Officials from the Law Reform and Revision Division (LRRD) of the Attorney Generals Chambers, Prime Ministers Department Officials from the Legal Aid Bureau, Prime Ministers Department Officials from the Ministry of Women, Family and Community Development Founder of the Sulh (Islamic Mediation) program

Judiciary perspective: o o Family Law High Court Judge High Courts Registrars 16

o o

Syariah High Court Judges Former Chief Justice or Judges

Practitioner perspective: o o o o President of Malaysian Mediation Centre Bar Council Family Law Committee Members Civil Law Mediators Sulh (Islamic Mediation) Practitioners from the Syariah Courts

Non-governmental Organization (Community) perspective: o Officials from relevant NGOs in Malaysia including, All Womens Action Society, Association for Fostering Family Ties, Kuala Lumpur and Selangor and Women's Aid Organisation.

Academics o Academics from Malaysian institutions

For the interview, the schedule is developed based on the literature and documents reviewed in the first stage. The scripts are designed to facilitate semi-structured interview. They have a maximum of four key open-ended questions with several prompts, on issues relating to the establishment of mandatory family mediation based especially on the FDR and concerns affecting its development. The summary of the FDR earlier developed consisting of an explanation of the key features of FDR will be attached to the participant information sheet and sent to the participants in a formal participation invitation letter some time before interviews are set. This would allow for potential participants to peruse the FDR summary and information sheet in order to assist them in reaching a decision about participation in the study. Regardless of whether participants had the chance to peruse the summary, I will also be spending some time at the beginning of each interview to give a brief overview of the model with the respondents and answer any queries and questions that they may have in regard to the model. The briefing of the summary will ensure that participants have some basic information of the FDR since the study aims in gathering from them responses that focus on the viability of transplanting the Australias FDR model in Malaysia.

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In order to ensure elicitation of optimum information from the interview, trials will be carried out to check the quality of the interview questions. The trial participants will be chosen from those having a family law background or relevant background of Malaysia or the topic in general. The interview schedule will then be refined and improved accordingly based on the overall findings of the interview simulations. It is intended that interviews will be audio-recorded and transcribed by the researcher but field notes will be taken if any of the participants chose not to be audio-recorded. A content analysis of the interview notes and transcription, involving extracting themes from the information and connecting them with the research questions will be carried out. The whole content analysis process generally includes an analysis of how the interviewees responded to the questions and identify the similarities and differences in their answers. Next, I will categorize all the data received from the interviews into themes and coherent categories. According to Taylor-Powell and Renner (2003), there are two methods in categorizing data; using preset and emergent categories. Preset categories, refer to starting the categorization process with a list of themes or categories in advance, and then proceed in searching for data reflecting the themes. While emergent categories require that the interview notes be read throughout and the themes be discovered while reading them. The categories will only be refined after the whole data have been worked on. Both approaches will be combined in analyzing the interview notes by using a preset categories and later including others as they emerged from the data. The connections between the themes and categories will be used to interpret findings. Taylor-Powell and Renner (2003) also stress that in the process of analysis, the presence of bias can influence the findings, so they further suggest the use of several other approaches in order to increase the credibility of the findings. Their suggestions include using triangulation, documenting reasoning behind any choices and decisions made during the analysis process and getting feedback and review from others at various stages of the analytical process. For the purposes of this thesis, triangulation will include where appropriate cross-referencing the interview data, first with the information I will gather

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from my documentary and comparative analysis, and second with any other published material such as reports and statistics. All the information from the interview and the documentary analysis will be used to reach conclusions about adapting the Australian model of mandatory family mediation for use in Malaysia.

Summary
This proposal provides an overview of the study in developing a mandatory family law mediation program for the Malaysian civil system and elaborated on the methodology and design of the research under the theoretical framework of institutional and legal transplantation. The research will draw upon experiences and lessons from the current Australian model of mandatory mediation in family disputes and the views of key informants in Malaysia about the desirability of adapting Australias model of mandatory family mediation in Malaysia.

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References

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