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53 of 82 DOCUMENTS

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal Articles

2009
Volume 5

[2009] 5 MLJ lxxxiii; [2009] 5 MLJA 83

LENGTH: 6736 words

TITLE: Article: MAJLIS SULH(ISLAMIC MEDIATION) IN THE SELANGOR SYARIAH COURT AND
MALAYSIAN MEDIATION CENTRE OF THE BAR COUNCIL A COMPARATIVE STUDY

AUTHOR: Su'aida bt Safei Lecturer Faculty of Law Universiti Teknologi MARA

TEXT: INTRODUCTION

Sulh in the Syariah Courts in the State of Selangor

Al-sulh is a well-known term in Islamic law which means reconciliation, discontinuance or stoppage of dispute or
dissension and contention. Legally, al-sulh is the termination or avoidance of a dispute or law suit between two parties.
n1 There are some provisions in the Al-Quran, n2 hadith (sayings of Prophet Muhammad) and in the sayings of the
second Caliph of Islam, Umar ibn al-Khattab, which touched upon amicable settlement (sulh). n3 The most interesting
provisions which are related directly to the possible negative effects of dispute resolution by way of court judgments
can be found in one of the hadiths narrated by Ummu Salamah n4 and in the sayings of the second Caliph of Islam. n5

The traditional practice of sulh was adopted in Selangor within its Syariah Court system throughout the State; the
provisions of which would be elaborated later in this paper. However, it should be noted here that Majlis Sulh as
practised in the Selangor Syariah Courts, is not as wide as sulh in Islam; it is actually a court-annexed mediation.

Bar Council's Malaysian Mediation Centre

In 1995, the Bar Council set up an Alternative Dispute Resolution Committee ('ADR Committee') to look into the
possibility of setting up a mediation centre in Malaysia. n6

The Bar Council launched its Malaysian Mediation Centre ('MMC') on 6 November 1999. n7 The MMC
encourages settlement of civil disputes. The MMC works under the auspices of the ADR Committee. n8 The objectives
of the MMC are to promote mediation as a means of alternative dispute resolution and to provide a proper avenue for
successful dispute resolutions. n9

ASPECTS RELEVANT TO MAJLIS SULH AND MMC MEDIATION

The governing statutes/rules

Majlis Sulh in the Syariah Courts in the State of Selangor

The provision relevant to sulh was inserted in one of the State Enactments, namely the Syariah Court Civil
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Procedure Code Enactment of Selangor 1991 ('the 1991 Enactment'). The Selangor state then gazetted the Syariah Court
Civil Procedure (Sulh) Selangor Rules 2001 ('Sulh Rules 2001') as stated in the Government Gazette of the State of
Selangor (Sel PU 44/2001) and provided for by s 254 of the Syariah Civil Procedure Code Enactment of Selangor No 7
of 1991. n10 The Sulh Rules 2001 contain nine rules relating to sulh and explains the basic guidelines to sulh. The 1991
Enactment was later repealed by s 248(1) of the Syariah Court Civil Procedure (State of Selangor) Enactment 2003 ('the
2003 Enactment'). Section 99 of the 2003 Enactment provides that:

The parties to any proceedings may, at any stage of the proceedings, hold sulh to settle their dispute in accordance
with such rules as may be prescribed or, in the absence of such rules, in accordance with Hukum Syarak.

However, the SulhRules 2001 are not amended and are still being practiced in line with the 2003 Enactment.

In implementing the Sulh Rules 2001, a Mediation Work Manual ('Manual Sulh') was drafted to be used by the sulh
officers. n11 The objective of the manual is clearly stated in 'Bab 2' of the manual as:

The purpose of this Manual is to clarify and ensure uniformity of procedures to be followed by all sulhofficers in
conducting Majlis Sulh. n12

On 1 June 2002, the Code of Ethics for sulhofficers was enforced. The Code provides standards that will guide sulh
officers in the performance of their duties and functions. It applies to all sulh officers during their service. If
thesulhofficers breach any of the provisions of the Code, action will be taken against them under the Selangor Public
Officer Rules 1995. n13

Bar Council's MMC

Unlike Majlis Sulh,there is no provision in any legislation that provides reference to mediation. The ADR
Committee adopted a mediation agreement which is a standard agreement that parties sign before the commencement of
a mediation process to signify their acceptance of mediation. The committee also adopted a code of conduct of the rules
governing mediation to be applied by the MMC. Mediators' fees, regulated by a scale of charges, were also made
applicable for the use of mediation at the MMC. n14

The Model Adopted

Majlis Sulh in the Syariah Courts in the State of Selangor

The model of Majlis Sulh at the Selangor Syariah Courts appears to share the features of a facilitative model of
mediation. This is observed from a pamphlet issued by the Selangor Syariah Courts which, among others, defines Sulh
as involving the sulh officer acting as a chairman in helping parties to reach a mutually amicable settlement. The said
pamphlet also equates Sulh to Mediasi or mediation. n15

Bar Council's MMC

The model of mediation adopted by the MMC is the facilitative model, n16 whereby the mediator will facilitate
negotiations between parties and steer the direction of the discussion with the aim of finding a mutually acceptable
solution. n17

The stage of reference

Majlis Sulh in the Syariah Courts in the State of Selangor

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Since Majlis Sulh is part of the procedures at the Selangor Syariah Courts in accordance with s 99 of the 2003
Enactment, it can be held at any stage of the proceedings either in any of the Syariah Subordinate Courts or in the
Syariah High Court in Selangor. However, a case has to be filed at any of the courts first, before such case can undergo
the process in Majlis Sulh.

Bar Council's MMC

In contrast, due to the fact that mediation at the MMC is not part of the court's procedure, a case can be referred to
MMC at any stage ie even before the case is filed in court (pre-trial), which is not possible for reference to Majlis Sulh.
Other stages are similar to that of Majlis Sulh ie at the commencement of legal proceedings or during proceedings. n18

The processes relevant to the conduct of Majlis Sulh and MMC Mediation

This sub-heading will begin by examining the processes relevant to the MMC mediation first, for the purpose of
showing the similarities between the two processes.

Bar Council's MMC

The MMC mediation process involves the following steps: n19

(1) pre-mediation process - where parties sign a mediation agreement indicating
their submission to mediation;
(2) preliminaries - an introduction to mediation;
(3) mediator's opening
n20 - where ground rules are laid down by the mediator for the session
and mediators are provided with a brief statement of facts (no prior
in-depth knowledge of the issues in dispute are required);
(4) joint session - parties are invited to state their respective cases
in each other's presence;
n21
(5) caucuses,
n22
optional but usually exercised to enable the parties to vent
emotions and to speak freely (a private caucus allows the mediator
to pick out common issues and hidden messages); and
(6) settlement agreement
n23 - parties sign a settlement agreement witnessed by the mediator.
The parties are at liberty to pursue a court action, should
the outcome be unsatisfactory. Either parties' solicitors may draw
up the agreement or the mediator may do so if assistance is required.

Majlis Sulh in the Syariah Courts in the State of Selangor

The mediation process as adopted at the Majlis Sulh is substantially the same as that adopted at the MMC
mediation. Manual Sulh explains the whole process in Majlis Sulh. The stage where the sulh officer introduces the
features of the Majlis Sulh to parties', as stated in the Manual Sulh; Bab 3, is identical to the stage of preliminaries in the
MMC mediation. The opening statement by a sulh officer (referred to as Kenyataan Awal (Al Ta'arruf) Pegawai Sulh in
Manual Sulh; Bab 3) wherein the sulh officer lays down, inter alia, the ground rules in the Majlis Sulh, resembles the
'mediator's opening statement' in the MMC. The sequence of stages in Manual Sulh; Bab 4 and Bab 5 are substantively
identical to the MMC mediation ie the mediator's summaries, identification of issues and agenda setting and
clarification and exploration of issues. The stage of having private caucuses are similarly adopted by the sulh officer
conducting Majlis Sulh, as stated in Manual Sulh; Bab 7. Finally, Manual Sulh; Bab 8 is similar, in substance, to the
stage of settlement agreement in the MMC mediation.
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The factors of success and failure of both methods

It is observed that there are similar factors of success in the MMC mediation andMajlis Sulh ie parties negotiate in
good faith, free from any bad intention and they are willing to tolerate or compromise. The reverse of these factors are
factors of failure. n24

In addition, two more factors that have led parties to fail in settling their disputes through Majlis Sulh are the
existence of power imbalance and also the lack of preparation by the parties when they attend Majlis Sulh. Other
additional factors that hinder parties to settle in a court-annexed mediation like Majlis Sulh are lack of parties'
commitment and non-attendance. n25

ASPECTS PERTINENT TO SULH OFFICERS AND MEDIATORS WITH MMC

Their qualifications

Majlis Sulh in the Syariah Courts in the State of Selangor

When sulh was formally initiated in the Selangor Syariah Courts in May 2002, there were 11 officers, appointed as
full-time sulh officers in all the Syariah Subordinate Courts and the Syariah High Court in Selangor. n26 Currently, they
are ten sulhofficers; two in the Syariah High Court and the remaining in the Syariah Subordinate Courts. n27

It is observed from the interviews conducted by the writer that asulhofficer must hold a first degree in Islamic
studies from any local or foreign universities. He or she also holds a Diploma in Administration and Islamic Judiciary
('DAIJ') either from the Universiti Kebangsaan Malaysia ('UKM') or the International Islamic University Malaysia
('IiUM'). The minimum qualification of asulh officer is equivalent to the qualification of a judge in the Syariah
Subordinate Court in Selangor. n28

All sulhofficers are now accredited mediators of the Accord Group, Australia n29 since they completed the 40-hour
training and received their Certificates of Mediation some time between 2006 and 2008. n30 This should be applauded
since sulh officers at the Selangor Syariah Courts are now at par with the MMC mediators insofar as their qualifications
as professional mediators are concerned.

Bar Council's MMC

On the establishment of the MMC, there were only 27 mediators who went through a three-day study of mediation
techniques of the Singapore Mediation Centre and the Law Society. n31 Now, there are approximately 179 mediators
accredited with MMC. n32

There are three conditions before an advocate and solicitor in Malaysia can be accredited as a mediator with the
MMC, namely: n33
(1) he or she must have seven years of practice;
n34
(2) he or she must undergo 40 hours of intensive training with the trainers,
approved by the Bar Council for that purpose; and
(3) he or she must be successful in the final assessment conducted by
the said trainers.

It is observed that the above requirements are stringent in ensuring the quality of mediators accredited with the
MMC. The requirement of having senior lawyers of at least seven years of practice is seen as selecting persons who
have gained sufficient maturity and experience to deal with people. The 40-hour mediation training, followed by a
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successful assessment at the end, further guarantees that mediators with the MMC are fully aware of shifting their role
from combative lawyers to skillful mediators.

However, it should be fairly noted here that the requirement of 'experience' of mediators in the MMC relates to the
seven years experience as legal practitioners and not as mediators. Therefore, in the context of mediation practice, they
may also be considered as 'young' as the sulh officers.

Training

Majlis Sulh in the Syariah Courts in the State of Selangor

It is observed that sulh officers attended more substantive-based seminars n35 rather than skills-based workshops
n36 which could help them enhance their mediation skills. There was only one mediation- related seminar (which
included, inter alia, the mediation process, skills expected from a mediator, issues related to ethics of a mediator and
simulations of mediation sessions) attended by all pioneer sulh officers that was held one week after they were
appointed in April 2002. n37

However, as elaborated in the sub-heading entitled 'Majlis Sulh in the Syariah Courts in the State of Selangor' of
this paper, the recent accreditation of sulhofficers as mediators with the Accord Group, Australia can be seen as
enriching the mediation skills of these sulh officers. It can also be viewed as recognition of these sulh officers as
professional mediators.

Since the nature of cases referred to Majlis Sulh concern either family or family-related matters, all sulh officers are
now also equipped with counselling skills. They were accredited as counsellors with the Malaysian Department of
Public Services in 2007. n38

Bar Council's MMC

The mediators with the MMC were trained by trainers from foreign countries where mediation has already taken
place in the court and also outside the court, as in Australia and Singapore. Among the trainers were those from the
Singapore Mediation Centre, Lawyers Engaged in Alternative Dispute Resolution ('LEADR') Australia, Accord Group
(Australia) and the University of Florida. n39 In training mediators with the MMC, the Bar Council's ADR Committee
invited these foreign trainers because of their successful track record in their countries. n40 It was believed that these
trainers would help to instill better mediation skills in their trainees/Malaysian lawyers, as mediation is not an alien
practice in their countries.

Roles

Majlis Sulh in the Syariah Courts in the State of Selangor

Sulh officers are involved with cases that concern family matters. Majlis Sulh which takes place in a Syariah
Subordinate Court, for example, discusses issues related to ancillary claims in divorce such as the maintenance of a wife
during iddah, n41 maintenance of the children andmutaah. n42

The sulh officers who were interviewed n43 regarded their roles to include the following:
(1) providing legal information on the Selangor Islamic family law and
Hukum Syarak(Islamic law) especially in the Syariah Subordinate
Courts where most parties are not represented by lawyers and are also
ignorant of their legal rights
n44 (Sulh officers also help parties to understand the relevant
Syariah Court procedures);
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n45
(2) as a middle person to two disputing parties, guiding them to reach
a peaceful settlement and persuading them to re-evaluate the reasonableness
of their claims;
n46
(3) not acting as a counsellor in MajlisSulh even though they may
use some counselling skills in the private caucus;
(4) simplifying parties' problem with the aim of finding a solution;
(5) helping the judges to ease their workload by attempting to reduce
the number of cases pending in court;
n47 and
(6) assisting parties to negotiate and to reach an amicable settlement.
n48

Concerning the role ofsulh officers in providing legal information on the Selangor Islamic family law and Hukum
Syarak, it is submitted that thesesulh officers see themselves as court staff with the obligation to educate parties
concerning their legal rights and duties, not only in accordance with the Selangor Islamic family law but also in line
with Hukum Syarak. It is observed from the interviews withsulh officers that:
(1) in providing legal information about the rights and duties to both
parties in MajlisSulh,sulh officers regard themselves as fulfilling
their obligations not only as Syariah court staff but also as Muslims;
this is due to the fact that Islamic family laws in Malaysia, even
though enacted by different state legislative assemblies, conform
to the basic rules in Islamic law itself (the legal rights and duties
in Islamic family law in Selangor particularly, are intertwined with
those in Islamic law generally and this fact has promptedsulh
officers to provide parties with the information on their legal rights
and duties);
(2) most parties in Syariah Subordinate Courts for example, are not represented
by lawyers, thus they are ignorant of laws relevant to their disputes
(by providing both parties with the relevant information on their
legal rights and duties, it is believed that it will help to empower
them in negotiating their own terms of settlement, free from any power
imbalance); and
(3) in situations wheresulh officers give any suggestions to parties
as to way(s) of possible settlement, thesesulh officers will remind
parties that they are not bound to follow such suggestions (the suggestion
does not curtail the principle of empowerment of parties to negotiate
their own settlement agreement; it is only meant to guide parties
in their negotiation).

Bar Council's MMC

A mediator must be a good listener who appreciates and understands the other side's story. The mediator must help
the parties to come out with solutions and explore these solutions. Sometimes, the mediator gives suggestions/options to
settle when the parties are stuck. The mediator must also help them see the interests of both parties. n49

The mediator is neither a judge, who decides for the parties, nor a legal adviser, who gives legal advice. In fact, the
mediator will rely on the lawyers representing their parties to give them legal advice, which they normally do outside
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the mediation room. The mediator also relies on the respective lawyers to explain to their clients the advantages and
disadvantages of an open court trial. n50

The mediator is actually a facilitator of a communication process n51 between the parties whereby he or she has to
create an environment in which the parties are able to discuss their differences in a positive and conducive
environment, free from any imbalances of negotiating power. n52

It is observed that the roles of MMC mediators andsulh officers seem to be consistent to each other. Both MMC
mediators andsulh officers regard mediation as an 'assisted negotiation'. They also help parties to generate their options
for settlement and refrain from acting as counsellors. As forsulh officers, they acknowledge that the knowledge of some
counselling skills, like how to deal with a conflict effectively, is helpful in their pursuit to guide parties to negotiate
their own terms of settlement.

In contrast to MMC mediators, sincesulh officers can be equated to court-annexed mediators, they also see their
role as helping to reduce the workload of judges as well.

As to the role of providing legal information, the practice of MMC mediators differs from that ofsulh officers. This
is seen to be a major difference between mediation in the MMC and the MajlisSulh in Selangor Syariah Courts.

Code of ethics and mediation rules

Majlis Sulh in the Syariah Courts in the State of Selangor

There is only one code of ethics, known as Kod Etika Pegawai Sulh, which governs the ethics ofsulh officers. There
is no mediation rule similar to that of the MMC. However, these sulh officers have theSulh Rules 2001 to guide them
generally in conductingMajlis Sulh. As for the specific guidelines in the stages to be specifically adopted in Majlis Sulh,
thesesulh officers have their Manual Sulh.

Bar Council's MMC

The MMC mediators are subjected to the MMC's Code of Conduct, which contains eight terms. In addition to the
Code of Conduct, MMC mediators must also abide by the MMC Mediation Rules which contain 21 rules. The
mediation rules explain matters pertaining to the mediation process as a whole, from its initiation n53 until its
termination. n54

The following paragraphs will specifically show many similarities, with only one difference, between the
provisions relating to MMC mediators and sulh officers.

(1) Similarities.
(a) Requirement that mediator must be impartial and fair to parties, thus
avoiding any kind of interest including financial and personal interests.
(i) The relevant provisions for MMC mediators are term 2(a) and term 2(b)
of the MMC's Code of Conduct and also rr 6.1 and 6.2 of the MMC's
Mediation Rules.
(ii) Similar provisions, in substance, can be found in items 3(a), (c),
(h), 5, 7(iv), (viii) and 8(i), (ii), (iv) of the Code of Ethics for
sulh officers and Manual Sulh; Bab 6(f).
(b) The requirement that the mediator refrains from acting dishonestly.
(i) The relevant provision for MMC mediators is r 19.2 of the MMC's Mediation
Rules, whereby a mediator with MMC is only excluded from any liability
to parties or any other person for any act or omission in connection
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with any mediation conducted under the Mediation Rules insofar as

the act or omission is neither fraudulent nor a dishonest misconduct.
Therefore, if the said mediator goes beyond these boundaries, then
the exclusion of liability will be waived.
(ii) A similar provision, in substance, can be found in item 3(b) of the
Code of Ethics for sulh officers, whereby sulh officers are
prohibited from acting dishonestly or acting in the manner that would
tarnish the name of the Syariah Court.
(c) The requirement that the mediator attempts to conduct mediation expeditiously.
(i) The relevant provision for MMC mediators is term 1.1 of the MMC's
Code of Conduct.
(ii) A similar provision, in substance, can be found in item 4 of the Code
of Ethics for sulh officers.
(d) The requirement that the mediator ensures that the settlement agreement
is reduced into writing and then signed by parties.
(i) The relevant provision for MMC mediators is term 5 of the MMC's Code
of Conduct.
(ii) A similar provision, in substance, can be found in r 6 of the Sulh
Rules 2001.
(e) The requirement that the mediator maintains confidentiality.
(i) The relevant provisions for MMC mediators are term 4 of the MMC's
Code of Conduct and rr 15 and 16 of the MMC's Mediation Rules. Rules
15 and 16 show more detailed provisions with specific examples of
matters covered by the confidentiality term, if compared to the relevant
provisions in the Code of Ethics for sulh officers and Manual
Sulh.
(ii) Similar provisions, in substance, can be found in item 8(iii) of the
Code of Ethics for sulh officers and Manual Sulh; Bab 3(g)
and Bab 10.
(f) The requirement that the mediator assists parties to prepare their
draft settlement agreement.
(i) The relevant provision for MMC mediators is r 5.3(c) of the MMC's
Mediation Rules.
(ii) Similar provisions, in substance, can be found in r 6 of the Sulh
Rules 2001 and Manual Sulh; Bab 8(b).
(g) The prohibition of mediators from being called as witnesses in connection
with the mediations that they had conducted earlier.
(i) The relevant provision for MMC mediators is r 15.3 of the MMC's Mediation
Rules, whereby the prohibition is not only limited to testifying as
a witness but also extends to testifying as a consultant, arbitrator
or expert in regard to the mediation in any arbitral, judicial or
other proceedings.
(ii) Similar provisions, in substance, can be found in item 8(vii) of the
Code of Ethics for sulh officers and Manual Sulh; Bab 3 (i).
Item 8(vii) of the Code of Ethics for sulh officers prohibits
sulh officers from acting as 'witnesses' or 'advisers' to parties,
while Manual Sulh; Bab 3(i) generally states that, at the commencement
of Majlis Sulh, sulh officers must inform parties that they
cannot be called in any kind of court proceedings which relate to
the cases that they handled in Majlis Sulh.
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(h) Although a mediator does not impose a settlement on parties, he is

allowed to suggest options for settlement to parties.
(i) The relevant provision for MMC mediators is r 12.1 of the MMC's Mediation
Rules.
(ii) A similar provision, in substance, can be found in Manual Sulh;
Bab 4.

(2) Difference.
(a) The provisions as to the stay of proceedings.
(i) The relevant provision for MMC's mediators is r 17 of the MMC's Mediation
Rules, whereby reference to mediation does not act as a stay of any
other proceedings, neither the court proceedings nor the arbitral
proceedings. Parties in mediation are free to commence any of the
above-mentioned proceedings at any stage of the mediation process.
(ii) A different provision can be found in r 3(a) of the Sulh Rules
2001, whereby reference to Majlis Sulh will act as a stay of court
proceedings and the registrar shall not fix the date for the trial
of the case referred to Majlis Sulh within the period of three
months from the date of the registration of such case in court.
n55

Number of cases referred

Majlis Sulh in the Syariah Courts in the State of Selangor

From May 2002 to December 2007, there were a total of 10,121 cases filed in all Selangor Syariah Courts. Majlis
Sulh had managed to settle 6,275 cases representing 62%, while 3,674 cases representing 36% went for court trials. n56

Bar Council's MMC

As at 18 August 2008, there were 155 cases referred to the MMC from the year 2000 until August 2008. Forty-four
cases were successful representing 28.38%, while 18 cases were unsuccessful representing 11.61%. As at 18 August
2008, there were five cases which were still pending and one case was unsuccessful. Forty cases were categorised as
'closed' which included two cases in which the parties succeeded in settling prior to mediation. n57

CONCLUDING REMARKS

As elaborated above, there seems to be more similarities than differences between the practices of MMC mediation
andMajlis Sulh. It should be fairly acknowledged that these two different bodies share a similar aim of providing parties
in dispute with a private and confidential forum to discuss their dispute.

Majlis Sulhcan be equated as a court-annexed mediation and sulh officers in the Selangor Syariah Courts are court
mediators. Majlis Sulh is in a better position than MMC mediation since it has been placed as part of the court
processes. It is opined that for mediation to succeed, it has to be mandated like that of Majlis Sulh. A mandated
mediation does not curtail the freedom of parties to choose either to settle or not to settle at the end of the session. If the
parties can settle, the settlement should be r egarded as a better settlement compared to a judgment of the court because
it is the result of their own negotiation, with the assistance of the mediator.

Return to Text
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FOOTNOTES:

n1 Syed Khalid Rashid The Importance of Teaching and Implementing ADR in Malaysia[2000] 1 ILR, i, at p iv.

n2 See (Surah al Hujurat:9-10); (Surah an Nisa':128, 114). They are referred to in YAA Dato' Sheikh Ghazali bin Abdul Rahman
Pelaksanaan Sulh di bawah Pentadbiran Mahkamah Syariah, in Bengkel Penyelarasan Pelaksanaan Sulh di Mahkamah Syariah, Kangar
Travelodge, Perlis, 21-23 August 1996 at pp 1-3; YAA Dato' Sheikh Ghazali bin Abdul Rahman, Sulh - Amalannya Dalam Perundangan
Islam in Seminar Kaedah Alternatif Penyelesaian Pertikaian Menurut Islam, Dewan Besar, Institut Kefahaman Islam Malaysia (IKIM), 5-6
November 2001 at pp 3-4; YAA Dato' Sheikh Ghazali bin Abdul Rahman, Sulh (Mediasi) Dalam Pentadbiran Mahkamah Syariah: Cabaran
dan Masa Depan, in Seminar Kebangsaan Penyelesaian Pertikaian Alternatif, 4-5 February 2002 at pp 2-3; Siti Noraini bt Haji Ali Majlis
Sulh di Mahkamah Syariah Selangor, in Seminar Undang-undang Keluarga Islam Selangor, Kelab Shah Alam, Selangor, 26 September 2002
at pp 1-2; YA Atras bin Mohamad Zin, Amalan dan Permasalahan Sulh di Mahkamah Syariah Selangor, in Seminar Isu-isu Mahkamah
Syariah VII Penyelesaian Konflik Keluarga di Mahkamah Syariah: Peranan Sulh dan Keberkesananannya, Moot Court, Ahmad Ibrahim
Kulliyyah of Laws, International Islamic University Malaysia, 29 January 2005 at p 4.

n3 See Syed Khalid Rashid The Importance of Teaching and Implementing ADR in Malaysia, [2000] 1 ILR, i, at pp iv-v.

n4 Narrated by Ummu Salamah: the Prophet SAW said: 'I am a human being and you come to report about your dispute. There may be
among you someone who is more articulate in delivering his argument, and I judge based on the facts that I heard. So if I judge against your
rights and in contradiction to the truth, do not take it as I may have given you a piece of the hell fire'. This hadith is translated from its
Malay version as cited in YAA Dato' Sheikh Ghazali bin Abdul Rahman, Sulh - Amalannya Dalam Perundangan Islam in Seminar Kaedah
Alternatif Penyelesaian Pertikaian Menurut Islam, Dewan Besar, Institut Kefahaman Islam Malaysia (IKIM), 5-6 November 2001 at pp
6-7. 5 The second Caliph, Umar ibn al-Khattab, said: 'Bring those in dispute to peaceful settlement, as most court judgments end up with
revenge and vengeance'. The above sayings are translated from their Malay version as cited in YAA Dato' Sheikh Ghazali bin Abdul
Rahman, Sulh - Amalannya Dalam Perundangan Islam in Seminar Kaedah Alternatif Penyelesaian

n5 Pertikaian Menurut Islam, Dewan Besar, Institut Kefahaman Islam Malaysia (IKIM), 5-6 November 2001 at p 6; YAA Dato' Sheikh
Ghazali bin Abdul Rahman Sulh (Mediasi) Dalam Pentadbiran Mahkamah Syariah: Cabaran dan Masa Depan, Seminar Kebangsaan
Penyelesaian Pertikaian Alternatif, 4-5 February 2002 at pp 3-4; Siti Noraini bt Haji Ali Majlis Sulh di Mahkamah Syariah Selangor, in
Seminar Undang-undang Keluarga Islam Selangor, Kelab Shah Alam, Selangor, 26 September 2002 at p 3.

n6 Khutubul Zaman bin Bukhari Arbitration and Mediation in ASEAN: the Law & Practice, in the 8th General Assembly 2003 at p 5
available at http://www.aseanlawassociation.org/ speechspubspub-malaysia.html.

n7 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001), Insaf, 103 at p 107 and also Syed
Khalid Rashid Factors Behind the Emergence of ADR in the World and ADR in Malaysia[2002] 1 LM at p 70.
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n8 Syed Khalid Rashid Factors Behind the Emergence of ADR in the World and ADR in Malaysia [2002] 1 LM at p 70.

n9 Quoting the first page of the MMC 'Mediation Kit'. The 'Mediation Kit' contains an explanation to the Malaysian Mediation Centre,
which includes the scale of fees of a mediator, terms and conditions for rental of the MMC's facilities, Mediation Rules, Code of Conduct,
etc. It was purchased at the Bar Council on 10 September 2008.

n10 Nora Abdul Hak Qualities of a Mediator in Family Disputes: The Shariah Perspective, in the 4th Asia Pacific Mediation Forum
Conference, Harun M Hashim Law Centre, Ahmad Ibrahim Kulliyyah of Laws, IIUM, 16-18 August 2008 at p 9.

n11 See ibid.

n12 See the first page of Manual Sulh, Bab 2.

n13 Above, n 11.

n14 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001), Insaf, 103 at p 107.

n15 The pamphlet entitled 'Sulh (Mediasi)' can be obtained at the Syariah High Court, Shah Alam, at Level 6 of Bangunan Mahkamah
Sultan Salahuddin Abdul Aziz Shah, Shah Alam, Selangor. The pamphlet was obtained on 1 February 2008. The fact that the model of
mediation adopted is mainly facilitative in nature, is further supported by the interviews conducted. All sulh officers described their
substantial role of facilitating parties to discuss and negotiate their own settlement agreement. Sulh officers interviewed whom, among
others, described such roles in Majlis Sulh were: Tuan Mohamad Ridzuan bin Zainudin, who was first interviewed on Friday, 6 August
2004, when he was a sulh officer at the Syariah High Court, Shah Alam, Selangor. A follow-up interview was conducted on 25 January
2008. Tuan Khairul Azwadi, a sulh officer at the Syariah High Court, Shah Alam, Selangor, on 1 February 2008. Puan Siti Noraini, asulh
officer at the Syariah Subordinate Court, Gombak Timur, Selangor who was first interviewed on Friday, 15 October 2004. A follow-up
interview was conducted on 11 September 2008.

n16 As stated at the front page of the MMC Mediation Kit.

n17 Rule 5.3(d) of the MMC Mediation Rules.

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n18 See the front page of the MMC 'Mediation Kit'.

n19 As stated at the front page of the MMC 'Mediation Kit'.

n20 This was referred to as the Mediator's Opening Statement by Puan Yasmin bt Shariff. See Yasmin bt Shariff Prospek Mediasi
Keluarga, in Seminar Isu-isu Mahkamah Shariah VII Penyelesaian Konflik Keluarga di Mahkamah Shariah: Peranan Sulh dan
Keberkesanannya, Moot Court, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, 29 January 2005 at p 3.

n21 In the joint session, the mediator's opening is then followed by the parties' statements, mediator's summaries, identification of issues
and agenda setting, and finally clarification and exploration of issues. All these stages are focused on past problems of parties; seeibid.

n22 This is the starting point to focus on future solutions. Caucus is also known as a private session; see ibid.

n23 It is viewed that this stage can be accurately referred to as 'mediation outcome', which may either be an agreement concluded, or an
adjournment of agreement or even a termination without any agreement. A stage after the private caucus but prior to mediation outcome is
the stage where the mediator will facilitate negotiation of parties when the joint session after the private caucus is resumed; see ibid.

n24 Sources obtained from: (1) Pamphlet entitledSulh (Mediasi); obtained on 1 February 2008 at Syariah High Court, Shah Alam, at
Level 6 of Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah, Shah Alam, Selangor; and (2) Ms Gunavathi Subramaniam, an
MMC mediator and also a member to the ADR Committee of the Bar Council. She was first interviewed on Monday 27 September 2004. A
follow-up interview was conducted on 10 September 2008.

n25 Source obtained from pamphlet entitled Sulh (Mediasi); obtained on 1 February 2008 at the Syariah High Court, Shah Alam, at Level
6 of Bangunan Mahkamah Sultan Salahuddin Abdul Aziz Shah, Shah Alam, Selangor.

n26 Information obtained from an interview with Tuan Mohamad Ridzuan bin Zainudin, one of the first batches of sulh officers appointed
in May 2002. He was first interviewed on Friday, 6 August 2004, when he was asulhofficer at the Syariah High Court, Shah Alam, Selangor.
A follow-up interview was conducted on 25 January 2008. He is now a research officer at the same court.

n27 Information obtained from an interview with Tuan Mohd Nurulazhar, who is a sulh officer at the Syariah High Court, Shah Alam,
Selangor. The interview was made on 29 August 2008.
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n28 Source obtained from interviews with: Tuan Mohamad Ridzuan bin Zainudin, who was first interviewed on Friday, 6 August 2004,
when he was asulh officer at the Syariah High Court, Shah Alam, Selangor. A follow-up interview was conducted on 25 January 2008;
Tuan Khairul Azwadi, a sulh officer at the Syariah High Court, Shah Alam, Selangor, on 1 February 2008; and Tuan Mohd Nurulazhar, a
sulhofficer at the Syariah High Court, Shah Alam, Selangor on 29 August 2008. See also Pelaksanaan Sulh di Mahkamah Syariah Sejarah
and Perancangan, (Anon), Jurnal Hukum, Syawal 1424H/Disember 2003, 65 at p 82.

n29 The Accord Group is an international dispute resolution firm specialising in mediation, industry dispute resolution systems and
training. It is based in Sydney, Australia with international associates. Source obtained from http://www.accordgroup.com.au/.

n30 Information obtained from: Tuan Mohd Nurulazhar, asulh officer at the Syariah High Court, Shah Alam, Selangor on 29 August
2008; and Puan Siti Noraini, a sulhofficer at the Syariah Subordinate Court, Gombak Timur, Selangor who was first interviewed on Friday,
15 October 2004. A follow-up interview was conducted on 11 September 2008.

n31 Khutubul Zaman bin Bukhari Arbitration and Mediation in ASEAN: the Law & Practice, in 8 General Assembly 2003, at p 5
available at http://www.aseanlawassociation.org/ speechspubspub-malaysia.html.

n32 Source obtained from Ms Marianna Tan, Assistant Director of the Bar Council's MMC, through a tele-conversation on 11 September
2008.

n33 See Yong Yung Choy Alternative Dispute Resolution (Mediation) in Malaysia (December 2001), Insaf, 103 at p 107.

n34 At the time of writing this paper, the ADR Committee of the Bar Council was in the midst of changing this requirement. The change
would eliminate the seven-year requirement of being in active practice as an advocate and solicitor of High Court, Malaya. Additionally, the
MMC's accreditation of mediators will also be opened to other professionals like academicians and architects. The other two requirements
will remain unchanged. Source obtained from a tele-conversation on 10 September 2008 with Ms Gunavathi Subramaniam, a mediator with
MMC, who is also a member to the ADR Committee of the Bar Council.

n35 I define this term to mean seminars with speakers presenting seminar papers followed by question and answer sessions. In this type of
seminars, the participants are not actively involved and the speakers dominate the sessions. The list of seminars that these sulh officers
attended between 15 April 2002 to 8 December 2004 as provided by Tuan Mohamad Ridzuan bin Zainudin, who was first interviewed on 6
Friday August 2004 showed that seminars attended by sulh officers included substantive and procedural matters in various aspects of
Islamic family law, matters relating to Islamic law of evidence, Syariah Court administrative matters, and courses connected to skills in
counselling, for example managing conflict resolutions.
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n36 I define this term to mean workshops where there is less participation on the speakers' side. The speakers act more as facilitators who
guide the participants in being actively involved in the workshops conducted. The activities in these workshops are geared on the aim of
improving specific skills of the participants, for example mediation skills, rather than acting as a forum of providing information in the form
of seminar papers. I personally experienced some mediation skills-based sessions, in my capacity as a student, in semester two of the ADR
course during the period between the end of 2003 to February 2004. This ADR course is one of the courses offered in the Masters
programme (LLM) at the Law Faculty, University of Malaya. These mediation skills-based sessions, which I was involved in, emulated the
MMC's model in training its mediators. Even the trainers who assessed the students' mediation skills at the end of the course were actually
trainers or coaches who had experienced training MMC's mediators. The sessions comprised many simulation exercises where students took
turns to play three different roles in the role-plays; the mediator, party A and party B. The role-plays were based on simulation exercises
conducted by LEADR, Australia. At the end of the course, after experiencing many simulation-exercises, students' mediation skills were
assessed by the trainers.

n37 It was a three-day seminar; Kursus Mediasi/Sulh Mahkamah Syariah Selangor, Hotel Quality, Shah Alam, Selangor, 22-24 April
2002. One of the speakers that specifically talked about areas related to mediation was Salled Buang, a former lecturer in Ahmad Ibrahim
Kulliyyah of Laws, International Islamic University Malaysia. He was also one of the committee members that were involved in the making
of Manual Sulh to serve as guidance tosulh officers in Selangor. The Manual Sulh was then issued on 17 July 2002 by the chairman of the
said committee, YAA Dato' Sheikh Ghazali bin Abdul Rahman.

n38 Information obtained from Puan Siti Noraini, asulh officer at the Syariah Subordinate Court, Gombak Timur, Selangor who was first
interviewed on Friday, 15 October 2004. The interview was later updated through a tele-conversation on 11 September 2008.

n39 Yong Yung ChoyAlternative Dispute Resolution (Mediation) in Malaysia (December 2001), Insaf, 103, at pp 108-109.

n40 See ibid, at p 106.

n41 Iddah or eddah refers to the waiting period imposed on a wife who is divorced by the husband, or whose husband has passed away.
The waiting period normally lasts for three months and ten days reflecting three menstrual cycles in the case of iddah after a divorce. Where
the husband has passed away the iddah lasts for four months and ten days. If the woman does not menstruate, her iddah is only three months;
see Mimi Kamariah Majid, Family Law in Malaysia, Kuala Lumpur: MLJ, 1999, at p 131.

n42 According to the often-quoted Kifayah al-Akhyar, muta'ah is the name of the property that is paid or given by a husband to his wife
because of the separation with the wife. It is payable in all cases of divorce, except where the divorce is at the instance of the wife because
of the defect on the part of the husband or it is afasakh divorce because of the defect or fault of either party. The Quran did not specify to the
effect that muta'ahshould be paid; the rich according to his means and the poor according to his means; see, ibidat p 347.

n43 Interviews with: Tuan Mohamad Ridzuan bin Zainudin, who was first interviewed on Friday, 6 August 2004, when he was
asulhofficer at the Syariah High Court, Shah Alam, Selangor. A follow-up interview was conducted on 25 January 2008; Tuan Khairul
Azwadi, a sulhofficer at the Syariah High Court, Shah Alam, Selangor, on 1 February 2008; and Puan Siti Noraini, a sulhofficer at the
Syariah Subordinate Court, Gombak Timur, Selangor who was first interviewed on Friday, 15 October 2004. A follow-up interview was
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conducted on 11 September 2008.

n44 The practice of providing legal information on the Selangor Islamic Family Law and also Hukum Syarak (Islamic Law) is also done
in the Syariah High Court, Shah Alam, in a small number of cases where parties are not represented by lawyers, thus they lack understanding
of the relevant laws; information obtained from Tuan Mohamad Ridzuan bin Zainudin.

n45 Information from Maklumat dan Kertas Kerja Pegawai Sulh, Mahkamah Syariah Selangor 2002, at p 3, prepared by Tuan Mohamad
Ridzuan bin Zainudin; see n 43.

n46 Information obtained from Puan Siti Noraini see n 43.

n47 See n 44 and also information from Maklumat dan Kertas Kerja PegawaiSulh, Mahkamah Syariah Selangor, 2002 at p 3, prepared by
Tuan Mohamad Ridzuan bin Zainudin.

n48 Ibid.

n49 A statement made by one MMC mediator, who was interviewed in Kuala Lumpur on Thursday, 28 October 2004. He agreed to be
interviewed on the condition of anonymity.

n50 A statement made by one MMC mediator, who was interviewed in Johor on Tuesday, 26 October 2004. She agreed to be interviewed
on the condition of anonymity.

n51 Mediation reduces obstacles to communication between parties; Yasmin bt Shariff Prospek Mediasi Keluarga, in Seminar Isu-isu
Mahkamah Shariah VII Penyelesaian Konflik Keluarga di Mahkamah Shariah: PerananSulh dan Keberkesanannya, Moot Court, Ahmad
Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, 29 January 2005 at p 4.

n52 A statement made by Mr Phee Boon Leng, a lawyer and an MMC mediator, who was interviewed through email. His reply to the
questions of the writer was made through an email on Friday, 8 October 2004. This facilitative role of a mediator was also mentioned by
two other mediators; see n 49 and n 50. The same was also mentioned by Ms Gunavathi Subramaniam, an MMC mediator and also a
member to the ADR Committee of the Bar Council. She was first interviewed on Monday, 27 September 2004. A follow-up interview was
conducted on 10 September 2008.
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n53 See rr 3 and 4 of the Mediation Rules.

n54 See r 18 of the Mediation Rules.

n55 Rule 3(a) of the Civil Procedure Rule (Sulh) of Selangor 2001 reads together with YA Dr Atras Mohamad Zin Amalan dan
Permasalahan Sulh di Mahkamah Shariah Selangor, in Seminar Isu-isu Mahkamah Shariah VII Penyelesaian Konflik Keluarga di
Mahkamah Shariah: Peranan Sulh dan Keberkesananannya, Moot Court, Ahmad Ibrahim Kulliyyah of Laws, International Islamic
University Malaysia, 29 January 2005 at p 7. The three-month period given is for a particular 'sulh officer' to conduct Majlis Sulh. If parties
in the case referred to Majlis Sulh can achieve a mutual settlement at any time before the three-month period expires, the case will be
immediately forwarded to the relevant Shariah judge for endorsement to give effect to a consent judgment.

n56 Source obtained from Tuan Mohd Nurulazhar, a sulhofficer at the Syariah High Court, Shah Alam, Selangor on 29 August 2008.

n57 Source obtained from Ms Marianna, the Assistant Director of the Bar Council's MMC. The record of cases dealt with by the MMC as
at 18 August 2008 was sent through email to the writer of this paper on Thursday, 11 September 2008.