Types of adr

1. Types of ADR
Negotiation, Mediation, Conciliation, Adjudication and Arbitration.
Negotiation
Governs by the Industrial Relations Act 1967
Collective bargaining
13. (1) Where a trade union of workmen has been accorded recognition by an employer or a trade union
of employers—
(a) the trade union of workmen may invite the employer or trade union of employers to commence
collective bargaining; or
(b) the employer or the trade union of employers may invite the trade union of workmen to commence
collective bargaining.
(2) The invitation under subsection (1) shall be in writing and shall set out the proposals for a collective
agreement.
(3) Notwithstanding subsection (1), no trade union of workmen may include in its proposals for a
collective agreement a proposal in relation to any of the following matters, that is to say—
(a) the promotion by an employer of any workman from a lower grade or category to a higher grade or
category;
(b) the transfer by an employer of a workman within the organization of an employer’s profession,
business, trade or work, provided that such transfer does not entail a change to the detriment of a
workman in regard to his terms of employment;
(c) the employment by an employer of any person that he may appoint in the event of a vacancy arising
in his establishment;
(d) the termination by an employer of the services of a workman by reason of redundancy or by reason
of the reorganization of an employer’s profession, business, trade or work or the criteria for such
termination;
(e) the dismissal and reinstatement of a workman by an employer; Industrial Relations 19
(f) the assignment or allocation by an employer of duties or specific tasks to a workman that are
consistent or compatible with the terms of his employment: Provided that nothing in this subsection
shall prohibit a trade union of workmen to raise in the course of any discussion with an employer or
trade union of employers (whether or not the discussion is in the course of any collective bargaining)
questionsof a general character relating to the procedures of promotion ofworkmen notwithstanding
that such questions do not form part ofthe proposals aforesaid.

2. (4) The employer, trade union of employers or trade union of workmen to whom invitation under
subsection (1) has been made shall, within fourteen days from the receipt of the invitation, reply
in writing to the party who has made the invitation notifying acceptance or otherwise of the invitation.
(5) Where an invitation to commence collective bargaining has been made and a reply notifying
acceptance has been given the parties shall commence collective bargaining within thirty days
from the date of receipt of the reply notifying acceptance of the invitation.
(6) Where an invitation to commence collective bargaining has been made and the invitation has been
refused or not been accepted within fourteen days, or where no collective bargaining has commenced
within thirty days from the date of receipt of the reply notifying acceptance of such invitation, the party
making the invitation may notify the Director General in writing, whereupon the Director General may
take such steps as may be necessary or expedient with a view to bringing the parties to commence
collective bargaining without undue delay.
(7) If after such steps, as aforesaid, have been taken, there is still refusal to commence collective
bargaining, a trade dispute shall be deemed to exist upon the matters set out in the invitation.
(8) Where a trade union of workmen considers that an employer or a trade union of employers has
refused to allow without just cause or excuse any question referred to under the proviso to subsection
(3) to be raised in the course of any discussion, the trade union of workmen may, within one month of
such refusal, make representations in writing to the Minister who may, before 20 Laws of Malaysia ACT
177 giving any direction thereon, give an opportunity to the employer or his trade union and the trade
union of workmen to be heard; and the direction of the Minister shall be final and conclusive.
Collective Agreements
14. (1) A collective agreement shall be in writing and signed by the parties to the agreement or by
persons authorized in that behalf.
(2) A collective agreement shall set out the terms of the agreement and shall, where appropriate—
(a) name the parties thereto;
(b) specify the period it shall continue in force which shall not be less than three years from the date of
commencement of the agreement;
(c) prescribe the procedure for its modification and termination; and
(d) unless there exists appropriate machinery established by virtue of an agreement between the parties
for the settlement of disputes, prescribe the procedure for the adjustment of any question that may
arise as to the implementation or interpretation of the agreement and reference of any such question to
the Court for a decision.

3. (3) Any term or condition of employment, contained in a collective agreement, which is less
favourablethan or in contravention of the provisions of any written law applicable to workmen covered
by the said collective agreement, shall be void and of no effect to that extent and the provisions of such
written law shall be substituted therefor.

Conciliation

Deposit of collective agreements
16. (1) A signed copy of the collective agreement shall be jointlydeposited by the parties with the
Registrar within one month fromthe date on which the agreement has been entered into and
theRegistrar shall thereupon bring it to the notice of the Court for itscognizance.
(2) The Court may in its discretion—
(a) refuse to take cognizance of the collective agreementdeposited under subsection (1) if it is of the
opinion thatthe agreement does not comply with section 14; or
(b) before taking cognizance of the collective agreementdeposited under subsection (1), require that
such partthereof as does not comply with section 14 shall be amendedin such manner as the Court may
direct.
(3) If any party to the collective agreement fails to carry outsuch direction the Court may,
notwithstanding any other powerexercisable under this Act, amend the copy of the collective
agreementin the manner directed after giving the parties a reasonable opportunityof being heard and
the agreement so amended shall be deemed tobe the collective agreement between the parties.
(4) (Omitted).
(5) Except in the case provided under subsection (2) or (3), thepowers of the Court under this section
may be exercised by thePresident sitting alone or, in the case of a Division, by the Chairmansitting alone.
Reference of disputes for conciliation
18(3) Where a trade dispute exists or is apprehended, which in hisopinion is not likely to be settled by
negotiation between theparties, the Director General may, if he deems it necessary in thepublic interest,
take such steps as may be necessary or expedientfor promoting a settlement thereof whether or not the
trade disputehas been reported to him.
Information, documents and compulsory conference forconciliation
19. (1) Where a trade dispute has been reported to the DirectorGeneral under subsection 18(1) or
where the Director General hastaken steps under subsection (3) of that section, the party reportingthe

4. dispute and, if directed to do so by the Director General, theother party shall furnish to the Director
General within such periodas may be specified in the direction all the necessary informationrelating to
the matters in dispute, together with, wherever possibleand appropriate, an agreed statement setting
out the points, if any,on which they have already reached agreement and the points onwhich there is
still disagreement.
Representation in conciliation proceedings
19B. (1) In any conciliation proceedings under this Part—
(a) an employer who is a party to the trade dispute mayrepresent himself or be represented by his duly
authorizedemployee, or, where he is a member of a trade union ofemployers be represented by an
officer or employee ofsuch trade union of employers, or, notwithstanding anythingto the contrary
contained in any written law relating tothe registration of trade unions, by any official of anorganization
of employers registered in Malaysia (notbeing a trade union of employers);
(b) a trade union of workmen which is a party to the tradedispute may be represented by an officer or
employee ofsuch trade union, or, notwithstanding anything to thecontrary contained in any written law
relating to theregistration of trade unions, by any official of anorganization of workmen registered in
Malaysia (not beinga trade union of workmen).
(2) Save as provided in subsection (1), a party to a trade disputeshall not, in any conciliation proceedings
under this Part, berepresented by an advocate, adviser, consultant or by any otherperson whatsoever.
S 20 (8) For the purpose of carrying out his functions under this section the Director General—
(a) shall have the power to direct either party to furnish to him, within such period as may be specified
in that direction, such information as he may consider necessary or relevant; and
(b) may, if he deems it necessary or expedient, direct any person engaged in or connected directly or
indirectly with the dismissals to attend a conference to be presided over by the Director General or such
person as he may appoint at such time and place as may be specified in the direction.
Islamic Family Law Act 1984

Divorce by talaq or by order
47. (1) A husband or a wife who desires divorce shall present an application for divorce to the Court in
the prescribed form, accompanied by a declaration containing—
(a) particulars of the marriage and the names, ages and sexof the children, if any, of the marriage;
(b) particulars of the facts giving the Court jurisdiction under section 45;

5. (c) particulars of any previous matrimonial proceedings between the parties, including the place of the
proceedings;
(d) a statement as to the reasons for desiring divorce;
(e) a statement as to whether any, and, if so, what steps had been taken to effect reconciliation;
(f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the
marriage, if any, the care and custody of the children of the marriage, if any, and the division of any
assets acquired through the joint effort of the parties, if any, or, where no such agreement has been
reached, the applicant’s proposals regarding those matters; and
(g) particulars of the order sought. Islamic Family Law (Federal Territories) 31
(2) Upon receiving an application for divorce, the Court shall cause a summons to be served on the other
party together with a copy of the application and the statutory declaration made by the applicant, and
the summons shall direct the other party to appear before the Court so as to enable it to inquire
whether or not the other party consents to the divorce.
(3) If the other party consents to the divorce and the Court is satisfied after due inquiry and
investigation that the marriage has irretrievably broken down, the Court shall advise the husband to
pronounce one talaq before the Court.
(4) The Court shall record the fact of the pronouncement of one talaq, and shall send a certified copy of
the record to the appropriate
Registrar and to the Chief Registrar for registration.
(5) Where the other party does not consent to the divorce or it appears to the Court that there is
reasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appoint
a conciliatory committee consisting of a Religious Officer as Chairman and two other persons, one to act
for the husband and the other for the wife, and refer the case to the committee.
Conciliation
Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute
(including future interest disputes) agree to utilize the services of a conciliator, who then meets with the
parties separately in an attempt to resolve their differences. Conciliation differs from arbitration in that
the conciliation process, in and of itself, has no legal standing, and the conciliator usually has no
authority to seek evidence or call witnesses, usually writes no decision, and makes no award.
Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking
concessions. In mediation, the mediator tries to guide the discussion in a way that optimizes parties
needs, takes feelings into account and reframes representations.

6. Methods
In conciliation the parties seldom, if ever, actually face each other across the table in the presence of the
conciliator.
Effectiveness
Recent studies in the processes of negotiation have indicated the effectiveness of a technique that
deserves mention here. A conciliator assists each of the parties to independently develop a list of all of
their objectives (the outcomes which they desire to obtain from the conciliation). The conciliator then
has each of the parties separately prioritize their own list from most to least important. He/She then
goes back and forth between the parties and encourages them to "give" on the objectives one at a time,
starting with the least important and working toward the most important for each party in turn. The
parties rarely place the same priorities on all objectives, and usually have some objectives that are not
listed by the other party. Thus the conciliator can quickly build a string of successes and help the parties
create an atmosphere of trust which the conciliator can continue to develop.
Most successful conciliators are highly skilled negotiators. Some conciliators operate under the auspices
of any one of several non-governmental entities, and for governmental agencies such as the Federal
Mediation and Conciliation Service
From: BAR COUNCIL OF MALAYSIA

Malaysian Mediation Centre (MMC)
The Malaysian Mediation Centre (MMC) is a body established in the year 1999, under the auspices of
the Bar Council with the objective of promoting mediation as a means of alternative dispute resolution
and to provide a proper avenue for successful dispute resolutions. The MMC is based in Kuala Lumpur
and shares premises with the Bar Council. Other centres will be established in other States if and when
the need arises. The Alternative Dispute Resolution Committee of the Bar Council is responsible for the
proper functioning and implementation of the Centre's objectives.


How does one go about registering a matter for
Mediation?

1.

Firstly, both parties must be agreeable to referring their matter for mediation.

7. 2.

Secondly, parties are to complete a Mediation Request Form (MRF) and submit the form to the
MMC together with a non-refundable deposit of RM100.00 for processing fee. Parties are to set
out a brief summary of the case in dispute.



3.

Upon receipt of the MRF, the MMC will forward parties
i. a set of the Mediation Kit which contains the followings :


a. Mediation Rules;



b. Mediator’s Code of Conduct;


c. Standard Mediation Agreement;


d. Standard Settlement Agreement.



4.

Parties are to agree to the appointment of a Mediator empanelled on the Panel of Mediators of
the Malaysian Mediation Centre. An updated list of Mediators is attached herewith for ease of
reference. Upon receipt of the said information, the MMC will inform the Mediator concerned
accordingly. The parties would also be advised on the fees payable prior to the Mediation process
which is based on the quantum of claim.




5.

As regards the appointment of a Mediator, in the event parties are unable to agree to the
appointment of a Mediator, the Chairperson of the MMC shall proceed to appoint one of the
parties’ behalf in order to proceed with the Mediation process.




6.

At the moment, the MMC is extending a special rate for all cases referred by the Courts for
Mediation.

Principles of arbitration
1) Privacy
2) Confidential
3) Secrecy
4) Choice of the selection of mediator is on disputing parties
5) Terms agreed by both parties will be written down by the mediator (Arbitration Act 2005)

8. Law Reform (Marriage &Divorce ) Act 1976
Injunction against molestation
S 103.The court shall have power during the pendency of anymatrimonial proceedings or on or after the
grant of a decree ordivorce, judicial separation or annulment, to order any person torefrain from forcing
his or her society on his or her spouse orformer spouse and from other acts of molestation.
Requirement of reference to conciliatory body before petitionfor divorce
S 106.(1) No person shall petition for divorce, except under sections51 and 52, unless he or she has first
referred the matrimonialdifficulty to a conciliatory body and that body has certified thatit has failed to
reconcile the parties:Provided that this requirement shall not apply in any case—
(i) where the petitioner alleges that he or she has been desertedby and does not know the whereabouts
of his or herspouse;
(ii) where the respondent is residing abroad and it is unlikelythat he or she will enter the jurisdiction
within six monthsnext ensuing after the date of the petition;
(iii) where the respondent has been required to appear beforea conciliatory body and has wilfully failed
to attend;
(iv) where the respondent is imprisoned for a term of fiveyears or more;
(v) where the petitioner alleges that the respondent is sufferingfrom incurable mental illness; or
(vi) where the court is satisfied that there are exceptionalcircumstances which make reference to a
conciliatorybody impracticable.
(2) A matrimonial difficulty may be referred to any conciliatorybody acceptable to both parties but,
where they are unable to agreeon a conciliatory body, shall be referred to the marriage tribunalfor the
area in which they reside or, where they are living indifferent areas, to the marriage tribunal for the area
in which theyhad last resided together.
58 Laws of Malaysia ACT 164
(3) A “conciliatory body” means—(a) a council set up for the purposes of reconciliation by
theappropriate authority of any religion, community, clan orassociation;
(b) a marriage tribunal; or
(c) any other body approved as such by the Minister bynotice in the Gazette.
(4) A marriage tribunal shall be set up for such specified areaor district as the Minister may decide,
consisting of a Chairmanand not less than two nor more than four other members who shallbe

9. nominated by the Minister, or by such officer to whom theMinister may have delegated his powers to in
that behalf.
(5) (a) A conciliatory body to which a matrimonial difficultyhas been referred shall resolve it within the
period of six monthsfrom the date of reference; and shall require the attendance of theparties and shall
give each of them an opportunity of being heardand may hear such other persons and make such
inquiries as it maythink fit and may, if it considers it necessary, adjourn its proceedingsfrom time to
time.
(b) If the conciliatory body is unable to resolve the matrimonialdifficulty to the satisfaction of the parties
and to persuade themto resume married life together, it shall issue a certificate to that effect and may
append to its certificate such recommendations asit thinks fit regarding maintenance, division of
matrimonial propertyand the custody of the minor children, if any, of the marriage.
(c) No advocate or solicitor shall appear or act as such for anyparty in any proceeding before a
conciliatory body and no partyshall be represented by any person, other than a member of his orher
family, without the leave of the conciliatory body.
Negotiating without the principle negotiation
Negotiation means to decide, to come to decisions.
Positional negotiation – applies the gladiator concept, all out to win, one disputing side is aggressive
with the negotiation
Principle negotiation – 1) Person will separate people from problem
2) Focus on interest not position
3) Invent options for mutual gains
4) Use the objective criteria
Principle negotiations often called as problems solvent. The goal is for the outcomes to be amicable .
Tend to trust another. It explores many options and develops many options to solve the problems. The
decision is based on standards. Communication skills, writing skills, analytical skills and planning skills
are required to be a good negotiator.