The Potential of the Singapore Convention in Malaysia
Founder of Messrs Shanti Abraham & Associates, SIMI Certified Mediator
Shanti Abraham, the founder of Messrs Shanti Abraham & Associates (Malaysia) and a SIMI Certified Mediator, has been a practitioner for more than 25 years and remains an avid learner. After reading law in the National University of Singapore, Shanti went on to complete the Programme on Negotiation and Mediation at Harvard Negotiation Institute (Harvard Law School) in 2014, and Advanced Mediation training - Mediating Complex Disputes in 2017. She was also sponsored for training in Investor-State Mediation by the Department of Justice Hong Kong in 2018.
Apart from that, Shanti is also active in the mediation industry as an advocate, a mediator, and a trainer. She is a SIMI Certified Mediator, and an accredited Mediator on the panel of the Securities Industries Dispute Resolution Centre (SIDREC), and Malaysian Mediation Center (MMC). She is also an Associate Mediator with the Singapore Mediation Centre (SMC), and is a Mediation skills trainer in MMC and SMC. Shanti is also a Mediator, Adjudicator and Arbitrator with the Asian International Arbitration Centre (AIAC), and a Director of IGAB Berhad (the Malaysian entity of the CIArb UK). She is also a Fellow of the Chartered Institute of Arbitrators (FCIArb) and a Fellow of the Asian Institute of Arbitrators (FAIADR).
The potential of the Singapore Convention in Malaysia
by Ms. Shanti Abraham
Date: 22 April 2019
Time: 19:00 GMT+8:00 / 1:00PM CEST
Ms. Shanti Abraham (founder of Messrs Shanti Abraham & Associates, SIMI Certified Mediator, and a member of IMI’s Investor State Taskforce) gave a remarkable presentation on ‘The potential of the Singapore Convention on Mediation in Malaysia’. Ms. Abraham began her presentation with an overview of mediation’s landscape in Malaysia. She shared that Malaysia had enacted a Mediation Act in 2012 and is a proud signatory to the Singapore Convention on Mediation1 (‘SCM’). She also stated that Malaysia has in place robust ad hoc mediation and institutional mediation mechanisms. Some of the leading mediation institutions in Malaysia include and are not exhaustive to the Malaysian Mediation Centre (‘MMC’), the Asian International Arbitration Centre (‘AIAC’) and the Securities Industries Dispute Resolution Centre (‘SIDREC’).2
Diving into the history of mediation in Malaysia, Ms. Abraham shared that Malaysia began its mediation journey in the 90s. However, the lack of financial resources and regulatory framework hindered its growth. Mediation was also previously considered within a charitable frame, so it was common for mediators to be senior lawyers seeking to do social work as a way to give back to society. Put simply, one could call them “social mediators”. Moreover, people also expected mediation to be free. This resulted in mediation having a low value proposition.
Ms. Abraham also discussed court-annexed mediation. It was also considered to be a charitable arm of law firms when it was first adopted. Consequently, she believed that it led to a “just mediation” mentality whereby lawyers were expected to reduce or even waive their legal fees as part of their contribution to social work aims. Ms. Abraham opined that all of this made it difficult to develop a viable business model. As such, the Mediation Act 2012 (‘the 2012 Act’) was enacted to tackle these issues. However, the 2012 Act did not include any enforcement provisions.
Ms. Abraham believed that the situation will soon change as the SCM has sparked interest and started new discussions in Malaysia. She emphasized the importance of drafting standards for mediators as more people start to train to be professional mediators. Furthermore, these standards, when in place, would differentiate the professional mediators from social mediators. Ms. Abraham highlighted some initiatives that the MMC have in place to train lawyers (or mediation advocates) and mediators to appreciate the value of their services whilst promoting a good working relationship with each other as they help parties achieve settlement.
Apart from that, Ms. Abraham noticed that an increasing number of international parties are considering mediation as a dispute resolution option, and many have also incorporated mediation clauses in their commercial contracts.
Relating to the current Covid-19 situation, she shared about a potential initiative that could be rolled out by the authorities - the National Covid-19 Mediation Initiative. It is hoped that this initiative would give lawyers another reason to advocate mediation as a swift and cost-effective method of dispute resolution. Such a benefit, as offered by mediation as a dispute resolution, would be very much welcomed by business owners facing financial and economic crunch as a result of the pandemic.
Moving forward, Ms. Abraham stated that the Malaysian government has formed working groups to amend the 2012 Act to align it with the requirements of the SCM so that Malaysia can ratify the SCM soon. She also suggested some actions that should be undertaken to reap the full benefits of the SCM in Malaysia:
- Mediators should work to enhance their skills to reach international standards in both traditional (face-to-face meetings) and online mediations.
- Mediation standards for mediators in Malaysia should be similar to the international standards established by the IMI and the SIMI.
- The rules of etiquette for lawyers and/or mediation advocates should be framed to enhance professionalism and reduce biases they may have towards mediators.
- Businesses could adopt a ‘mediate-first’ initiative,3 ‘mediate-encouraged’ initiative, and/or even a ‘good case, let’s mediate’ initiative.
Ms. Abraham concluded the presentation by encouraging lawyers to consider their clients’ best interests, and the financial implications of arbitration and litigation for all parties before deciding which dispute resolution mechanism is the best option for their client.
Q&A / Topics for Discussion
Some questions addressed by Ms. Abraham during the session:
- How will the SCM impact the attraction of a Med-Arb approach?
- Will there be an uptick in commercial mediation cases in South East Asia due to the rise in debt defaults? And what are States doing to encourage mediation in place of aggressive enforcement?
- Are arbitral institutions such as AIAC needed to support optimization and promotion of mediation in Malaysia?
- Can a certified mediator conduct private mediation sessions in Malaysia? If yes, would any settlement be enforceable?
- How often do courts in Malaysia direct the parties of a dispute to mediation?
We invite you to listen to Ms. Abraham’s answers from the video record of the session, as well as to catch up on her responses to other questions not listed above here
Links to additional resources on topics that came up during the discussion are listed below:
The team at SIMI and IMI would like to express our gratitude to Ms. Abraham for sharing her time to be a speaker at the Singapore Convention Seminar Series, and to participants for joining us live for the session. Do join us for our next seminar on ‘Singapore Convention on Mediation and the recent developments on mediation in Greece’!
1Officially named United Nations Convention on International Settlement Agreements Resulting from Mediation.
2Links for each of the named organisations are embedded in the article for the reader’s easy reference and convenience.
3Mediate-First’ is an example drawn from Hong Kong. The country launched a campaign called Mediate First Pledge in 2009 to promote the use of mediation to resolve disputes in Hong Kong. Further information can be found here.