SHOULD JUDGES MEDIATE: MALAYSIA PERSPECTIVE

Abstract

The judicial mediation which is very important in the society to resolve the problems quickly between the parties, but this judicial mediation has recently been in constant criticism as to whether Judges should mediate in undertaking disputes or not. This paper explains that judges are unable to maintain the mediation because there is a lacuna of proper mediation skills by the judges that how to handle the mediation. Further, the element of confidentiality and private discussions with parties puts a judge at risk of being seen as not impartial and they do not achieve a settlement from sitting on the trial, limiting the available judges for the case. This paper also shows that judges are accused of unfairness with the parties in private discussion, even make threats through judicial mediation purposes which goes against the public confidence of the parties. Nevertheless, the aim of this paper is that why judges should not mediate regarding critical issues when lawyers provide swift results to the clients because of remaining mediation training with better knowledge than judges. If the judges make mediation, clients will be deprived of their original mediation’s right by the biases of the judges. On the contrary, lawyers are very expert in unraveling such types of perilous problems which are applied in Malaysia. In this paper, I will show some moral sides of the judges for mediation on my first stage and then it will be focused that judges should not mediate through the mediation process.