THE DEVELOPMENT OF FAMILY MEDIATION IN MALAYSIA

Mediation is not a new dispute resolution in Malaysia. In Malaysia, it can be seen

that mediation has been developed and implemented in almost all kinds of civil and syariah
disputes. Generally, mediation is applied in matrimonial disputes. The rules and regulation of
this mediation have been enacted to provide mediation services. In the regulation, it contains
the process and the procedure to govern the matters pertaining to mediation as well as the
mediator itself.
In the mediation process, the parties or the participants are free to settle their own
disputes without being bound by any law or procedures. They have their own right on
deciding for themselves and they also can ask for an assistance from a mediator to help
them consider their disputes based on the needs and interest.
So, this analysis is been conducted purposely to know the development of mediation
in Malaysia. The development of mediation or sulh in Malaysia can be seen and divided into
three phases. First in the pre-colonial era, the colonial era and post-colonial era. In pre-
colonial era, basically this mediation was practised by Malays. The practised will include the
Islamic principles and also the customs of Malays. Generally, the provisions for mediation
that existed in old malay law can be seen in the case of sale and purchase, debt, wages,
hire and rental, and discharges. So, this are the situations where mediation or sulh will be
conducted if there is any disputes occurs between the participants involved.
Besides the parties themselves engaging in the consultation, the third party will be
assigned as a common method in order to solve the disputes between the parties and the
participants. Furthermore, this mediation not only being used to solved the dispute regarding
the daily transactions between the parties but also can be used in the case of matrimonial.
As in the traditional malay social structure, the family represents the most important role in
regulating the individuals. Thus, in every single actions, the family will be involved in
contributing advice and guidance towards the parties. For example, in malay customary
practices, if there is any cases of divorces, which is similar to marriages, both families will
intervene and attempt to resolve the disputes.
After that, the development of mediation in Malaysia can be seen in the colonial era.
The application of mediation in Malaysia is through the English legal systems. The British
adopted the same policy when introducing English laws towards the people. For example, of
there is any disputes pertaining to property between husband and wife, they would resort to
close relative to mediate a settlement. While, the headman or penghulu would be referred for
advice. Although there is clear evidence showing that the mediation during this era had been
exercise, there is not much evidence as to the procedures for mediation during this time.
Last but not least, the development of mediation or sulh in Malaysia can be seen
through the post-colonial era. When Malaya became independent from British in 1957, the
legal system of Malaysia remained unchanged including the mediation or sulh process in
oder to resolving the disputes that occurred between the parties. The English law and also
the Malay custom continued to be applied in all areas except in family matters as the
establishment of Syariah Courts. Although all this things happens, the kadi were continued to
be given a mandate to adjudicate the disputes that involving Muslims.
So through this mediation or sulh process, in the cases involving husband and wife,
the Kadi will become and eyes and ears to the disputes parties and acts as mediator.
Thus, the development of mediation or sulh in Malaysia has go through three phases
of development which are, pre-colonial era, colonial era and post-colonial era. So as we can
see, there are two methods of mediation in family disputes which are mediation by informal
institution and mediation by the Syariah Courts.
 CONCLUSION

The concept of mediation is not new in Islamic law. It is known as sulh which
comprises of negotiation, mediation, conciliation and the act of compromise. Sulh is a part
and parcel of the Islamic legal system. This concept is supported in the Quran and the hadith
of the Prophet SAW. It has been practiced from the pre-Islam period until today. It is an
effective tool that provides amicable, speedy and inexpensive settlement to parties without
having to resort to the litigation system. Thus, sulh should be promoted as the new
alternative to settle cases among Muslims in Malaysia