ADR Past year questions :

Year 2012
1. a. Role of Mediator (20 marks)

b. Art of listening in Negotiation (20 marks)

Negotiations are based on the ongoing exchange of information. It is a process and
therefore takes time.
The key throughout the entire negotiation is to ask questions and, more
importantly, listen carefully. The information you obtain will tell you about the
real interests involved in the negotiations and assist you in creating options,
solutions and win-win agreements.
Look at the steps below [active & reflective]
BALCONY PERSPECTIVE is important

2. Circumstances as misconduct by arbitrator

3. Court can stay arbitrary proceedings in what circumstances?
4. Differences between litigation and arbitration, which is better in commercial disputes?

Year 2013
1. a) Facilitative, Transformative, Evaluative mediation
b) Meaning of distributive bargaining - PIE, all or nothing, [for chances more likely to
win]
c) Integrative bargaining - Put in all and mix, can negotiate 50% 50% chance
d) Active listening & reflective listening, which is better for mediator and why?
e) Advantages of MEDIATION over litigation & other dispute method

2. Problem question
3. Arbitration preferred > decision binding.
i. Discuss process of arbitration.
ii. Circumstances where arbitrators award can be set aside.
4. Advantages & Disadvantages :
i. Mediation & Litigation
ii. Arbitration & Litigation

Year 2014
1. Problem question : try attempting
2. Active listening & Reflective listening (discuss and distinguish)
3. Advantages of Mediation & Arbitration > Litigation. Resolution of
INTERNATIONAL COMMERCIAL DISPUTES. (usually arbitration)
4. Features of Facilitative, Transformative and Evaluative mediation.
Year 2015
1.
2. Distributive negotiation and interest-based negotiation.
3. Active and reflective listening
4. Neighbours Fight over parking space : Mediation / arbitration. (benefits/ advantages)
3 types of mediation : Facilitative, Evaluative, Transformative.

Active Listening v Reflective Listening

ACTIVE LISTENING definition = when make a conscious effort to hear and

understand ppl so you get the complete message
i. Repeat back what I think you said in my terms
ii. Help you understand better
iii. Takes thing from your perspective..and turn it into MY terms, my WORDS, the
way I THINK, and say would it be better if u say it like this
iv. To show : understanding the person & to show interest in what theyre saying.
helps build trust

How?
MOST IMPORTANT - Pay attention when someone is talking
1. By avoiding distractions, give eye contact. Nod, smile and say yes
occasionally. Consistent. To show youre constant listening
2. focus on the content (give proper body language)
3. Resist your thoughts, avoid planning to give a response
4. Avoid interruption, let them finish.
5. Paraphrase and repeat what they say.

Providing feedback : but make sure heard properly first

1. Summarise what theyve said and say it back to them, that have been
listening and understand what they say
2. Reflect - repeating back the word or a phrase, encourage ppl to go on and
expand their thoughts
3. Clarifying what they say
 4. Give words of encouragement
5. But quiet moments are good
6. No need to be neutral, can react. They may be seeking help urgently

Not good in circumstances such as : Marriage. Change it into own interpretation. One bad
thing : the way u think or interpret is not right. this is what you should do

Reflective listening :
i. Opposite of active, better option, Improves relationship.
ii. Seek to understand the speakers idea
iii. And to offer back the idea back to the speaker, to confirm the idea has been
understood correctly. [reconstruct what hes thinking and feeling it]
iv. Empathy is the centre of this approach
v. How to reflect back other persons psychology, the way they think/feel. So that
the other person feels listened.
vi. Not trying to fix anything. You acknowledge that they are feeling what theyre
feeling. Help them understand their own feelings (which they will learn..). I know
you are feeling as such.(not changing anything), just let them feel
understood, and youre on their side.
vii. Let them know we accept their feelings. That these feelings can be discussed
viii. An emotional language

How to do it?
To show that you heard and cared :
1. Focusing on the convo, reducing or eliminate any distraction
2. Genuinely embracing the speakers perspective without necessarily agreeing to it,
by engaging in a NON-JUDGMENTAL approach, encouraging them to speak
freely
3. Mirror-ing the mood of the speaker. Reflecting the emotional state with words and
body language.
4. Summarise what the speakers said using the speakers own words, rather than
paraphrasing. Mirror-ing the concept/ his perspective
5. Identify their feelings [see verbal and non-verbal reactions of them]
For e.g :
a) Client uses one or 2 word responses only youre not interested in opening
up today or
b) rolls his eye youre frustrated
Reflecting and Responding to the speakers specific point [conveys understanding]
a) Example : I dont know what to do Youve exhausted all of your options /
youre feelings lost
b) I cant do anything right Youre disappointed

1. Repeating the procedure for each subject

2. Embrace in thoughtful silence, rather than chit chatting away.

If they ask questions? You reflect the meaning of their questions.

What do you think I should do next? Youre looking for some direction/ready for a
plan to show them this is what I understand from ur question

TOPIC 2 : FACILITATIVE, EVALUATIVE AND TRANSFORMATIVE

MEDIATION.

Facilitative / Elicitive :
- Mediator is to assist the parties in reaching a mutually agreeable resolution
- Focus on clarifying and enhancing communication between the parties.
- Mediator asks questions; validates and normalizes parties' points of view;
searches for interests underneath the positions taken by parties
- Although parties may be in caucus , focus is NOT on the legal merits (different
from evaluative).
- Focus is more on discovering the underlying needs, and HOW those needs might
be met
- More interest-based, not rights-based.
- Mediator will not evaluate the case, but rather assists the parties in finding and
analyzing options for resolution, or achieve a more objective sense of their
alternatives to a negotiated settlement
- Ensure that parties come to agreements based on information and understanding
- Mediator will help to i) brainstorm to generate ideas, and ii) suggest options to
include in a settlement
- The mediator is in charge of the process, while the parties are in charge of the
outcome.
Transformative :
- Mediator is geared towards i. EMPOWERMENT and ii. RECOGNITION
- Empowerment :
- To bring the parties to recognise their weaknesses and how to strengthen their
weakened position.
- Parties become more clear, more confident, articulate and decisive, in making
better decisions for themselves
- Empowerment is to move them away from weakness strength, help the parties see
their position more clearly.
- Mediator watches for opportunities to increase the parties clarity about or skills, in a
way that the parties maintain control of the process and substance of the discussions

- In Recognition :
- Aid parties in the acknowledgement and empathy for the situation and problems of
other party
- Mediator to guide party towards responsiveness, becoming more attentive, open,
trusting and understanding of the other party.
- Mediators allow the parties to choose how much they want to recognize the views of
the opponent, BUT just momentarily being willing to let go of their interest and
focus on the other
- A disputant who experience empowerment and recognition will become more
open, to understand the other party, and to see his perspective of the dispute.

Concept of Transformative mediation that is DIFFERENT from other resolution

in mediation [refer to Zhuang Hongs slides]

Evaluative / Directive Mediation :

- Role is to provide assessment, prediction, and direction
- Mediator will conduct often separate meetings with the parties and their attorneys, or
caucuses to meet privately with them
- To collect information, identify issues and analyse the parties LEGAL arguments
to develop a sense of the ECONOMIC value of the case [costs vs. the benefits of
pursuing a legal resolution rather than settling in mediation]
- More concerned with the legal rights of the parties rather than needs and interests
- To help parties understand the strength and weaknesses of their cases
- To predict what a judge or jury would be likely to do
- Mediator will evaluate who is LIKELY to win, and HOW MUCH the winning party
will probably recover
- A more directive mediator will fit well here.
.
- Usually emerged in court-mandated or court-referred mediation, and attorneys usually
work with the judge to pick the mediator, and are active participants in the mediation.
 - There is an assumption in evaluative mediation that the mediator has substantive
expertise or legal expertise in the substantive area of the dispute. [maybe an
attorney himself]

TOPIC 4 : DISTRIBUTIVE v INTEGRATIVE BARGAINING IN

NEGOTIATION :

NEGOTIATION
1. Recognizing Conflict: In the transaction, the buyer wants to spend as little as possible,
while the seller wants to receive as much as possible.
2. Stating claims: The buyer claims he deserves the car for a certain dollar amount while
the seller claims he deserves more money.
3. Conceding points: The buyer and seller make concessions by altering their claims --
lowering or raising their offers -- in an attempt to reach a compromise that will satisfy
both parties.
Alternative option : your best alternative to negotiated agreement (BATNA). This is the
option you would take if the talks fell through.

BALCONY Principle :
Always calm down, let them vent. Nod, stop and listen to them before thinking of next step. -
you cant control your feeling, but you can choose how you REACT. Whether you wanna act
out your feelings.
You go to the balcony and ask yourself the question : Okay so whats next? and ask yourself
whats in your best interest if this doesnt work out?

Distributive - the fixed pie strategy, since this involves allocating shares of a finite
resource among the negotiators. With limited resources for the taking, every negotiating party
views every other party as an adversary and this is well reflected in the debate over the
allocation of shares. Every party tries to put its best foot forward to grab a bigger chunk of
the resources.
It is a negotiation in which there is a certain, fixed sized pie over which the sides fight.
Zero sum game! I give you how much means how much
Integrative / Interest based win-win bargaining to enlarge the size of the pie.
Theorists call this process creating and claiming value. what is it that the other party wants
- what value can you find for him/her
involves a joint initiative that will prove beneficial to all the negotiating parties. The
negotiators do not build up on how much they will receive; rather all efforts are directed at
increasing the total payoff through mutual cooperation. Since this negotiation strategy is
based on common interests and joint efforts of all the parties involved in the negotiation, each
party perceives the others as friends and collaborators.

Distributive vs. Integrative Negotiation

1. Distributive negotiation ends up in a win-lose situation where some parties stand at
an advantage and the others lose out. On the other hand, integrative negotiation
creates a win-win situation for all the parties.
2. Distributive negotiation is competitive in nature and requires that every party views
every other party as a competitor, while integrative negotiation is collaborative in
nature and all the parties negotiate on friendly terms, acting as allies to one another.
3. Integrative negotiation works as a conflict management tool, whereas distributive
negotiation intensifies the conflicts further.
4. In distributive negotiation every negotiator focuses on meeting his personal
interests, regardless of the loss the others may have to face. In contrast, integrative
negotiation focuses on mutual interests of all the parties and thus, comes up with
constructive solutions that will be beneficial for all.

When to use? : Distributive negotiation is best used when you have some strong advantage
points and youre in a good position to bargain. Contrary to this, integrative negotiation will
be most beneficial in situations where your position is not strong but you still want to win
something in the bargain.

TOPIC 5 : MEDIATION, ARBITRATION and LITIGATION

5.1 MEDIATION :
Uses a mediator, who is a neutral third party to facilitate the discussion between the parties in
an attempt to help the parties resolve their dispute. The decision to mediate requires actual
consent and planning by both parties because a neutral third party will participate in the
process. Mediators do not take sides, decide who is right or wrong, or tell people what to do,
but instead, use their power to help people in conflict to co-ordinate their activities and be
more effective in their bargaining.

Preparing for mediation requires rules to be selected (since mediation is private, the parties
can draft their own rules), the selection of a mediator, the selection of timing and the setting
for the mediation, and the preparation of the participants for their roles in the process.
Suitability :
When the parties in the dispute wish to move on and continue their business relationship. The
act of filing suit against someone that a party wishes to maintain a relationship with may
further divide the parties and increase the hostility surrounding the dispute. Mediation is
helpful in looking to the future by solving the dispute while still maintaining the relationship
between the parties.
family or neighbourhood dispute where parties achieve their own agreement. Except for
divorce, custody, or domestic violence. [Family counselling, labour conflict resolution,
diplomats to prevent war,

ROLE OF MEDIATOR :
Interpretation : mediator = appointed according to Section 7
Section 9 of Mediation Act 2012 :
(1) Shall facilitate a mediation and determine the manner of mediation
(2) May assist parties to reach a satisfactory resolution of the dispute, and suggest options
for settlement
(3) Shall act independently and impartially

Facilitate the process by :

i. Understanding each participants perspective through a pre-caucus
ii. Increasing and evaluating participant interest in solving through mediation
iii. Setting ground rules for improved communication
iv. Coaching participants through the joint session [help each side to rephrase, etc]
v. Equalizing power (e.g between persons in different organizational levels)
vi. Helping participants plan for future interaction [make sure they end in good terms]
Section 10 - submission of statements and documents, mediator can request for new ones at
any time
Section 11- conduct of mediation
(1) private - mediator may meet with parties separately
(2) non-party may join, subject to mediator/ parties consent

Fair conduct in mediation :

i. Ensure communication
ii. Ensure that problems are resolved rather than ignored
 iii. Ensure problems are cured, not allowing to fester (spoil)

Ideal Mediator / Successful mediation :

i. An impartial 3rd party mediator - as long as he is neutral, parties can trust that they
have some safety and not abused by an interested party.
ii. 3rd party who protects the integrity of proceedings - protects the confidentiality
of proceedings.
Not only does he NOT take sides of any party in mediation, he does not
disclose any information.
I.e. no keep record, cant breach confidentiality, and parties cant force a
point not finalised/disputed in the agreement.
Some ADr groups require parties to take all notes on paper then destroy
after session.
Confidentiality also mean facilitator not subject to being a witness.
iii. Good faith on the part of parties
Proceedings is for the parties to seek solution, rather than for an ulterior purpose
(to abuse other party by use of the process)
iv. Ensure presence of parties -
Those with authority (ie mediator) must attend so parties can work towards
resolution.
Other parties NECESSARY must interact with the mediator. (ie parents
who always refer to parents before acting, parents should attend).
v. Pick an appropriate / neutral site of mediation

Caucus :
parties are in separate rooms and
mediator acts as a middle person moving from party to party with their proposals

Process of Mediation (no fixed) :

1. Introductory joint session, introduce the parties to the mediation process

2. Mediator explains ground rules & mediation process
3. The parties summary statements of the facts and the issues as perceived by the
parties
4. After the opening session, parties separated into private caucus rooms. Mediator
then meets separately with each other.
5. Mediator makes sure that he/she fully understands the facts of the dispute from
EACH PARTYs perspective
6. Mediator then asks each party to :

Analyse the strength and weakness of its own case

Position of the other party
 Consider possible remedies necessary to resolve the dispute

7. Mediator might take several separate sessions moving from party to party,
understanding the current situation, strength &weakness and possible solutions.
8. Mediator will work back and forth between parties in their caucus - until reach
agreement.

Mediators duty : Remain impartial/neutral - doesnt evaluate position of parties, only assist
them in making their own evaluation and their own decision [depend on whether need to
suggest] and Be patient. Might last half a day or a full day.

End of Mediation : S.12 and S.13 and S.14 [conclusion of mediation, and signing a
settlement agreement, binding on parties]

Termination of mediation - can, by consensus, or withdrawal of any party, or

death/incapacity.

Confidentiality : Section 15.

5.2 ARBITRATION :
Arbitration is a time-tested, cost-effective alternative to litigation. Arbitration is the
submission of a dispute to one or more impartial persons for a final and binding decision,
known as an "award." Awards are made in writing and are generally final and binding on the
parties in the case. It involves a submission of a dispute to a neutral third party. A private
arbitration proceeding is less informal than a trial.

Process of arbitration:

1. Filing and Initiation [Arbitration agreement]

The parties agree to arbitrate their dispute either before the dispute arises or after the
dispute has arisen. An arbitration case begins when one party submits a Demand for
Arbitration to the AAA. The other party (the respondent) is notified by the AAA and a
deadline is set for response.

2. Arbitrator Selection
The AAA works with the parties to identify and select an arbitrator, arbitration panel,
or arbitration service provider based on the criteria determined by the parties.
3. Preliminary Hearing
The arbitrator conducts a preliminary hearing with the parties, to discuss the issues in
the case and procedural matters, such as witnesses, sharing information, and other
matters.
 4. Information Exchange and Preparation
The parties then prepare for presentations and exchange information.
5. Hearings
At the hearing, both parties may present testimony and evidence to the arbitrator.
Unless the case is very complex, this is usually the only hearing before the arbitrator.
6. Post-Hearing Submissions
After the hearing, both parties may present additional documentation, as allowed by
the arbitrator.
7. The Award
Finally, the arbitrator closes the record on the case and issues a decision, including an
award, if applicable.
8. Appeal

When can court stay the arbitration proceedings?

1. manifestly and egregiously improper conduct by the tribunal.
2. potential detriment stemming from an award that may be passed,
3. Irreparable prejudice may be caused without the existence of special circumstances. For
example, where the tribunal has directed the disclosure of confidential documents, irreparable
prejudice may be caused since such disclosure cannot be undone or compensated by costs.

Circumstances where arbitrators award can be set aside (8 grounds):

Answer : An appeal to set aside an award has to be strictly made by the aggrieved party
within 3 months from the date the award was received by it.
Due to misconduct by arbitrator - no competence or integrity of the arbitrator. [Bulk Oil
A.G v Sun International Ltd and Sun Oil Trading Co]
Setting aside an award.

Section 24(2) of The Arbitration Act 1952 provides that Where an arbitrator or umpire has
misconducted himself or the proceedings, or an arbitration or award has been improperly
procured, the High Court may set the award aside."

Section 37(1) of the Arbitration Act 2005 provides for the limited grounds on which an
award can be set aside. The High Court can set aside an award where the party making the
application provides proof that:

1. A party to the arbitration agreement was under an incapacity.

2. The arbitration agreement is not valid under the law.
3. The party making the application was unable to present its case or was not given
proper notice of:
a. the appointment of an arbitrator;
b. the arbitral proceedings.
 4. The award deals with a dispute not contemplated by the terms of the submission to
arbitration.
5. The award contains decisions on matters beyond the scope of the submission to
arbitration.

Section 37(1)(b) of the Arbitration Act provides that the High Court can also set aside the
arbitral award where it finds that:

6. The subject-matter of the dispute is not capable of settlement by arbitration under the
laws of Malaysia.
7. The award is in conflict with the public policy of Malaysia.
8. The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless the agreement was in conflict
with a provision of the Arbitration Act.

Cases of Misconduct :
Koperasi Pos Nasional v Hafsah Bte Mohd Tahir , the high court in setting aside the award
with costs held that the arbitrator had departed from the pleadings and made an award on
an issue that was not before him. By doing so, the arbitrator acted beyond his jurisdiction
and the award ought to be set aside ; (R Rama Chandran v The Industrial Court of Malaysia
& Anor followed).
Further, the arbitrators failure to recognize the principle of law that when no notice
period is given, a reasonable notice period should be adopted as an implied term was an
error of law and therefore, misconduct.
In Syarikat Pemborong Pertanian & Perumahan v. FELDA, Raja Azlan Shah J : the
arbitrator in his finding of determination was guilty of misconduct because he failed to
analyze and appraise material and relevant evidence which affected the award.
It includes failure to perform the essential duties which are cast on an Arbitrator as such :

for instance, failure to observe the rules of natural justice,

appearance of bias or partiality.
It also includes any irregularity of action which is not consonant with the general
principles of equity and good conscience.
These illustrations are not meant to be exhaustive.
In Appalanaidu A/L Nookaiah v Intercontinental Commodities Trading Sdn Bhd : sole
Arbitrator and the Appeal Tribunal heard the parties separately. Neither party had the
opportunity to observe the proceedings. There were no witnesses. [danger of biasness.]
Moran v Llyod - failure by arbitrator to give a party a reasonable and proper opportunity to
put forward his own case
Chung and Wong v CM Lee - arbitrator received information from one party without the
knowledge of the other
Tan Kooi Neoh v Chuah Tye Imm - arbitrator failed to give an opportunity for one party
to cross-examine the other partys witness

Suitability / When to use arbitration?

If the parties are so angry with each other that they cannot communicate
effectively, even with help, or cannot cooperate at all, arbitration is usually more
effective than mediation.
It is also more effective when the problem involves the determination of facts or
interpretation of law.

TOPIC 6 : ADVANTAGES & DISADVANTAGES

Dispute Advantages Disadvantages

a. Mediation Decision to mediate is based on Mediation can be a problem if one

personal or business factors and
not on legal principles - is relatively
simple. There are no complex procedural
or evidentiary rules which must be
followed.
Extremely quick process - Can
solve within a couple of hours or
sessions with a mediator rather
than wait months or even years to
be heard in court, thus lowering
the cost of the dispute.
Flexibility and informality:
Anything can be mediated and
talked about. That means the
smallest of disagreements, such
as, a dispute over a water bill can
be mediated
No court appearance :
substantially reduced conflict and
stress
Less costly than litigation
More control over the content and
the outcome of your case -
participants more satisfied with
or both parties are withholding
information
If mediation does not succeed, the
parties may have wasted time and
money on the process and still face
the expenses of a trial
Either party can withdraw from the
proceedings at any time
Mediation does not always result in
a settlement agreement. Parties
might spend their time and money
in mediation only to find that they
must have their case settled for
them by a court.
Mediation has no formal discovery
process. If one party cannot fully
address the case without first
receiving information from the
other party, there is no way to
compel disclosure of such
information. The party seeking
disclosure must rely instead on the
 the resolution because their active
involvement in the process
created the resolution to the
dispute.
Private - confidential and
preserves the privacy of the
parties records and documents.
Voluntary process
Self-empowering process : the
outcome allows the parties to
control the dispute outcome and
encourages creative solutions.
And result in the immediate
resolution of the dispute if the
parties agree based on the parties
interests and needs.
Preservation of future
relationships
b. Arbitration Parties may negotiate the rules or
they may delegate the formulation
of the rules to the arbitration
service, arbitrator, or the
arbitration panel. [less damaging
or adversarial like a court
litigation]
Hearings are private and
confidential.
Speedier resolution; however,
there can be exceptions due to
multiple parties, arbitrators,
lawyers and litigation strategy
[Some say similar as litigation if
dispute is as complex]
other partys good faith, which may
or may not be enough.
Decision of the mediation is not
binding. Parties may end up filing
suit in court regarding the
legitimacy of the settlement
agreement. One way to prevent this
is to ask the parties to agree that the
resolution reached during mediation
will be binding on all of the parties
involved.
Privacy - Lacks public scrutiny -
lacks the precise checks and balances
which are the principal benefits of the
adversary system [but arguable. Not to
seek justice. Only to reach agreement]
No precedent - confidential nature of
mediation proceedings is that it has
prevented the establishment of a useful
body of case law on mediation
decision. [But also arguable, two
disputants trying to find their own
mutually agreeable solution. If the
parties are happy with the result, why
should any comparison be made to the
results achieved in a similar dispute
but with different parties with different
needs and emotions.]
Arbitration is adversarial : one
side right and the other wrong. No
meeting the interests of both sides
takes decision making power
away from the parties.
This results in a resolution of the
current conflict, but does nothing
to help the parties learn how to
resolve their own conflicts more
effectively in the future, as does
mediation
An arbitration award is final and
may not be appealed. If the parties
are unhappy with the result, they
cannot go to court to try again.
 Less costly; however, there can The arbitrators' decisions can only
be exceptions due to multiple be challenged under very limited
parties, lawyers, arbitrators and circumstancesfor example, if
litigation strategy they can demonstrate that an
arbitrator was biased. Must do so
Exclusionary rules of evidence
within three months or less in a
dont apply; everything can
"motion to vacate."
come into evidence so long as
relevant and non-cumulative
Limited discovery because it is
controlled by what the parties
have agreed upon and it is all
controlled by the arbitrator
Often, the arbitration process is
less adversarial than litigation
which helps to maintain business
relationships between the parties

c. Litigation

d. Negotiation Negotiation requires active Without the cooperation of both

participation by both parties. They parties, there can be no negotiation
must agree to participate

The decision to negotiate is based on

a partys needs and interests and not
on the law

offers the parties complete

flexibility
The parties can establish their
own timetable and are not bound
by the artificial constraints
established by someone else -
The parties establish their own
rules
transaction costs will be
dramatically reduced

The parties control the process

and the outcome