ALTERNATIVE
DISPUTE
RESOLUTION
MEANING AND FACTORS BEHIND
07 THE EMERGENCE OF ADR
10
PREPARED BY
SYAFINAZ BT IDRUS (244653)
LATIFAH KAYISAH (248159)
MAHRAN RAFHANAH (244601)
MOHD ZULKARNAIN (244506)
GLUP 4233 MAHALATCUMI (244394)
MEANING OF ADR
Alternative Dispute Resolution (ADR)
REFERS TO A SET OF
PRACTICES AND TECHNIQUES
FOR DISAGREEING PARTIES TO
SOLVE THEIR LEGAL DISPUTES
OUTSIDE THE COURT WITH THE
HELP OF A THIRD PARTY.
ADR have emerged that aim to resolve
conflicts amicably due to crowding courts
affects the entire judicial system, the justice
seeker loses money and time.
IT CAN BE EMPLOYED IN SEVERAL CATEGORIES
OF DISPUTES, ESPECIALLY
CIVIL, COMMERCIAL, INDUSTRIAL AND FAMILY
DISPUTES
GLUP 4233
FACTORS OF EMERGENCE
ISSUES OF REMEDIES
REMEDIES IN LITIGATION
LITIGATION PROCESS INVOLVE JUDICIAL
AND EQUITABLE REMEDIES WHICH THE
COURT WOULD GRAND THE PARTIES OF THE
CASE BASED OF THE PRINCIPLES OF
FAIRNESS. HOWEVER PARTIES OF THE CASE
WOULD NOT BE SATISFIED BY THE REMEDIES
AND OFTEN FILE FOR AN APPEAL
CREATIVE REMEDIES IN ADR
A SOLUTION THAT CAN
SATISFY BOTH PARTIES‘ NEEDS
CREATIVE AGREEMENT IS DIRECTLY RELATED TO
THE SKILLS, EXPERIENCE, AND INHERENT
CHARACTER OF A NEUTRAL THIRD PARTY
REACHING A SETTLEMENT
LATERAL AND UNORTHODOX THINKING
OF THIRD PARTY
SETTLEMENTS CAN INCLUDE HUMAN
FACTORS SUCH AS BUSINESS
RELATIONSHIPS AND PERSONAL ISSUES
CAN BE CONSIDERED
NATURE AND REQUIREMENTS OF
THE PARTIES
THIRD PARTY WOULD TRY TO COME UP
WITH A SOLUTION THAT CAN SATISFY BOTH
PARTIES‘ NEEDS
FOR REFERENCE:
WWW.ENTREPRISESCANADA.CA
FACTOR OF
EMERGENCE
ISSUES OF FLEXIBILITY
THE LITIGATION PROCESS ARE
BINDING AND INFLEXIBLE,
A FLEXIBILITY FORM OF
SETTLEMENT PROCESS WHICH THE
CLIENT IS NOT AT RISK OF BEING
BOUND TO AN
UNFAVORABLE OUTCOME BY A
THIRD PARTY'S DECISION
IF AGREEMENT IS
REACHED BETWEEN THE
PARTIES, A BINDING
SETTLEMENT AGREEMENT
CAN BE ENTERED INTO.
THE EMERGENCE FACTORS OF
ADR IS DUE TO COURT
INFLEXIBILITY UPON THE
DETERMINATION OF DECISION
BASED ON THE LAW AND FACTS
OF THE CASE
THEREFORE THE PARTIES INVOLVES COULD
NOT COME TO A FLEXIBLE SOLUTION WHICH
CAN AVOID IN SEVERING A RELATIONSHIP
BETWEEN PARTIES
BACKLOG CASES OF COURTS IN MALAYSIA AS
AT DECEMBER 2000
350000
No. of cases filed No. of cases resolved
299411
300000
No. of active cases
250000
200000
159163
155478
150000
140248
100047
100000
84329
71149
54235
50000 45812
11109
5496 5613 3813 3637
176
0
Magistrates' Court Sessions Court High Court Court of Appeal Federal Court
In the administration of justice, the
courts are often busy with an
accumulated backlog of cases. The
undue delay affects the disputants
tremendously in terms of time. There
has been disatisfaction expressed by
the public for the inordinate and
inexcusable delay in the disposal of
cases in the courts in Malaysia.
Justice Delayed = Justice Denied
Lenghty and convoluted court procedures have been
identified as the main reason for the delay in the
disposal of cases in court.
There is a shortage of manpower in courts where the
judges can only deal with a certain number of cases
per month as compared to the volume of cases that
are referred for adjudication.
Backlog of cases may also arise due to the failure to
observe the time schedule or the hearing dates and
the unnecessary requests for adjournment or
postponement of cases.
It is also common for one of the disputing parties to
adopt delaying tactics to drag matters out for as long
as possible so as to secure time to settle the matter
and would contribute to backlog of cases.
UNPREDICTABLE OUTCOME
IN LITIGATION SETTING
In a court system, there is
formality of proceedings and
the procedural rules must be
strictly adhered to.
Opportunity for the parties to
be more flexible and may
seek their own outcome
which can be very different
from the result that may be
ordered by a court.
When parties feel in
control of the
outcome and
processes involved
to reach an
agreement, it will
also mitigate the
adversarial climate
between the
DISPUTANTS DEGREE OF CONTROL disputing parties.
IRREPARABLE DAMAGE OF RELATIONSHIPS
BETWEEN THE DISPUTANTS
“Winner takes all”
Inevitably, where the winner takes it all would
damage irreparably the relationship between the
disputants.
A continuing relationship is one of the key
elements for any organization to strive for.
A good relationship is always based on trust,
common interests, and respect and requires the effort
and commitment of the parties to make it last.
ADR methods allow parties to negotiate the process
of dispute resolution and the neutral facilitator assists
both parties to always focus on the issue of the
dispute and try to achieve a win-win situation which
is crucial to disputes that is heavily reliant on
relationships.
“What matters between the parties is not who is right
but what is right for a harmonious relationship to continue.”
Therefore, ADR comes into picture in order to assist the disputing parties to
re-establish trust and respect, and help to prevent damage to any ongoing relationship.
SUBSTANTIAL COSTS
FOR LITIGATING For many people,
going to court is
DISPUTES IN COURT confrontational and
expensive.
The cost of litigation can be substantial
where the parties would usually incur
exorbitant payout to their advocates. An average ADR will
cost the parties a small
fraction as compared to
This state of affairs was aptly noted by
what they would have
Eusoff Chin CJ in
to incur if the case was
R Rama Chandran v Industrial Court of Malaysia & Anor brought to court.
[1997] 1 CLJ 147.
“Employers can certainly afford to employ lawyers
and prolong litigation
and thereby tiring the workers.
The poor workman can ill afford a lawyer
or prolong litigation
because this will lead to immense hardship,
suffering and exorbitant expenses.”
1) PRESERVATION
RELATIONSHIP FOCUSES ON A
GOOD RELATIONSHIP BASED
ON TRUST, COMMON
INTERESTS AND RESPECT
WHICH REQUIRES THE EFFORT
AND COMMITMENT OF THE
PARTIES TO MAKE IT LAST
2) THROUGH
4) THUS, ADR TENDS JUDICIAL
TO ENCHANCE CO- PROCESS, IT
OPERATION AND TO PRESERVATION COULD LOOSEN
BE CONDUCIVE TO RELATIONSHIP UP THE STRONG
THE PRESERVATION RELATIONSHIP
OF RELATIONSHIP. AMONG THE
PARTIES
3) ADR ABLE TO MAKE THE PARTIES COME UP
WITH A SETTLEMENT IN HARMONIUES WAY. ADR
ALSO GIVES PARTIES MORE POWER AND GREATER
CONTROL OVER RESOLVING THE ISSUES BETWEEN
THE PARTIES, ENCOURAGES PRONLEM-SOLVING
APPROACHES AND PROVIDES FOR MORE
EFFECTIVE SETTLEMENTS COVERING SUBSTANCE
AND NUANCE.
DEGREE OF CONTROL
WHEN PARTIES FEEL IN
CONTROL OF THE
OUTCOME AND
PROCESS INVOLVED ITO
REACH AN AGREEMENT
, IT WILL ALSO MITIGATE
THE ADVERSAL CLIMATE THE PARTIES SHOULD BE
BETWEEN DISPUTING FREE TO AGREE HOW
PARTIES THEIR DISPUTES ARE
RESOLVED. IN
ARBITRATION ACT 1996
FOCUS ON PUBLIC
THUS, THERE ARE INTEREST GROUNDS, AND
RESTRICTION PROVIDED LAY DOWN SOME
DURING THE RESTRICTIONS ON WHAT
SETTLEMENT WHICH IS THE PARTIES MAY AGREE.
MADE TO SMOOTHEN
THE SETTLEMENT WITH
THE AGREEMENT OF
BOTH PARTIES IN ORDER
TO AVOLID INEQUALITY
IN SETTLEMENT
REFERENCES
BOOKS
Ashgar Ali Ali Mohamed. Malaysian Legal System. Malaysia: The Malaysian Current Law
Journal Sdn Bhd, 2014.
Henry Brown and Arthur Marriott. ADR Principles and Practice. London: Sweet & Maxwell,
1999.
Simon Davis. ADR and Commercial Disputes. London: Sweet & Maxwell Ltd, 2002.
Feld, J. & Carper, K. L. Construction failure. USA: John Wiley & Sons, Inc, 1997.
Merna, A. & Bower, D. Dispute Resolution in Construction & Infrastructure Projects. Hong
Kong: Asia Law & Practice Publishing Ltd, 1997.
Yaacob, H. Alternative Dispute Resolution (ADR) Expanding Options in Local and Cross
Border Islamic Finance Cases. Malaysia: International Shari’ah Academy for Islamic Finance
(ISRA), 2012.
CASES
R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147
NEWSPAPER
Kaur, M. “Chief Justice: Mediation method proven to reduce case backlog,” The Star Online,
February 22, 2018, https://www.thestar.com.my/news/nation/2018/02/22/chief-justice-
mediation-method-proven-to-reduce-case-backlog (accessed October 1, 2019).
INTERNET RESOURCE
Azzat, F. The Malaysian Bar,
https://www.malaysianbar.org.my/members_opinions_and_comments/the_distinction_betwe
en_legal_fees_and_court_costs.html (accessed September 29, 2019).
