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Types of adr

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  • 1. Types of ADRNegotiation, Mediation, Conciliation, Adjudication and Arbitration.NegotiationGoverns by the Industrial Relations Act 1967Collective bargaining13. (1) Where a trade union of workmen has been accorded recognition by an employer or a trade unionof employers—(a) the trade union of workmen may invite the employer or trade union of employers to commencecollective bargaining; or(b) the employer or the trade union of employers may invite the trade union of workmen to commencecollective bargaining.(2) The invitation under subsection (1) shall be in writing and shall set out the proposals for a collectiveagreement.(3) Notwithstanding subsection (1), no trade union of workmen may include in its proposals for acollective agreement a proposal in relation to any of the following matters, that is to say—(a) the promotion by an employer of any workman from a lower grade or category to a higher grade orcategory;(b) the transfer by an employer of a workman within the organization of an employer’s profession,business, trade or work, provided that such transfer does not entail a change to the detriment of aworkman in regard to his terms of employment;(c) the employment by an employer of any person that he may appoint in the event of a vacancy arisingin his establishment;(d) the termination by an employer of the services of a workman by reason of redundancy or by reasonof the reorganization of an employer’s profession, business, trade or work or the criteria for suchtermination;(e) the dismissal and reinstatement of a workman by an employer; Industrial Relations 19(f) the assignment or allocation by an employer of duties or specific tasks to a workman that areconsistent or compatible with the terms of his employment: Provided that nothing in this subsectionshall prohibit a trade union of workmen to raise in the course of any discussion with an employer ortrade union of employers (whether or not the discussion is in the course of any collective bargaining)questionsof a general character relating to the procedures of promotion ofworkmen notwithstandingthat such questions do not form part ofthe proposals aforesaid.
  • 2. (4) The employer, trade union of employers or trade union of workmen to whom invitation undersubsection (1) has been made shall, within fourteen days from the receipt of the invitation, replyin writing to the party who has made the invitation notifying acceptance or otherwise of the invitation.(5) Where an invitation to commence collective bargaining has been made and a reply notifyingacceptance has been given the parties shall commence collective bargaining within thirty daysfrom the date of receipt of the reply notifying acceptance of the invitation.(6) Where an invitation to commence collective bargaining has been made and the invitation has beenrefused or not been accepted within fourteen days, or where no collective bargaining has commencedwithin thirty days from the date of receipt of the reply notifying acceptance of such invitation, the partymaking the invitation may notify the Director General in writing, whereupon the Director General maytake such steps as may be necessary or expedient with a view to bringing the parties to commencecollective bargaining without undue delay.(7) If after such steps, as aforesaid, have been taken, there is still refusal to commence collectivebargaining, a trade dispute shall be deemed to exist upon the matters set out in the invitation.(8) Where a trade union of workmen considers that an employer or a trade union of employers hasrefused to allow without just cause or excuse any question referred to under the proviso to subsection(3) to be raised in the course of any discussion, the trade union of workmen may, within one month ofsuch refusal, make representations in writing to the Minister who may, before 20 Laws of Malaysia ACT177 giving any direction thereon, give an opportunity to the employer or his trade union and the tradeunion of workmen to be heard; and the direction of the Minister shall be final and conclusive.Collective Agreements14. (1) A collective agreement shall be in writing and signed by the parties to the agreement or bypersons authorized in that behalf.(2) A collective agreement shall set out the terms of the agreement and shall, where appropriate—(a) name the parties thereto;(b) specify the period it shall continue in force which shall not be less than three years from the date ofcommencement of the agreement;(c) prescribe the procedure for its modification and termination; and(d) unless there exists appropriate machinery established by virtue of an agreement between the partiesfor the settlement of disputes, prescribe the procedure for the adjustment of any question that mayarise as to the implementation or interpretation of the agreement and reference of any such question tothe Court for a decision.
  • 3. (3) Any term or condition of employment, contained in a collective agreement, which is lessfavourablethan or in contravention of the provisions of any written law applicable to workmen coveredby the said collective agreement, shall be void and of no effect to that extent and the provisions of suchwritten law shall be substituted therefor.ConciliationDeposit of collective agreements16. (1) A signed copy of the collective agreement shall be jointlydeposited by the parties with theRegistrar within one month fromthe date on which the agreement has been entered into andtheRegistrar shall thereupon bring it to the notice of the Court for itscognizance.(2) The Court may in its discretion—(a) refuse to take cognizance of the collective agreementdeposited under subsection (1) if it is of theopinion thatthe agreement does not comply with section 14; or(b) before taking cognizance of the collective agreementdeposited under subsection (1), require thatsuch partthereof as does not comply with section 14 shall be amendedin such manner as the Court maydirect.(3) If any party to the collective agreement fails to carry outsuch direction the Court may,notwithstanding any other powerexercisable under this Act, amend the copy of the collectiveagreementin the manner directed after giving the parties a reasonable opportunityof being heard andthe agreement so amended shall be deemed tobe the collective agreement between the parties.(4) (Omitted).(5) Except in the case provided under subsection (2) or (3), thepowers of the Court under this sectionmay be exercised by thePresident sitting alone or, in the case of a Division, by the Chairmansitting alone.Reference of disputes for conciliation18(3) Where a trade dispute exists or is apprehended, which in hisopinion is not likely to be settled bynegotiation between theparties, the Director General may, if he deems it necessary in thepublic interest,take such steps as may be necessary or expedientfor promoting a settlement thereof whether or not thetrade disputehas been reported to him.Information, documents and compulsory conference forconciliation19. (1) Where a trade dispute has been reported to the DirectorGeneral under subsection 18(1) orwhere the Director General hastaken steps under subsection (3) of that section, the party reportingthe
  • 4. dispute and, if directed to do so by the Director General, theother party shall furnish to the DirectorGeneral within such periodas may be specified in the direction all the necessary informationrelating tothe matters in dispute, together with, wherever possibleand appropriate, an agreed statement settingout the points, if any,on which they have already reached agreement and the points onwhich there isstill disagreement.Representation in conciliation proceedings19B. (1) In any conciliation proceedings under this Part—(a) an employer who is a party to the trade dispute mayrepresent himself or be represented by his dulyauthorizedemployee, or, where he is a member of a trade union ofemployers be represented by anofficer or employee ofsuch trade union of employers, or, notwithstanding anythingto the contrarycontained in any written law relating tothe registration of trade unions, by any official of anorganizationof employers registered in Malaysia (notbeing a trade union of employers);(b) a trade union of workmen which is a party to the tradedispute may be represented by an officer oremployee ofsuch trade union, or, notwithstanding anything to thecontrary contained in any written lawrelating to theregistration of trade unions, by any official of anorganization of workmen registered inMalaysia (not beinga trade union of workmen).(2) Save as provided in subsection (1), a party to a trade disputeshall not, in any conciliation proceedingsunder this Part, berepresented by an advocate, adviser, consultant or by any otherperson whatsoever.S 20 (8) For the purpose of carrying out his functions under this section the Director General—(a) shall have the power to direct either party to furnish to him, within such period as may be specifiedin that direction, such information as he may consider necessary or relevant; and(b) may, if he deems it necessary or expedient, direct any person engaged in or connected directly orindirectly with the dismissals to attend a conference to be presided over by the Director General or suchperson as he may appoint at such time and place as may be specified in the direction.Islamic Family Law Act 1984Divorce by talaq or by order47. (1) A husband or a wife who desires divorce shall present an application for divorce to the Court inthe prescribed form, accompanied by a declaration containing—(a) particulars of the marriage and the names, ages and sexof the children, if any, of the marriage;(b) particulars of the facts giving the Court jurisdiction under section 45;
  • 5. (c) particulars of any previous matrimonial proceedings between the parties, including the place of theproceedings;(d) a statement as to the reasons for desiring divorce;(e) a statement as to whether any, and, if so, what steps had been taken to effect reconciliation;(f) the terms of any agreement regarding maintenance and habitation of the wife and the children of themarriage, if any, the care and custody of the children of the marriage, if any, and the division of anyassets acquired through the joint effort of the parties, if any, or, where no such agreement has beenreached, the applicant’s proposals regarding those matters; and(g) particulars of the order sought. Islamic Family Law (Federal Territories) 31(2) Upon receiving an application for divorce, the Court shall cause a summons to be served on the otherparty together with a copy of the application and the statutory declaration made by the applicant, andthe summons shall direct the other party to appear before the Court so as to enable it to inquirewhether or not the other party consents to the divorce.(3) If the other party consents to the divorce and the Court is satisfied after due inquiry andinvestigation that the marriage has irretrievably broken down, the Court shall advise the husband topronounce one talaq before the Court.(4) The Court shall record the fact of the pronouncement of one talaq, and shall send a certified copy ofthe record to the appropriateRegistrar and to the Chief Registrar for registration.(5) Where the other party does not consent to the divorce or it appears to the Court that there isreasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appointa conciliatory committee consisting of a Religious Officer as Chairman and two other persons, one to actfor the husband and the other for the wife, and refer the case to the committee.ConciliationConciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute(including future interest disputes) agree to utilize the services of a conciliator, who then meets with theparties separately in an attempt to resolve their differences. Conciliation differs from arbitration in thatthe conciliation process, in and of itself, has no legal standing, and the conciliator usually has noauthority to seek evidence or call witnesses, usually writes no decision, and makes no award.Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seekingconcessions. In mediation, the mediator tries to guide the discussion in a way that optimizes partiesneeds, takes feelings into account and reframes representations.
  • 6. MethodsIn conciliation the parties seldom, if ever, actually face each other across the table in the presence of theconciliator.EffectivenessRecent studies in the processes of negotiation have indicated the effectiveness of a technique thatdeserves mention here. A conciliator assists each of the parties to independently develop a list of all oftheir objectives (the outcomes which they desire to obtain from the conciliation). The conciliator thenhas each of the parties separately prioritize their own list from most to least important. He/She thengoes back and forth between the parties and encourages them to "give" on the objectives one at a time,starting with the least important and working toward the most important for each party in turn. Theparties rarely place the same priorities on all objectives, and usually have some objectives that are notlisted by the other party. Thus the conciliator can quickly build a string of successes and help the partiescreate an atmosphere of trust which the conciliator can continue to develop.Most successful conciliators are highly skilled negotiators. Some conciliators operate under the auspicesof any one of several non-governmental entities, and for governmental agencies such as the FederalMediation and Conciliation ServiceFrom: BAR COUNCIL OF MALAYSIAMalaysian Mediation Centre (MMC)The Malaysian Mediation Centre (MMC) is a body established in the year 1999, under the auspices ofthe Bar Council with the objective of promoting mediation as a means of alternative dispute resolutionand to provide a proper avenue for successful dispute resolutions. The MMC is based in Kuala Lumpurand shares premises with the Bar Council. Other centres will be established in other States if and whenthe need arises. The Alternative Dispute Resolution Committee of the Bar Council is responsible for theproper functioning and implementation of the Centres objectives.How does one go about registering a matter forMediation?1. Firstly, both parties must be agreeable to referring their matter for mediation.
  • 7. Secondly, parties are to complete a Mediation Request Form (MRF) and submit the form to the2. MMC together with a non-refundable deposit of RM100.00 for processing fee. Parties are to set out a brief summary of the case in dispute.3. Upon receipt of the MRF, the MMC will forward parties i. a set of the Mediation Kit which contains the followings : a. Mediation Rules; b. Mediator’s Code of Conduct; c. Standard Mediation Agreement; d. Standard Settlement Agreement. Parties are to agree to the appointment of a Mediator empanelled on the Panel of Mediators of the Malaysian Mediation Centre. An updated list of Mediators is attached herewith for ease of4. reference. Upon receipt of the said information, the MMC will inform the Mediator concerned accordingly. The parties would also be advised on the fees payable prior to the Mediation process which is based on the quantum of claim. As regards the appointment of a Mediator, in the event parties are unable to agree to the5. appointment of a Mediator, the Chairperson of the MMC shall proceed to appoint one of the parties’ behalf in order to proceed with the Mediation process. At the moment, the MMC is extending a special rate for all cases referred by the Courts for6. Mediation.Principles of arbitration 1) Privacy 2) Confidential 3) Secrecy 4) Choice of the selection of mediator is on disputing parties 5) Terms agreed by both parties will be written down by the mediator (Arbitration Act 2005)
  • 8. Law Reform (Marriage &Divorce ) Act 1976Injunction against molestationS 103.The court shall have power during the pendency of anymatrimonial proceedings or on or after thegrant of a decree ordivorce, judicial separation or annulment, to order any person torefrain from forcinghis or her society on his or her spouse orformer spouse and from other acts of molestation.Requirement of reference to conciliatory body before petitionfor divorceS 106.(1) No person shall petition for divorce, except under sections51 and 52, unless he or she has firstreferred the matrimonialdifficulty to a conciliatory body and that body has certified thatit has failed toreconcile the parties:Provided that this requirement shall not apply in any case—(i) where the petitioner alleges that he or she has been desertedby and does not know the whereaboutsof his or herspouse;(ii) where the respondent is residing abroad and it is unlikelythat he or she will enter the jurisdictionwithin six monthsnext ensuing after the date of the petition;(iii) where the respondent has been required to appear beforea conciliatory body and has wilfully failedto attend;(iv) where the respondent is imprisoned for a term of fiveyears or more;(v) where the petitioner alleges that the respondent is sufferingfrom incurable mental illness; or(vi) where the court is satisfied that there are exceptionalcircumstances which make reference to aconciliatorybody impracticable.(2) A matrimonial difficulty may be referred to any conciliatorybody acceptable to both parties but,where they are unable to agreeon a conciliatory body, shall be referred to the marriage tribunalfor thearea in which they reside or, where they are living indifferent areas, to the marriage tribunal for the areain which theyhad last resided together.58 Laws of Malaysia ACT 164(3) A “conciliatory body” means—(a) a council set up for the purposes of reconciliation bytheappropriate authority of any religion, community, clan orassociation; (b) a marriage tribunal; or (c) any other body approved as such by the Minister bynotice in the Gazette.(4) A marriage tribunal shall be set up for such specified areaor district as the Minister may decide,consisting of a Chairmanand not less than two nor more than four other members who shallbe
  • 9. nominated by the Minister, or by such officer to whom theMinister may have delegated his powers to inthat behalf.(5) (a) A conciliatory body to which a matrimonial difficultyhas been referred shall resolve it within theperiod of six monthsfrom the date of reference; and shall require the attendance of theparties and shallgive each of them an opportunity of being heardand may hear such other persons and make suchinquiries as it maythink fit and may, if it considers it necessary, adjourn its proceedingsfrom time totime.(b) If the conciliatory body is unable to resolve the matrimonialdifficulty to the satisfaction of the partiesand to persuade themto resume married life together, it shall issue a certificate to that effect and mayappend to its certificate such recommendations asit thinks fit regarding maintenance, division ofmatrimonial propertyand the custody of the minor children, if any, of the marriage.(c) No advocate or solicitor shall appear or act as such for anyparty in any proceeding before aconciliatory body and no partyshall be represented by any person, other than a member of his orherfamily, without the leave of the conciliatory body.Negotiating without the principle negotiationNegotiation means to decide, to come to decisions.Positional negotiation – applies the gladiator concept, all out to win, one disputing side is aggressivewith the negotiationPrinciple negotiation – 1) Person will separate people from problem 2) Focus on interest not position 3) Invent options for mutual gains 4) Use the objective criteriaPrinciple negotiations often called as problems solvent. The goal is for the outcomes to be amicable .Tend to trust another. It explores many options and develops many options to solve the problems. Thedecision is based on standards. Communication skills, writing skills, analytical skills and planning skillsare required to be a good negotiator.