Mediation: Improving access to justice
Published on: Sunday, May 16, 2021
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Hadikusumo (background) with lawyers newly accredited by AMC.
Mediation Centre (AMC), Malaysia, acknowledged as the first and only centre for mediation services and professional accreditation in East Malaysia.
She talked to Daily Express about her passion for alternative dispute resolution (ADR) and why she believed in Sabah’s development as a destination for alternative dispute resolution (ADR), leading to the establishment of the Centre in Kota Kinabalu in 2019 upon her return to Malaysia. AMC provides dispute resolution and mediation case management services in addition to accreditation training for professionals seeking recognised qualifications to practise as accredited mediators.
As a director and mediator of AMC as well as a mediator and senior trainer for the Singapore Mediation Centre (SMC), Hadikusumo frequently trains and examines on the subject of mediation both locally and overseas, and works closely with the Sabah Law Society (SLS) in developing the ADR landscape in Sabah. Given the advantages of mediation, she expects that more disputes will be settled through this pathway.
The pioneering professional mediator also dwelled on AMC’s initiative to spearhead the recent signing of the Memorandum of Understanding (MOU) on Alliance for Mediation Standards with partner centres in four continents, namely South America, Europe, Asia and Africa.
Since 2000, Australian-trained Hadikusumo has been an Advocate and Solicitor of the High Court of Sabah and Sarawak, in the Supreme Court of New South Wales (Australia) and the High Court of Malaya. A Fellow of the Academy at the Centre of American and International Law in Texas, she also serves as one of the mediation examiners for the Part B Exams (Admission Exams for Advocates and Solicitors) in Singapore. Currently, she sits on the Board of Directors for the Singapore International Mediation Institute (Simi).
Below is the interview:
DE: You are known to be passionate about alternative dispute resolution (ADR) and mediation.
Hadikusumo: Mediation is a subject close to my heart and has been for more than a decade now. We are really fortunate to experience its new emergence on a wider global stage now, after the signing of the Singapore Convention on the Enforceability of Mediated Settlements (“the Singapore Convention”) back in 2019. But in reality, it has existed in different forms across cultures and generations; from the commercial arena to courts, to cross-border settings and within a community framework. What we are now seeing is the professionalisation of a practice that has been steadily growing in the last 15 years. Closer to home, my dream is to see community mediation flourish in Sabah so that it can improve access to justice for many in rural or underserved communities.
DE: What makes mediation an ideal tool for dispute resolution?
Hadikusumo: Imagine being able to have your dispute resolved at a fraction of the time and cost it would otherwise take to go through the traditional dispute resolution route? Mediation makes this possible. It also increases the possibility of preserving relationships whether business or familial in nature. This is because it is about the parties crafting a solution they can both live with, instead of having a third party make a decision for them. The parties are led through the process by a trained Mediator, and it is a more consultative way of managing disputes. At the Asia Mediation Centre (AMC), we help make this happen through education, accreditation, and the provision of mediation services. We also provide consultation for organisations looking to develop an in-house dispute resolution process such as in HR or community relations.
DE: Does this mean that there is no more use for traditional methods of conflict resolution like litigation or arbitration?
Hadikusumo: Not at all. There will always be room for different types of conflict resolution methods. Not every case can be mediated, and in the same way, not every case should be litigated when there are other alternatives. Litigation and arbitration tend to be very expensive, time-consuming and stressful for the parties. Above all, the outcome is not within the parties’ control. Mediation takes only one to two days, and can be undertaken at any stage of the dispute, even when the parties are already in court. Parties can request that their lawyers explore mediation and push the pause button pending the outcome. If there is a settlement, that can be registered as an award or judgment. If there is no settlement, and that is quite rare in my experience, then parties can choose to resume their battle in the courts or in arbitration. But at least there is now an additional option to explore.
DE: You are a strong advocate for Sabah to be part of the mediation movement.
Hadikusumo: Yes, I strongly believe that not only should Sabah be part of the movement to adopt mediation; Sabah can lead in this area as a standard bearer and contribute internationally as a global thought-partner. To this end, AMC works closely with the Sabah Law Society (SLS) to ensure that we forge ahead in this new era of dispute resolution. We are proud to support SLS in its effort to promote the growth and development of mediation in Sabah.
DE: So how did AMC come about? And what’s the dream?
Hadikusumo: AMC aims to provide world-class conflict management and consulting services to private, public and non-profit entities in the region and beyond.
I started AMC upon my return to Kota Kinabalu in 2019 just a few months before lockdown. But this centre was the culmination of many years of hard work in the area of mediation. While working as regional counsel in Singapore the last 12 years, I was also actively mediating, teaching mediation and providing support to institutions globally in the area of ADR. I remember travelling to Fiji, Florence, Sydney, Taipei, Vienna, Hong Kong, New York and many other countries doing this work, but never once had I taught a class in my own home-state. The turning point came when the UNCITRAL negotiations eventually led to the birth of the Singapore Convention signed in August 2019. I was seated in the audience at the signing ceremony and was thrilled to watch Malaysia sign the treaty. It occurred to me then, that this was a wonderful opportunity to support my own country in this new area of growth. And it was timely; as soon as I came back to Sabah, I had the opportunity to partner with SLS in doing exactly that. And by 2020, we were able to train and accredit many mediators in our state.
DE: What has the AMC achieved so far?
Hadikusumo: AMC is only 14 months old, and in 14 months, through a global pandemic, we managed to train two batches of accredited mediators for Sabah in time for COVID-19 related disputes. We have also set up the region’s first Mobile Mediation Unit to provide service to those living in rural communities. We set up an online dispute resolution platform to support a fully contactless process. Last but not least, we have signed a 4-continent MOU that is expected to grow in the months ahead, leading to harmonised and internationally recognised standards for mediation.
DE: Yes, about the MOU. You mooted the idea of getting the AMC to initiate the international MOU on the Alliance for Mediation Standards. What prompted you to do it?
Hadikusumo: At present, there are no formal multi-party collaborative instruments of this nature in East Malaysia between centres across four continents. With this MOU, we hope to witness greater cooperation between the member dispute resolution centres as well as increased opportunities for co-mediation between mediators in China, Sabah, Singapore, Europe, South America and Africa.
I have always believed that Sabah has the potential to lead in new initiatives and pioneer ground-breaking innovation in every field. In my case, I hope to see us grow into an industry leader in the field of mediation so that we are able to not only have a seat at the table but also be able to contribute as global thought-partners. While we can try to live the creed “Sabah for Sabahans”, we should dare to dream bigger and go beyond that into “Sabahans for the Global Community.” I can name many Sabahans who have made an impact beyond our shores; the artist Hong Yi is one of them. So we do have this potential and we must believe in it and take ownership. I intend that we should do this in the area of mediation.
DE: Principally, what does this MOU represent and how does it work?
Hadikusumo: This MOU is about standards, flexibility and investor confidence. By harmonising standards across international bodies, we are ensuring that only truly qualified mediators can practice their trade so this ensures end-user protection. By implementing cross-recognition, we increase the places in which our AMC qualified mediators may practice, since their recognition is now formally recognised in all our partner centres and this increases flexibility for them and grows the industry. This also contributes to investor confidence because now they have multiple viable avenues for dispute resolution should they encounter difficulties. With the aid of technology, an investor in China facing a dispute with a Sabahan party, may choose mediation within Sabah, while having the option of having Singapore or China-based co-mediators participating in the process via video conference capabilities. The same example would apply for an investor from Malaysia who is in dispute with a Singapore party within China. Above all, this MOU recognises the spirit of collaboration already present in these countries and continues the trend whilst maintaining global standards in the sphere of mediation.
DE: You mentioned that personally, the MOU represents friendship. Can you elaborate?
Hadikusumo: This year, 2021, is my tenth-year anniversary as a trainer and examiner in mediation. Back in 2011, when I started teaching this subject in the Singapore Mediation Centre, I was privileged to work with Professor Dr Joel Lee (Chairman of the Singapore International Mediation Institute or SIMI) and Mr Marcus Lim (CEO of Simi) as well as others like him who are eminent thought-leaders in the field. We continued to work together, Joel, Marcus and myself on the board of the Simi. Throughout the years, I got to know various eminent professionals in mediation. And so these friendships, forged over a common mission and nurtured in trust, led to this MOU which links up centres across China, Hong Kong, Singapore, Brazil, Portugal, France, Angola, Mozambique and Guinea-Bissau. And I fully expect to see more countries joining as I am in negotiations with many of them at the moment.
DE: What are your hopes for now?
Hadikusumo: I sincerely hope that as these friendships continue to evolve over time, we will see greater collaboration come about. Although this past year will surely be remembered as one of great change and disruption, I am grateful that in the midst of all this, we have the opportunity to celebrate new beginnings.
Josephine Hadikusumo
Flashback to April 28, 2021: State Minister of Finance II Datuk Seri Masidi Manjun (second left) officiated at the 4-Continent MOU on the Alliance for Mediation Standards as Founder cum Director of the AMC, Josephine Hadikusumo (centre) signed the international document with global partners representing centres in China, Singapore, France, Portugal, Brazil, Angola, Mozambique and Guinea-Bissau (via live telecast). The MOU signing ceremony was witnessed by the Consul-General of the People’s Republic of China in Kota Kinabalu, His Excellency Liang Caide (second right), former Chief Justice of Sabah and Sarawak, Tan Sri David Wong (left) and President of the Sabah-China Chamber of Commerce (SCCC), Datuk Frankie Liew (right).
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