The Legal Realism Roots of Malaysia’s Covid 19 Mediation Initiative and Covid 19 Mediate First Campaign 2021

It took 1.5 years from conception, adoption and implementation to see the launch of Malaysia’s PMC-19 Mediate First Campaign in November 2021.

When the Covid 19 crisis first broke in early 2020, it was immediately apparent that contracts were disrupted without the fault of the parties, and the far reaching impact and consequences of the pandemic and lockdowns were beyond the expectations and imagination of business, contractual parties and governments.

In my capacity as Co Chair of International Professional Services Committee of the Malaysian Bar Council 2020, we lobbied MITI and other government agencies for a Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (Covid-19) Act 2020.

In making the proposal, we brought in Shanti Abraham and the Bar Council’s Mediation Commitee to work on using mediation as a solution for Covid 19 contractual disputes.

The idea of using mediation, and the roots of a world first Malaysia Covid 19 Mediation Initiative, PMC-19 (Malaysia Covid 19 Mediation Centre) and the Mediate First Campaign, were inspired by Marc Galanter’s Theory of Legal Realism 1981:

“Most disputes including many that under current rules could be brought to a court, are resolved through self avoidance, self-help, and the like…. in many instances the participants can devise more satisfactory solutions to their disputes than can professionals constrained to apply general rules on the basis of limited knowledge of the dispute”.

Lawyers, adjudicators, mediators, arbitrators and judges are all third party professionals trying to devise less satisfactory solutions than what the parties themselves (who are the best equipped to do so) can resolve and agree on.

And among all the third party resolvers, mediators are the best positioned to facilitate conversations and explore potential solutions between the disputants. This is especially so in Covid 19 disputes, where the parties are not at fault and need to cooperate and work together to get out of the crisis.

An offshoot, Facilitative Contract Negotiators (similar in many ways to corporate mediators) have now risen to the challenge to help disputing parties adjust and reallocate the losses and responsibilities arising from the pandemic disrupted contracts which are ill prepared and ill equipped to resolve such disputes.

On 18 November 2021, the Minister in charge of Parliament and Law – Dato Sri Dr Haji Wan Junaidi Bin Tuanku Jaafar, launched the Mediate First Pledge by Law Firms Campaign in Malaysia.

The first group of 50 Mediate First Law Firms participated in the event. JLPW is among the first to volunteer, as the mediate first pledges were drafted by me. More Mediate First Pledge Campaigns by companies and business associations will follow.

In a world facing existential threats from the Covid 19 pandemic and Climate Change, the ideas of Legal Realism and Pragmatism, and the interdisciplinary field of Law, Economics and Governance, will find more applications in fields as wide as Sustainable Development Goals and Climate Change, ESG and CSR, Green Belt and Road, supply chain friend shoring, multilateral cooperation, investor state dispute resolution, investment treaties and geopolitics.

Contact us

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B-11-8, Level11, Megan Avenue II, Jalan Yap Kwan Seng, 50450 Kuala Lumpur, Malaysia

Phone : (603) 2203 3388

Fax : (603) 2203 3399

Website :

www.jlpw.com.my

www.jlpw.com.my/needlawyer

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