Towards the development of a mandatory family mediation program in the Malaysian civil legal system: learning from Australia

Submission note: A thesis submitted in total fulfilment of the requirements for the degree of Doctor of Philosophy to the School of Public Health, Faculty of Health Sciences, La Trobe University, Victoria.

Malaysia has had a provision for mandatory family mediation service for Muslims known as Sulh since 2002. No similar service has been provided for the substantial nonMuslim population comprising almost 32 percent of the population. This study explores the need for a non-Muslim mandatory family mediation program for the civil system and discusses possible approaches to such a program. Theoretical considerations of institutional and legal transplantation were used to identify the benefits and limitations of adapting Australia’s model of Family Dispute Resolution (FDR).Using documentary analysis, experiences and lessons from the Australian FDR scheme were identified. Indepth interviews were also conducted with 31 key informants involved in family law and mediation in Malaysia about the desirability and feasibility of adapting the model. Although interviews revealed a significant degree of support for adaptation, many informants felt that the program would not succeed unless it operated as part of the court system. Although Australia’s system is substantially subsidized, many informants were also concerned about the suggestion that any fees be charged for such a service in Malaysia. It was concluded that any adaptation of the FDR model will therefore require modifications. With this in mind, the study proposes a model for developing a mandatory family mediation program for the Malaysian civil system.