Principal aim of mediation is achieving a " win-win " result based on common interest
Arb dispute resolution mechanism , they must incorporate into their contract / agreement a suitably worded express provision to this effect — typical standard clauses made available by the AIAC and BICAM in their respective Mediation Rules which can be adopted ( with or without necessary amendments ) by the parties .
In conclusion , it can be said that the difficulty in enforcing a settlement agreement in the face of breaches of the same by a dilatory or non-compliant party is a common problem encountered in practice for mediations undertaken outside the jurisdiction of the courts . This has been , and continues to be , one of the main drawbacks which dissuades many disputants from resorting to mediating their disputes . Other than educating and / or persuading potential non-compliant parties , such as the more “ powerful ” or “ dominant ” ones , to give effect to the principal aim of mediation in achieving a “ winwin ” result which is based on “ common interests ”, there is nothing much which can be done at the moment . Some relief has been proffered by the SCM for cross-border enforcement of settlement agreements of a commercial nature . However , such agreements must fall within the ambit of the SCM and the signatory states , which at the moment are confined to merely 56 countries ( of which only 11 have ratified the SCM and which does not include Malaysia yet ). A novel option of adopting the Med-Arb procedure is available to parties for their adoption as currently being allowed for under the AIAC and BICAM Mediation Rules where there is a possibility of the settlement agreement to be recorded and thereupon enforceable as an arbitration award in the local courts or cross-border in countries which are the signatories to the NYC . Although appearing attractive , it is a hybrid dispute resolution procedure which is inevitably costlier and , timewise , longer . A better solution would be to amend the Mediation Act 2012 to allow for all settlement agreements ( and not only the court-based ones as currently provided for under Section 14 ( 2 )) to be recorded as consent judgements and thereupon enforced by the courts . This would certainly bring the results of mediation to be on par with arbitration and statutory adjudication under CIPAA 2012 ( Act 746 ), thereby making it more attractive to disputants .
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