By Karen Bong
KUCHING, May 6: With an estimated 20,000 civil cases pending before the High Court in Peninsular Malaysia alone — a volume so overwhelming it could take up to 10 years to clear if every case proceeds to trial — the Malaysian judiciary is sounding the alarm on the urgent need to intensify the use of court-annexed mediation.
Malaysia Court of Appeal judge Dato Lim Chong Fong emphasised this during a special talk titled “Court-Annexed Mediation: Practice, Procedure and Challenges” held today at the Sarawak Youth and Sports Complex’s auditorium in conjunction with the Borneo ADR Week 2025.
The event, hosted by the Sarawak Institute of Arbitration and Dispute Resolution (SIADR), aims to promote effective, efficient, and accessible dispute resolution mechanisms in Sarawak and across Malaysia.
Lim underscored the staggering strain facing the judicial system, noting that with just around 100 High Court civil judges in Peninsular Malaysia, the system is buckling under the weight of growing litigation.
“There is no recession as far as caseload is in the courts. Currently, as far as I know, in Peninsular Malaysia, we have about 20,000 cases in the high court at this point, this does not even include the appellate courts. So, you can imagine the number of cases. If every case has to go to trial or hearing, how long is it going to take?” he posed.
“And at the same time, we have KPIs (key performance index) given to us. We are expected to dispose of trial cases within 12 months and non-trial matters within six months. But with 20,000 cases and there are only probably 100 civil judges… and this is high court, I’m not even referring to the subordinate courts. You can imagine the workload that we have.
“We have to find other ways to try to reduce the number of cases, unless of course appointing more and more judges. But that doesn’t seem very practicable at this point,” he explained.
Citing Practice Direction No. 2 of 2022 and referencing the address by Chief Justice (CJ) Tun Tengku Maimun Tuan Mat at the Opening of the Legal Year 2024, Lim emphasised that mediation — particularly court-annexed mediation — must now become a judicial imperative rather than an optional route.
“The CJ was clear. All judges and case managers must consider why each case should not be mediated. Unless the matter is absolutely unsuitable, mediation must be attempted. Judges must also step in as mediators where possible, as they are best positioned to guide disputing parties toward amicable resolution,” he said.
Lim revealed that the judiciary is also exploring pre-action mediation, where disputes are addressed before being formally filed in court. A court-annexed mediation committee has been tasked with studying this approach, including proposing legislative amendments to enable its implementation to try to resolve the disputes in the country.
He distinguished between the two models: pre-action mediation aims to resolve disputes before a case reaches the court, while court-annexed mediation takes place after a suit is filed, under judicial guidance.
Notably, the Mediation Act 2012 applies primarily to non-court-based mediations, while court-annexed mediation operates under Rules of Court 2012 provisions such as Order 34 Rule 2 and Rules 1A and 1B, along with the Chief Justice’s Practice Direction.
“First, the objective of mediation is to encourage parties to arrive at an amicable settlement without going through or completing a trial or appeal. The benefit of settlement by way of mediation is that it is accepted by the parties, expeditious and it is final, if not also cost-effective,” said Lim.
Despite the framework, uptake remains low. Lim revealed that only 8 per cent of cases in Peninsular Malaysia were referred to mediation last year. He attributed this to judicial reluctance, limited mediator availability, and performance pressures related to case disposal KPIs.
“We are training and urging judges to refer more cases, but it’s not easy. We also face a shortage of qualified mediators and are looking into involving retired judges to expand the pool,” he said.
He added that retired judges from Selangor will soon assist the courts as mediators—on a pro bono basis—to further expand the system’s capacity.
Efforts to embed mediation are expanding beyond the High Court. Lim disclosed that amendments to allow mediation at the Court of Appeal level have been approved and are awaiting enforcement, with mediation already being piloted in select cases, including one from the Federal Court.
“It’s not only the High Court, even in the Court of Appeal, we are inundated. Again, for your info, as of today, we have something like near 5,000 cases in the Court of Appeal at this juncture. So again, it’s a very huge number,” he said.
Lim concluded by reaffirming mediation’s core strengths — faster resolution, cost-effectiveness, and finality — and called for the legal community, including lawyers, to embrace mediation as a frontline dispute resolution strategy.
Stressing that there is no recession when it comes to case numbers, Lim noted that the only path forward is through systemic mediation, or the courts will collapse under the weight of delay. — DayakDaily
