Travel Reference
In-Depth Information
the future conduct of the action to ensure its just,
expeditious and economical disposal. The PD is in
complete consonance with the procedural reforms
in the mechanics of modern civil litigation. Never-
theless, the National Consumer Complaints Cen-
tre (NCCC) is also playing an increasing important
role in the dispute between the holidaymakers and
holiday providers.
the petition is being initiated by the holidaymaker,
the travel operator has to go through the hearing
at the TCC. Though ADR is statutorily permissi-
ble in the TCC, its level of implementation can be
questioned as there are occasions where judgments
are made by the president of tribunal rather than
by a discourse between the holidaymakers and
travel operators. The travel operator cannot deny
the right of the holidaymaker to claim for compen-
sation at the TCC and is not allowed to challenge
the TCC as the rightful forum and is not allowed to
opt for the court as the forum to hear the case. The
finality of the president's award in occasions where
the disputants have not reached a settlement is one
of the aspects which may be of concern; both to
the parties in dispute, i.e. the travel operator and
consumer. Alternatively, administrative ADR
under the purview of National Consumer Com-
plaints Centre (NCCC) does not have the power to
compel the disputants to reach to any settlement.
2 LEGAL REPRESENTATION
Since TCC aims at providing justice to holiday-
makers at a very limited cost, i.e. RM 5 as the
application cost and in a speedy manner, TCC
does not permit any party to be represented by a
lawyer (section 108 Consumer Protection Act 1999
and Instructions to claimant and respondent in
Form 1, TCC Regulations). Consequently, princi-
ples of law are not put forward by parties to TCC.
Therefore, it depends on the presiding President of
TCC whether to highlight the relevant principles
of law to the travel operator and holidaymakers or
otherwise. It is observed that if the President of
TCC is not well-versed in the area of claim govern-
ing the dispute before him (Safei & Chua Abdul-
lah, 2013), such area of law will be left uncovered
in the hearing.
On legal representation, it may appear that the
travel operator may be on a better position com-
pared to the holidaymakers because even though
section 108 (2) of the Consumer Protection Act
1999 expressly prohibits legal representation in
the hearing of TCC, the travel operator can have
its full-time paid employee who has a legal back-
ground to represent his case by virtue of section
108 (3)(a) of the Consumer Protection Act 1999
(Amin & Abu Bakar, 2010). Due to the fact that
in TCC, the holidaymakers and holiday providers
cannot be represented, it is seen that settlement
through ADR in TCC sometimes do not give
force to the values embodied in authoritative texts
such as the statutes, since the parties often are not
able to argue the legal principles and the spirit of
the law. However, in court-led mediation, the dis-
putants' lawyers are allowed to participate in the
mediation process, as will be discussed further in
this paper.
4
APPLICATION OF FACILITATIVE AND
EVALUATIVE MEDIATION
Generally, the president in TCC indirectly adopts
the facilitative mediation approach when in prac-
tice, many presidents during the introduction of
the hearing stage, enquires the holidaymakers
and travel operators as to whether they had dis-
cussed the disputed matter and whether they had
tried attempted to resolve the disputes. Facilitative
mediation is obvious as if the answer is in nega-
tive, the president would persuade and sometimes
request the holidaymakers and travel operators
to try to resolve the matter at the waiting corner.
The travel operators and holiday makers are given
assistance to arrive at their own conclusions. The
President helps the holidaymakers and travel oper-
ators to explore the options. The disputants may
find one of the options appealing to them. Since
the presidents of TCC had opportunity to analy-
ses cases before the hearing of the cases in TCC,
it is reasonable to assume that presidents of TCC
tend to adopt facilitative mediation in travel dis-
putes which are complicated. However, the differ-
ence between ADR in TCC and court is that while
the court applies facilitative mediation, the travel
operators and holidaymakers and their lawyers
would participate actively in the discussion and
negotiation.
In court-led mediation, lawyers and travel dis-
putants do not make submissions before the medi-
ator. Unlike the TCC, in court-led mediation, the
disputants, with the assistance of their lawyers
would offer options or counter-proposals to per-
suade each other, while the facilitative mediator
offers his expertise and experience in the discussion
3
LEGAL STATUS OF ADR FORUM
In the Malaysian courts, where the mediation Judge
is unable to bring about an amicable settlement, the
case is reverted to the hearing Judge for disposal.
This is not the case for the TCC. In TCC, The
claim of the travel dispute can only be initiated by
the holidaymaker and not the travel operator. Once
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