Travel Reference
In-Depth Information
and negotiation. The involvement of lawyers is sig-
nificant in the ADR process as they are able to give
their advice to their clients. In an evaluative media-
tion which is also applied in the TCC and court-led
mediation, the mediator evaluates the travel dispu-
tants' position and point of view, the strength and
weakness of the respective parties' case and offer
suggestions to them. The difference is that in TCC,
the President listens to the disputants' arguments
and on the other hand, in court-led mediation,
evaluative mediators would even hear the counsel's
arguments presented for the disputants. However,
in TCC, the President, after hearing the arguments
from both the holiday providers and holidaymak-
ers, makes a binding award, which is final; which
can only be revised in a court. Unlike the TCC, in
court-led mediation, there is no cohesive or coer-
cive power to make any binding decision between
a holiday provider and holidaymaker. The dispu-
tants do not have to accept the mediator's evalua-
tion of the relative merits of their case. Evaluative
mediation gives the holiday providers and holiday-
makers the opportunity to obtain an objective and
unbiased evaluation of the case in the Court of
first instance or at the appellate stage, without the
expense of a hearing of the case or appeal proper.
important to understanding the conflict and facili-
tating resolution. If such information is revealed to
the public, this may be detriment to the good name
of either party or both parties.
6 ADMINISTRATIVE ADR
In some jurisdictions, for example, Japan and
Korea, administrative ADR is used widely to facil-
itate disputants and this is an option which is pos-
sible in the travel industry. One of the advantages
of the administrative ADR is that they can utilize
administrative influence, formally or informally, to
make the ADR process efficient. For example, a
travel operator will appear at the ADR session and
negotiate with the claimant (holidaymaker) faith-
fully, because it wishes to avoid the risk of negative
evaluation by the administrative agency. Under
the umbrella of the administrative agency whose
influence over the companies is strong, ADR may
give the claimant better remedies than those he/
she would be awarded in court. It is also expected
that the agency monitors the implementation of
the promised remedies. For the holidaymakers, the
administrative ADR can be more effective than
court proceedings. For the travel operator, because
of the confidentiality of the process administrative
ADR is more desirable than court proceedings.
In Malaysia, administrative ADR can be illus-
trated by the National Consumer Complaints
Centre (NCCC) which is officially established on
13 July, 2004. The NCCC was initiated jointly by
the Education and Research Association for Con-
sumers (ERA Consumers), Selangor and Wilayah
Persekutuan Consumer Association and the Min-
istry of Domestic Trade and Consumer Affairs.
NCCC functions as a one stop centre to help con-
sumers with their problems and complaints by
ensuring that complaints are forwarded to relevant
authorities and solutions are obtained while also
acting as a go-between consumers and enterprises
in settling disputes. At present, the NCCC is an
option that is used by the holidaymakers to express
their dissatisfaction towards travel agencies. Offic-
ers from NCCC does take the initiative to call up
travel agencies and make visits to travel agencies
to make further discussions with the travel agen-
cies as regards to the complaints received by the
holidaymakers. There are travel agencies who felt
obliged to conform to the recommendations made
by the officers from NCCC as the travel agencies
wish to avoid the risk of negative evaluation by the
administrative agency.
At the same time, administrative ADR can be
beneficial to the Ministry of Domestic Trade and
Consumer Affairs and Ministry of Tourism because
a 'dispute' is full of useful and specific information
5
CONFIDENTIALITY OF INFORMATION
The hearings in TCC are opened to public. Hence,
sometimes trade secrets and business strategies
of travel agencies are being exposed in the TCC.
Unlike the TCC, the court-led mediation assists
in maintaining the status quo of confidentiality
where the disputants who have confidential infor-
mation may wish to disclose it to the mediator but
not to the other side. In maintain the confidenti-
ality of the information; the mediator may enter
into a caucus meeting, in the absence of the other
disputants and legal representative. The media-
tor can use the confidential information to struc-
ture discussion in order to explore or broaden the
scope of the options for settlement. All disclosures,
admissions and communications made in and dur-
ing a mediation session are strictly “without preju-
dice”, by virtue of section 23 of the Evidence Act
1950. Such communications do not form part of
any record. The mediator shall not be compelled to
divulge such records or testify as a witness or con-
sultant in any judicial proceeding, unless all parties
to the Court proceedings and the mediation pro-
ceedings consent to their inclusion in the record or
for any other use. Hence, the concept of confiden-
tiality in the court-led mediation is a unique fea-
ture which would reduce tension between the travel
operators and holidaymakers as sometimes infor-
mation is legally irrelevant and yet exceptionally
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