Do not underestimate the power of Mediation

 

Do not underestimate the power of Mediation!

A first choice for dispute resolution – Mediation

Written by Rebecca Tan Lay Bay PBM (LLM)

 

In our Kampong days, whenever the villagers had any disputes with one another, the Kampong Chief would step forward to help mediate to resolve their disputes. The Kampong Chief is usually a reputable and respectable person in the villages. He acts as a mediator who helps the disputing parties settle their disputes to the best of their abilities. It was not a common practice for a villager to sue another in court in the Kampong days even though they could do so to address their disputes. It was common for villagers to “give face” to their Kampong Chief and try their best to settle their disputes amicably.

As Singapore progresses and urbanizes, it is common to have litigations reported in the newspapers or social media that make us wonder why the disputing parties were doing that to one another. It is not uncommon to see company directors, family members, and related or unrelated parties suing one another in courts and the culture of doing so has not changed significantly even though much education has been provided on the benefit of other dispute resolution such as Mediation.

Many company directors refused to adopt Mediation as their first choice for resolving disputes even though they knew that it could save them time, money, and relationships compared to litigation. They may likely tell you that they have a strong case, and they want to teach the other party a lesson via litigation, regardless of how much they need to spend in litigation or spoil their relationship moving forward. They are reluctant to engage in mediation which requires them to meet the other disputing parties face to face and to negotiate.  

Dispute cases can result in a few years of court proceedings and accumulate huge legal costs and much time and effort are involved for all parties even though the case can possibly be resolved within a few days by Mediation. In a recent case reported in the newspapers, the disputing parties accumulated huge legal costs after years of litigation proceedings and finally settled in mediation. The disputing parties are now scratching their heads to settle their huge legal fees.

Some disputing parties have the wrong mindset that Mediation is not meant for cases involving multi-million dollars, this was proven wrong as there were already successful cases of mediation for disputes involving huge amounts of money, including local and cross-border cases.

Recently I successfully mediated a dispute case involving two middle-aged siblings. Though they were hostile to each other initially as one already sued the other in court hoping to get what he wanted, both were still open to mediation and willing to sit down to mediate with my facilitation as a mediator. After my initial phone conversations with them separately to understand their case, I then conducted a mediation service with them in less than a day, and both came to a settlement agreement amicably. I helped draft a mediated settlement agreement which they agreed to and signed, they then mutually agreed and applied to the court to record the mediated settlement agreement as an order of the court. Under Section 12(5) of the Mediation Act 2017, this mediated settlement agreement that is recorded under this section as an order of the court may be enforced in the same manner as a judgment given or an order made by a court. This saved them much grief and hurt feelings in the long run and saved their relationship as siblings. On the other hand, if both refused to adopt mediation to resolve their disputes, they might still be suing each other in court with heavy hearts and much legal cost involved, further tarnishing their relationship as siblings. Rather than having a winner-and-loser outcome in litigation, it is better to have a win-win outcome as in Mediation. There is a common saying, “Won a lawsuit, lost the relationship.” In contrast, there is no loser in a Mediation, all are settled with what the disputing parties agreed on in the mediation process.

Why are disputing parties still not seeing the benefit of Mediation?

When parties are in dispute, the first question they would normally ask is how they can win their case against the other party. Often, they want to avenge their anger towards the other party via litigation and do not bother about the possible bad consequences of litigation. Is it because there is not enough education or information shared on the benefits of Mediation or possibly, they do not trust Mediation even though they have the option to do so? The reasons can vary; however, promoting mediation and continuing to educate the public on the benefits of mediation is crucial.

As reported in the Straits Times on 28 March 2023 titled “Mediation to be mandatory for noise disputes between neighbours” the Ministry is looking at making Mediation mandatory for noise disputes between neighbours. The Second Minister for Law Mr Edwin Tong highlighted at the debate on the Law Ministry’s budget that “The aim of making mediation mandatory is to encourage take-up at an early stage to increase the chances of such disputes being resolved amicably,” he said. This reflects the ministry’s determination to empower mediation in the community.

I would now share more about Mediation and hopefully, it can help to enlighten more disputing parties to think thrice before resorting to litigation and make mediation their first choice to resolve their disputes. If they can choose mediation as their first choice to resolve disputes, then the earth will be a more peaceful and happier place to live in. My strong belief is: “Do not underestimate the power of Mediation and overestimate the benefit of litigation.”

(I) What is Mediation?

Mediation is a structured, interactive process whereby an impartial third party i.e. a Mediator facilitates and assists disputing parties in resolving conflict, and the parties voluntarily negotiate and reach a mutually acceptable settlement in the disputes.

(II) Why Mediation?

Mediation is more informal and relaxed than that of litigation. All participants are encouraged to actively participate in the mediation process. Unlike litigation, Mediation saves you time and money. It gives disputing parties opportunities to listen to the other party’s issues and concerns from their perspective.

Mediation is private and confidential, as stated in Section 9(1) of the Mediation Act 2017 all mediation communication relating to mediation must not be disclosed to any third party to the mediation, subject to the exceptions stated in Sections 9(2) and (3) of the Mediation Act 2017.

In Section 10 of the Mediation Act 2017, mediation communication is not to be admitted in evidence in any court, arbitral, or disciplinary proceedings i.e. the discussions between parties during a mediation session are without prejudice. If the case proceeds to a trial, whatever is said during mediation cannot be used as evidence against the disputing parties, subject to the except with the leave of a court or an arbitral tribunal under Section 11 of the Mediation Act 2017.  

(III) Who is a Mediator?

A mediator does not decide for the disputing parties, his/her role is to facilitate the mediation process and assist disputing parties in negotiating to explore options and reach a settlement.

Normally, a mediator adopts the Facilitative Mediation Approach. Facilitative Mediation combines an eliciting–facilitating style of mediator intervention with an integrative approach to negotiating by the parties. Facilitative Mediation is an interest-based negotiation between the parties. The mediator mainly facilitates the mediation and does not give advice to the parties on the merits of the dispute or provide them with legal information.

The mediator facilitates the mediation for parties to reveal their issues and interests in relation to the conflict and let the party hear the other party’s issues and interests from the other party’s perspective.

Facilitative mediation gives parties greater satisfaction when they can co-create the outcome and retain a good relationship moving forward.

 

(IV) When do you Mediate?

The disputing parties must agree to mediate and have the authority to make decisions when they come to a Mediated Settlement Agreement.

(V) Where to Mediate?

It can be at the Client’s or the Mediator’s suggested venue.

(VI) How to Mediate?

The disputing parties shall both agree to set aside their time for Mediation.

A mediator may arrange for phone calls or online meetings with parties separately prior to the first joint mediation meeting. This is to allow the mediator to have a better understanding of the dynamics among the parties and the issues involved. On a case-by-case basis, the mediator may require the disputing parties to fill up a Mediation Memorandum to have a better understanding of their cases beforehand.

In the Mediation Memorandum, the questions are as follows:

(1) What is the dispute about?

The mediator wants to know what motivated parties to come to mediation and what is important for them to happen in this mediation.

(2) Who is involved?
The mediator wants to know who is involved in the disputes, who wants to be involved in this mediation, and who has the interest or power to influence the implementation of the successful mediated settlement agreement.   

(3) How would you describe your relationship/communication with the other party right now?

The mediator wants to know their dynamics, how they saw things, and whether they were able to communicate with one another.  

 

 

(4) What have you done so far to sort it out?

The mediator wants to know whether the parties have engaged in settlement negotiations previously, whether there were any concrete offers made, and on what basis those offers were made.

(5) Where have the negotiations got stuck? What do you think is preventing you from reaching a reasonable agreement?  

The mediator wants to know what was preventing the parties from reaching an agreement. What were the obstacles and what needed to be overcome so that the mediator had some ideas of what might happen in the Mediation.

(6) What needs to be done?

The mediator would ask the parties what they think needs to happen to be able to move forward at mediation. What they think the other party needed to happen to be able to move forward.

(7) Whether any legal advice had been sought and what was the essence of the legal advice?

The mediator wants to know whether they have received any legal advice and what advice was given to them.

(8) What are the strengths and weaknesses of your legal case? 

The mediator wants to know whether the disputing parties are aware of their legal rights.

(9) Please calculate the costs of this conflict for you to date and into the future.

This is to allow the mediator to have some ideas on the cost involved to date and into the future.

(10) If you don’t reach a settlement today, what will happen in the best case, worst case, and realistically?

This is to allow the mediator to know whether the parties are aware of other possible options and outcomes.

(11) What else do you think the mediator should know to help him/her work more productively with all parties participating in the mediation? 

This is to capture any other issues that parties might want to share with their mediator.

(VII) What possible cultural or interpersonal dynamics may emerge in mediation?

People from different countries and cultures have different comfort zones in terms of personal space, direct eye contact, and listening posture. There might be high levels of emotion and value conflicts in a mediation. There may be power imbalances for the disputing parties. The mediator will need to have this information beforehand so that he/she is better prepared before the mediation.

(VIII) How might the mediator address this?

The mediator would take note of the parties’ dynamics and be calm, positive, focused, and impartial throughout the mediation process. The mediator would inform parties of the ground rules such as not to interrupt while the other party is talking and not to use abusive language throughout the mediation process.

The mediator would actively listen to their issues, facilitate the mediation to find out the common interests and differences between the disputing parties, identify the issues that need to be talked through, let the party speak out their interests, and hear the issues from the other party’s perspective. The mediator would facilitate the negotiation so that the parties co-create their solutions, explore, and generate options to resolve their disputes, and reach a settlement at the end of the mediation.

(IX) Challenges for the parties reaching a mediated settlement agreement

One party may already sue the other party in court and there may be lawyers involved for one/both disputing parties. There may be disadvantages of lawyers having a role in the mediation as some lawyers might prevent the legal merits of the cases from getting in the way of a settlement. There might be undue focus on legal issues, legal rights, and precedent and shift away from a discussion of underlying interests. Parties may refuse to reach a mediated settlement agreement as a result. Lawyers should agree to adopt mediation as the first choice to resolve their client’s disputes in the best interests of their clients.

(X) What type of interventions for the mediator to address these

The mediator would conduct separate private meetings with parties and their lawyers before and during mediation to hear their issues and interests. The mediator would use active listening and reframing skills to facilitate interest-based negotiations constructively in the mediation so that parties co-create their solutions in resolving their disputes.

Notice that many skills are required of the Mediator besides being patient and a good listener. Do trust the mediator who is accredited and trained to facilitate a dispute and believe that you can settle a dispute in a faster and cost-saving way in mediation compared to litigation. According to the statistics of the Singapore Mediation Centre (SMC) as of 30 November 2018, more than 4000 disputes were referred to the SMC, and about 70% of all disputes referred to SMC reach a full and final settlement. Of which almost 90% were settled within one working day. For a mediation to be possibly conducted, it requires all disputing parties and their lawyers, if any, to believe that mediation is their first option to resolve their disputes, any lack of such trust the courts will still be overwhelmed with individual grievances and become an antagonized place for the disputing parties, and this cannot be the objective of having the Courts in Singapore, more information on Mediation can be found in the Mediation Act 2017.

 

 

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