Tag Archives: mediation

When to mediate

As mediation becomes a prominent feature in the Singapore legal and commercial landscape, one common question that arises is when, and under what circumstances, should one consider mediation?

Timing is everything

“Observe due measure, for right timing is in all things the most important factor,” the Greek poet Hesiod wisely advises us. Deciding on the right time to mediate then, depends on several things, including the context surrounding the dispute, the type of dispute and the parties involved. In general, a dispute stands a better of chance of being resolved when referred to mediation at an early stage. Take relational cases for example. If parties go to mediation at too late a stage, there may have been too much acrimony and bad faith generated to achieve a peaceful settlement. The parties might also be reluctant to settle because of the legal costs that have already been incurred. In other words, they have invested too much time, emotion and resources and have the mindset to “go for broke”. If the dispute has already gone to court, then sometimes mediating at too early a stage could be more bane than boon. For example, the parties may need time to cool-off before they are in the right frame of mind to negotiate again. Waiting six months after court proceedings may be a wise move in this case.

Court-based vs private mediation

When to mediate also depends on the type of dispute in question. In Singapore, where the mediation movement is largely institutionalised, the two main categories of mediation practised here are court-based mediation and private mediation. The Singapore Academy of Law explains in an article that “court-based mediation is mediation that takes place in the courts after parties have commenced litigation proceedings. This type of mediation is mainly carried out by the Subordinate Courts and is coordinated by the e@dr centre, also known as the Primary Dispute Resolution Centre (PDRC).” Private mediation in Singapore is carried out by agencies like the Singapore Mediation Centre and private practices like HMG. The State Courts of Singapore offer the following guidance to help the public decide when it is best to mediate (vs litigate). They say that mediation may be effective in the following situations:
  • The parties know each other and want to save or maintain their relationship.
  • There is a need to reach a quick end to the dispute.
  • The parties want to avoid publicity or to maintain confidentiality.
  • The law does not provide a solution that meets the parties' real interest. For instance, while a suit may appear to be for breach of contract, there may be communication issues amongst the disputing party that have to be resolved. In another illustration, party may file a suit for defamation, but he or she may really be seeking an apology which is not a normal legal remedy given by the courts.
  • The parties want to save legal costs.
The Courts advise that mediation may not be appropriate for certain disputes, for instance, where:
  • There is a need to establish a legal precedent in court. For instance, a company may need a court decision concerning how to interpret a clause in its standard contract.
  • The key representatives or decision makers are not willing to participate in mediation.
  • One or more parties may not be attempting mediation in good faith (e.g. to gather more information without any intention of exploring a settlement).
  • One or more parties wants public attention to be drawn to the dispute.
While there is no hard and fast rule as to when to mediate, the efforts of the judiciary have shaped a culture that strives for early dispute resolution. Whether it is ad hoc mediation for community and relational disputes, or a formalised tool to manage complex commercial cases, most practitioners would agree that mediation is effective and highly successful when used in the early stages of the judicial process. Dora Yip, HMG Research Associate    

War and Peace: Five Ways Mediators Reframe Conflict During a Negotiation

When disputes occur, it is common for some parties to adopt a more aggressive stance than others. This could manifest in various ways, including being confrontational and using attacking phrases. When faced with an impasse, the disputant might fallback on the language of war, using phrases like “I can’t retreat from my position” or “he keeps attacking what I said”, words designed to escalate conflict rather than bridge it. When an inherent aggression is tinged with a sense of hubris, the outcome can be catastrophic. Consider a recent case involving two executive committee members of a prominent association who filed law suits against each other in the high court. When the presiding Judge instructed both parties to go to mediation, one side decided not to, thinking they had a sure-win case. The side that rejected mediation eventually lost the case and is now suing their lawyers. Their false arrogance resulted in a substantial loss and huge legal fees. Experienced mediators are trained to help all parties - even those predisposed to aggression - to reframe conflicts during a negotiation. Here are five approaches they may use to help their clients: 1. Look at the issue through different lenses “Do not judge a man until you've walked two moons in his moccasins.” This Native American proverb reminds us to refrain from judging another because we may not be fully aware of what has shaped their opinions, values and identity. Mediators may use techniques like having respective parties imagine the other’s perspective, or using narrative forums and listening circles to help disputants understand the dynamics behind the conflict. Most importantly, they want to help the parties involved see that other perspectives may be just as valid and credible. 2. Reducing tension Mediators seek to reduce tension and de-escalate hostility between disputants by creating forums framed around a set of limited objectives that encourage all parties to communicate openly. This helps to mitigate the risk of the cycle of conflict escalation, which often happens when disputants come into the session with incompatible frames. 3. Finding common ground Mediators may also help disputants establish common ground as a basis for agreement. Using visioning exercises and other explorative processes, mediators guide the different parties to identify things they agree on, whether it be what they want the desired future to be, to actions that all parties can agree to. This helps shift the focus from the short-term perspective to a longer-term one. 4. Question what constitutes loss and gain “In the middle of every difficulty lies opportunity." Einstein’s wisdom resonates in a conflict setting, where mediators will help disputants identify the possible benefits that could be gained from resolving the conflict. Mediators will also seek to help the parties involved reframe their perceptions of loss into gains. 5. Having options is a good thing! Mediators also help their clients see the value of having multiple options. By making options and alternatives desirable to the various parties involved in a dispute, mediators help disputants break out of a single-solution mindset (i.e. an “I benefit/you lose” mindset or vice versa) and be open to multiple outcomes with different degrees of loss and gain, both tangible and intangible. Dora Yip, HMG Research Associate

Why You Should Insist on a Mediation Clause in Contracts

When a dispute occurs, choosing to mediate as a first step makes good business and financial sense. Litigation and arbitration can be both expensive and time-consuming, not to mention stressful, what with the worry that comes with long, drawn-out court battles in the former and the finality and legally-binding nature of the latter. In what is a growing trend the world over, many organisations and individuals now insist on including a mediation clause in contracts, one that calls for mediation as the first step in settling disputes. Here are three reasons why:
  1. Most businesses and people want to resolve disputes as quickly and as cost-effectively as possible. It is in all parties’ interests to do so. Mediation has a remarkable track record - between a 60 to 75% settlement rate - especially when used at an appropriate juncture during the dispute.
  2. Mediation allows each party to tell their side of the story. In our experience, many disputes escalate because the different parties want their positions to be heard and validated. Mediation encourages empathy and understanding, something which more adversarial processes do not.
  3. A mediation clause pre-empts conflict and protects all parties from acting in the “heat of the moment”. If the contract does not have a mediation clause, it may be a challenge convincing the parties to use mediation when they are in a middle of a dispute. Think of the mediation clause as an active reminder to always pursue a peaceful resolution to conflict before embarking on a more adversarial approach.
An example of a mediation clause that can be inserted into a commercial contract is provided below: “If a dispute, controversy or claim arises out of or relates to this contract, or breach, termination or invalidity thereof, and if such dispute, controversy or claim cannot be settled and resolved through negotiation, the parties agree first to try in good faith to settle such dispute, controversy or claim through mediation, under the rules of [to insert rules governing mediation1]. The mediator shall be mutually agreed to by the parties, failing such agreement, the mediator shall be appointed by HMG.” While most practitioners agree that every lawyer-drafted contract should have some form of a dispute resolution clause, there is still a widespread variance as to the mode of dispute resolution to employ. Mediation is a sensible first-step, and we are likely to see the growing trend of its inclusion in contracts both locally and globally. Do contact us to find out more about how mediation can help you and your organisation minimise conflict. Dora Yip, HMG Research Associate 1. Refer to paragraph 3.6.7