By Lam Zhen Yu
So you’ve agreed to submit your dispute to mediation, the mediation session has been arranged and is coming up soon. How can you prepare for the mediation session to make it worth your while? Here are 4 simple steps to guide you in your preparation.
1. Know your alternatives
First, you need to consider what professional negotiators term as your BATNA (Best Alternative to a Negotiated Agreement). Put simply, what would you do if the mediation were unsuccessful? Since mediation can be conducted either before or in the course of legal proceedings (e.g. before the Court, an arbitral tribunal, or public tribunal such as the Employment Claims Tribunal), the answer is usually simple: commencing or continuing legal proceedings.
Counting the costs of legal proceedings will help you make an informed decision on what are acceptable settlement terms to you. Below is a (non-exhaustive) list of the key costs involved:
- Financial: A successful party to legal proceedings will usually be awarded “costs”, which would have to be paid by the losing party. However, contrary to popular belief, such costs awarded will rarely, if ever, compensate you for your lawyers’ fees – it is common for costs to be half (or even less) of lawyers’ fees. Further, a successful party may even be required to pay costs to the losing party in certain instances, such as failing to accept a reasonable settlement offer made formally. You should ask your lawyers for an estimate of their fees and third-party costs in anticipated legal proceedings.
- Time: It is often said that time is the most precious commodity. Even if you have lawyers assisting you, participating in legal proceedings requires significant investment of time and energy. For instance, cases before the Court tend to stretch for a year at least for simple matters and can take years before full resolution of the dispute. Settling the dispute at mediation can bring early closure and allow you to focus your time and energy on other matters.
- Emotional: Participating in legal proceedings is often stressful, as you will find yourself worrying about the possibility of losing. Revisiting details of the dispute at multiple stages of legal proceedings can also be distressing if the dispute is personal to you. Particularly, being cross-examined by an experienced lawyer at trial is an unpleasant experience to say the least.
- Risk: Every legal proceeding comes with a certain degree of risk, regardless of the strength of your case. Even if you are successful, it is also possible that you are not granted your full claim. Unfavourable evidence which you were unaware of being adduced, witnesses making devastating concessions, unfavourable developments in the law – these are merely a few examples in a long list of things which can go wrong.
- Reputational: Court proceedings are part of the public record, and basic information relating to the case is readily available. It is very common for businessmen to face difficulty obtaining loans simply because they are defendants to a case in Court with high exposure (regardless of the strength of their defence).
2. Decide what you want
Assessing your BATNA will help you decide the limits of what an acceptable settlement is. For instance, if you have a claim against you, it may be worthwhile to pay a settlement sum which will help to bring closure and peace of mind, even if you feel that you are not liable for the claim. One key feature of a settlement agreement would therefore be for parties to discontinue and/or to refrain from commencing legal proceedings in relation to the dispute.
A key advantage of mediation is that parties can be creative and propose solutions which are non-binary and effectively address parties’ concerns. In contrast, a Court or tribunal is restricted in the rulings that it can make, which largely take the form of upfront monetary compensation.
Below are examples of questions you can ask yourself:
- Can you agree to payment by instalments over time? Bear in mind that if your counterparty is unable to pay and is bankrupted/wound up, you may only receive payment after several years, and the payment may not even be your full claim sum.
- Can you accept an apology by a formal letter or by a social media post?
- Where your counterparty has submitted a complaint against you to the police/regulatory authorities, would it help if he/she submits a letter requesting for investigations against you to be terminated?
3. Consider what your counterparty wants
Similar to Step 2 above, you can creatively propose solutions which address what your counterparty really wants. This can help soften your counterparty’s position on key issues which are important to you. For example: Might your counterparty be open to receiving less compensation from you if you agree to give him a stake in your business?
4. Prepare your opening statement
After considering all of the above, it is important to share these to the mediator in your opening statement, rather than merely repeating your prior stated position all over again. If lawyers are helping you prepare your opening statement, you should ensure your lawyers are well apprised of your concerns and proposed solutions and include them in the opening statement.
This is simply a matter of helping the mediator to help you – when the mediator understands what you want, he/she will be empowered to channel the discussion to areas of agreement rather than the areas of disagreement. You may be surprised to realise that mediators, with their wealth of experience, may help you develop very viable solutions which you may not have thought of!
With its effectiveness in bridging gaps between disputing parties and the rising costs of legal action, mediation has become the alternative dispute resolution mechanism of choice. Preparing well for your mediation session will go a long way in helping you reach an acceptable settlement, and in bringing early closure to your dispute.
Zhen Yu has a wealth of experience in a range of commercial disputes, having practised at one of the largest medium-sized law firms in Singapore. He has participated in mediations at the Singapore Mediation Centre and as lead counsel at the State Courts Centre for Dispute Resolution.
Peacemakers offers the services of internationally accredited mediators with extensive experience in resolving local and international conflicts. If you are involved in a dispute, let us know your requirements via email at email@example.com, and we will recommend you the mediators that best meet your needs!