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 mediate@peacemakers.sg, and we will recommend you the mediators that best meet your needs!

If you are an individual involved in a civil dispute, you are always encouraged to attend the mediation in person. But what if your company/organisation is the party involved in the dispute?

If your company/organisation has an upcoming mediation, something important to think about is who should attend the mediation. Here are 3 points to consider when making this decision:

1) Authority

Your representative at mediation must be able to make judgment calls on behalf of the company, to negotiate and settle the matter. The goal of mediation is to resolve the dispute at hand. In order for mediation to be productive, the representative must therefore possess a sufficiently flexible mandate to negotiate with the other party, and to be able to sign off should an agreement on terms be reached.

Without sufficient authority, there will be limited room for negotiation between parties. This will likely result in a frustrating experience for everyone. Imagine if parties spent all day hammering out an agreement, only for discussions to fail because someone whose consent was needed failed to participate or cannot be located in time. Infuriating.

If for whatever reason a person whose consent is needed for settlement is unable to attend the session, he/she should be available and contactable in real-time to avoid the above scenario. This will show sincerity in wanting to resolve the matter, and reduce any allegations of not entering into mediations in good faith.

2) Other Key Persons

Other persons who should be present at the mediation are specific individuals (if they are key to the dispute), and experts (where technical knowledge is involved).

Even where parties are represented by counsel, the principals are still encouraged to attend the session in person. Lawyers' involvement should not replace active participation of the principals. This way, parties can advocate for themselves. This helps ensure a thorough airing of the issues to be discussed - an essential part of the mediation process to reach a mutually acceptable and lasting settlement agreement.

3) Signals Sent

Finally, consider the signal which you intend to send to the other parties at the mediation. Attendance by a low level representative (even with full authority and mandate) may be read as a sign that mediation is not being taken seriously. Participation by the CEO however, will no doubt be taken as a sign of respect and a sincere attempt to settle. This might be quite relevant in Asian cultures where “face” is important.

Deciding on the right persons to attend mediation on behalf of a company/organisation is a nuanced and strategic consideration. Next time you decide on the organisational representatives to attend mediation, consider the points above and choose accordingly.

To learn more about mediation, check out our training programmes. Peacemakers is focused on delivering conflict management, negotiation, and mediation training courses to organisations, customised for their specific industries and corporate cultures. Contact us at mediate@peacemakers.sg to see how we can assist you with your training needs today.

By Jermaine Ng, Legal Associate

What is mediation? 

Mediation is a flexible and confidential dispute resolution process, in which a neutral third-party (the mediator) facilitates negotiations between parties, with the view of resolving the dispute(s) amicably.

We have listed out five key points relating to mediation which we think you should know:

1. Why would I end up at mediation?

Parties typically go to mediation for three reasons. First, they may be bound by their contractual arrangement(s) to do so. Second, attending mediation may be part of the court process or is recommended by the court. Third, because parties are unable to resolve matters privately, and prefer to have a neutral third party assist in the dispute resolution process.

2. Who should I choose as my mediator?

After deciding to proceed with mediation, the parties would then have to agree on choosing a mediator. It is important to select a competent and experienced mediator who is the right fit for your case. Other than fees and availability, the mediator’s experience, subject matter knowledge, neutrality, and language competency are also important factors to consider. More details about selecting the right mediator can be found here.

3. What goes on at mediation?

There are two main parts to a mediation session: (i) the problem defining stages; and (ii) the problem solving stages.

In the problem defining stages, the mediator would start by explaining the mediation process, and set some ground rules to ensure the mediation runs smoothly. Parties would then be given the opportunity to make an opening statement, give their perspective on the dispute, and highlight their points of concern.

At the problem solving stages, the mediator would work with the parties to set an agenda to determine the relevant issues at hand. The parties would meet the mediator either together or separately to discuss and assess areas of settlement thereafter. Apart from examining the strengths and weaknesses of each party's position, possible agreements are also encouraged. Negotiations would continue until a settlement is reached. In the unlikely event that parties do not reach an agreement, the mediation session either comes to an end, or another session would be arranged.

Should parties reach an agreement to settle, the terms of said settlement would be recorded in a written agreement to be signed by the parties. This settlement agreement is enforceable as a contract, and can even be enforced as a court judgment if it is recorded as an order of court under the new Mediation Act.

4. What are the main features of mediation?

Empowerment. The mediation process empowers parties to come to a solution on their own. Parties can take ownership over their decision and have extensive control over both the process and the outcome of the mediation, instead of having a judge or arbitrator decide on the dispute or the course that is to be taken. The mediator would facilitate discussion between parties and encourage them to see their dispute as a joint problem which requires a combined effort from all parties to resolve.

Confidentiality. Mediation is confidential, and does not compromise your rights in court should you decide to pursue litigation or arbitration at a later date. This confidentiality is protected both statutorily under the Mediation Act, and also by a mediation agreement to be executed by the parties before the mediation begins. Such confidentiality usually relates to the whole process, and information given to the mediator during the process. While arbitration proceedings are usually confidential as well, the same cannot be said for litigation proceedings.

Affordable and Fast. Apart from being more affordable than its other dispute resolution counterparts, mediated disputes tend to be resolved more quickly – most cases are resolved within a day of mediation. This is as compared to arbitration or litigation, which may take years, and negotiations, which may take from weeks to months.

Effective Resolution. Statistically, global average settlement rates are high. Further, studies have also shown that mediated settlements are rarely breached, because parties are likely to keep to the terms they had voluntarily agreed on.

5. What kinds of disputes are suitable for mediation?

Contrary to popular belief, most disputes are suitable for mediation, regardless of their subject matter! Typically, it may be the circumstances which makes mediation unsuitable in any given case, instead of the subject matter.

Having said that, mediation is typically most useful in the following circumstances:

• Where a quick solution is desired;
• Where litigation or other dispute resolution methods would be inappropriate (e.g. due to disproportionate costs, complexity of trial, and so on);
• Where parties desire and intend to continue their relationship going forward; or
• Where private and confidential resolution is important to the parties.

To learn more about mediation, check out our training programmes. Peacemakers is focused on delivering conflict management, negotiation, and mediation training courses to organisations, customised for their specific industries and corporate cultures. Contact us at mediate@peacemakers.sg to see how we can assist you with your training needs today!

Choosing the right mediator for your case is often the first step in the mediation process, and a crucial one. Parties who invest time and effort in choosing the most suitable mediator inevitably increase their chances in finding success at mediation.  Other than the obvious factors of cost (i.e. the mediator’s fees) and availability (i.e. dates), here are 5 simple things to look for when selecting a mediator:

1. Experience

Enquire about the number of cases the mediator has mediated, and their settlement rate. While not an objective benchmark of a mediator’s effectiveness, mediators who have handled more cases typically have experience dealing with a variety of situations, and are widely trusted for their skills.

2. Subject Matter Knowledge

If your case involves technical terminology and requires specialised knowledge, you might need a mediator with subject matter expertise or knowledge of a particular industry. In certain situations, mediators with subject matter knowledge might be more effective, and can make the mediation process more efficient. For example, if your case is legally complex, a lawyer-mediator may be more helpful when discussing legal issues. In most instances however, an extensive knowledge of the law is not necessary to mediate a case.

3. Neutrality

Neutrality is a key characteristic of mediation. It is imperative that the mediation process be facilitated by a neutral and impartial third-party, to encourage parties to feel safe and comfortable enough to speak openly about their issues and concerns, and to explore potential solutions with one another.

4. Language Competency

Communication is paramount at mediation. A mediator must be able to communicate effectively between parties, especially parties who do not speak the same first language, and are from different countries/cultures. Ensure that your mediator can speak comfortably and fluently in your language(s) of choice.

5. International Disputes Experience

In an increasingly globalised world, and with Singapore strengthening its status as a commercial dispute resolution hub, it is increasingly common for parties to come from different countries and legal traditions. If you have a cross-border dispute or a mediation where at least one advocate is from a different jurisdiction from your own, you should consider appointing a mediator with experience in international disputes and who is sensitive to the nuances of cross-cultural interactions.

The benefit of selecting the right mediator for your case is more than just securing a competent and experienced mediator – the fact that the choice is made by mutual agreement has a positive psychological effect in creating a collaborative atmosphere before the actual mediation even begins. The selection process might take some time and effort, but it will be well worth the trouble. Remember to make your choice wisely!

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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 mediate@peacemakers.sg, and we will recommend you the mediators that best meet your needs!

Disputes are part and parcel of life. When matters escalate into a legal dispute, our first reaction is typically to consider taking the matter to court. However, trials are not the only way to resolve a dispute.

There is a spectrum of dispute resolution processes. This ranges from the more informal and collaborative modes, to more formal and adjudicative mechanisms.

Negotiation

At one end of the spectrum we have negotiation. The most flexible of all the processes, parties typically communicate directly with one another in an unstructured discussion, and have to work out a solution between themselves. Negotiations are also usually free.

However, people tend to be emotional, and have their own views about what happened. If not done effectively, speaking and negotiating directly with the other party might result in a stalemate, and prolonged negotiations with no positive outcome can end up escalating tensions.

Litigation

At the other end of the spectrum is litigation, i.e. taking the matter to court. Once taken to court, the dispute will necessarily be resolved when judgment is passed.

Court proceedings are dictated by court rules, hence parties have minimal control over the process. Parties also have no control over the outcome, which is decided by the judge. As the process is adversarial, someone can only win at the other’s expense, hence misunderstandings and tensions are inevitably escalated and relationships worsened during trial. Time and money have to be spent to prepare for and attend trial, and the emotional costs of going through the trial process usually takes a huge toll on parties. Matters discussed and documents disclosed for court proceedings become public knowledge. Courts are bound by precedent (previous cases), and can only award legal remedies such as financial compensation. Even then, court judgments are also often appealed as parties often do not agree with the court’s decision.

Arbitration

Arbitration is similar to litigation, in that parties agree to resolve the dispute by bringing it before a neutral third party, i.e. the arbitrator. Unlike litigation however, parties can decide for themselves who their arbitrators are. Arbitrators have more flexibility than court judges to decide how the arbitration should proceed and what weight to give evidence. Arbitrations are also confidential.

The arbitrator looks into the legal rights and wrongs of a dispute and makes a decision (i.e. an arbitral award). Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not. As in a court case, there is usually a winning and a losing party in an arbitration. Arbitration awards are enforceable in multiple countries under the New York Convention. However, losing parties will always find ways to resist arbitral awards and make it difficult to enforce.

Mediation

Mediation exists closer to the negotiation end of the spectrum. Mediators are independent neutrals who serve as facilitators to negotiations between parties, i.e. they do not decide the outcome for parties. Mediations are voluntary and minimally structured to offer flexibility.

Mediators can offer a neutral perspective to help parties gain new understandings and overcome deadlocks, drawing on their professional experience to support the problem-solving process, while ensuring parties retain full control of the outcome. Mediators are trained to support constructive communication, manage emotions, and prevent conflicts from escalating. All information disclosed at the mediation is confidential and without prejudice. This means that it cannot be disclosed elsewhere, or used against either party in legal proceedings should parties not settle at mediation. Mediations are also almost always cheaper and faster than litigation or arbitration proceedings.

Should parties reach an agreement to settle, the terms will be recorded in a written agreement to be signed by the parties. This settlement agreement is enforceable as a contract, and can even be recorded as a court order under the new Mediation Act. In any case, studies have shown that mediated settlement agreements are unlikely to be breached. In reaching an agreement, each party will have their own interest in performing; otherwise they would not have signed it.

Conclusion

The next time a legal dispute arises, this guide can help you better choose the appropriate dispute resolution mechanism that best meets your needs.

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Peacemakers is a select network of mediators. Peacemakers mediators have successfully mediated hundreds of conflicts arising between individuals, companies, and governments. 

As mediators and mediation advocates, our settlement rate to date is close to 85%. If you need a mediator, contact us at mediate@peacemakers.sg to see how we can assist you!