Lim Teong Jin provides us with a clear understanding of the benefits and
procedures involved in mediation conducted at the Singapore Mediation Centre. He
explains the role of lawyers in mediation and how they can ensure that their
clients obtain the most out of the mediation process.
Singapore Mediation Centre conducted its first mediations in 1997, one of my
friends, who practises as a court lawyer, recounted his experience at a
mediation session to me.
He told me:
It was an interesting and complex case, which had been scheduled to take seven hearing days in court. I was acting for the plaintiff, and eager to proceed. Then came this mediation thing. It was awful.
My client decided to settle at 70% of his claim. I wasn’t happy because I thought we had let the defendant off too easily.
But do you know what?
My client loved it. And when I saw him shaking hands with the defendant at the end of the mediation session, I thought to myself: ‘Maybe we have done the right thing after all.’
right thing for a client. Acting in his best interests. This is what my friend
felt was his duty. It is every lawyer’s
primary duty. My friend was able to overcome his initial uneasiness with the
mediation process, as well as his own preferences and interests, to help carve
out a solution which his client was prepared to accept.
To me, this
is a pre-requisite of being a good mediation advocate. To understand that at the
end of the day, a lawyer’s
duty is to do what is in best interests of his client. We may ‘lose’
some fees in the process, but there
too. The disputants are happy (at least relatively so), and both counsel get to
keep a client for life.
of a Lawyer in Mediation
What is a
lawyer’s role in the
mediation process? What does it take to become a good mediation advocate?
I would like
to touch on eight areas:
observations and comments made in this paper relate to the mediation sessions
conducted at the Singapore Mediation Centre (SMC). I will direct my address to
the lawyers amongst the readership, but if you are a potential party or
participant in a mediation session, I hope that you will find these remarks
useful as well.
with the Mediation Process
mediators accredited to the SMC are trained to practise interest-based,
facilitative mediation. This means that the focus of the mediation is on
ascertaining the underlying interests or concerns of the parties (as opposed to
their claims or rights), and searching for an appropriate solution which can
reasonably satisfy the interests of both parties.
take a dispute between two neighbours where one neighbour has sued the other for
damages for hitting him in the course of an argument. The claim may be monetary
in nature, but the real interests or concerns of the parties would be to find a
solution which would allow them to live in harmony.
as a general rule, mediators at the SMC practise facilitative mediation. In
other words, the mediators are not there to tell the parties who is right or who
is wrong. The focus is on problem solving, not on who has a better case.
advocates should be familiar with the process practised at the Centre, so that
they can adequately prepare their clients for the sessions beforehand. Whilst
there are no fixed rules or procedures in mediations, and mediators may need to
be more flexible and creative in some cases, a typical mediation at the SMC will
consist of a combination of the following components:
the Possible Objectives of Mediation
the ultimate reason for using mediation is to resolve the entire dispute between
a mediation advocate, you should be aware that in the event that the entire
dispute cannot be resolved, you can consider other possible objectives, which
may still prove to be useful or helpful to your client:
preparing for a mediation, it would be useful to bear in mind these other
possible objectives. Solving part of the problem for your client is still better
than not solving anything at all.
Whether to Mediate
mediation advocate, you can assist your client by helping him to assess whether
the case is suitable for mediation. For example, a case is suitable for
client to assess his chances in court, eg by obtaining an expert’s
report or an independent valuation. What would the probable outcome in court be?
Would a mediated settlement be a better alternative?
When to Mediate
which was recently telecast on TCS 5, Tom Sanders (played by Michael Douglas)
charged his immediate boss, Meredith Johnson (played by Demi Moore), with
sexually harassing him. Tom’s
attorney opts to mediate the dispute three days before Johnson’s
company, Digicom, is due to enter into a merger with another company. The timing
is perfect as the company does not want to attract any adverse publicity before
another example, a party that feels it has a good case may nevertheless be
prepared to settle because it is preparing for a listing.
timing is everything. Generally speaking, a dispute which has been referred to
mediation at an early stage stands a better chance of being resolved. If you
decide to mediate at too late a stage, the parties may not be able to settle
because of the amount of acrimony which has been generated, and the costs which
have been incurred. Sometimes, however, opting for mediation at too early a
stage may have its drawbacks. The parties may need a cooling-off period before
they are ready to mediate.
is proposed by the SMC. In almost all cases, the proposal is accepted unless
there is, say, a conflict of interest. You can help ensure that the mediator who
is selected is an appropriate choice for your case by:
As the SMC’s
practice is to appoint two co-mediators, you can request for an industry
specialist, say, an architect or a quantity surveyor, to be appointed as a
co-mediator where you think that their expertise will assist in the resolution
of the case.
Your Case for Mediation
Just as a
litigation lawyer needs to develop his case theory before trial, a mediation
advocate needs to know his case well, and strategise for the mediation.
step is to review the pleadings (if any), the relevant documents and the
correspondence between the parties. If without prejudice negotiations have been
conducted, note the last offers made by the parties.
As the type
of mediation practised by SMC mediators is interest-based mediation, the next
step is to identify the interests and concerns of both parties. Once you are
aware of the available evidence, the legal positions and the underlying
interests of the parties, you will have an understanding of what is actually
How does one
identify the opposing party’s
true needs and interests, and deal with them?
and William Ury in their book, Getting to Yes, offer these suggestions:
understand the interests and concerns of the parties, you are then in a position
to make a list of possible options or solutions.
Example: Restraint of Trade Clause — 3 Years
|1 Claim/Counterclaim Injunction to||Restraint defendant from working in Company X. Account of profits or damages.||Unpaid salary, CPF, expenses incurred on behalf of the plaintiff company.|
|2 Interests/Concerns||Loss of clientele/business. Afraid it would set bad precedent for other employees||Livelihood at stake. Money.|
these options with your client, and work out a strategy in terms of:
Once this is
done, you are in a position to prepare your client’s
Case Summary, which should be presented to the mediator several days before the
mediation. The Case Summary should not be longer than two to three pages, and
should state your client’s
claim, his interests and concerns, and the status of the latest negotiations.
Important documents supporting your client’s
claim ought to be disclosed to the mediator. Preparing Your Client for Mediation
In a trial,
the client’s role is limited
to the giving of evidence. The lawyer plays a greater role; making the opening
statement, examining and cross-examining the witnesses, and making the closing
mediation, the client plays a greater role and the lawyer’s
role is more advisory in nature.
session with your client before the mediation, where you can:
Your Client at the Mediation
This is the
time for you to put the strategy which you have discussed with your client into
client in his opening statement. If he has missed out any important point, chip
in at the end of your client’s
presentation. You may ask the mediator for permission to clarify aspects of the
opening statement or obtain further information.
your client’s true interests
and concerns. You may ask questions to ‘test’
the interests and concerns raised by
the other party. Assist the process by helping to generate options and possible
solutions, bearing in mind the goals, strategies and bottomlines of your client.
but ensure that your client does not disclose more than what he set out to do or
exceed his bottomline. At the end of each private meeting with the mediator,
state clearly what can or cannot be disclosed by him to the other party.
time necessary to caucus with your client privately. Remember: you are there to
protect your client’s
interests and to help him negotiate.
with the mediator
the mediator. He is a neutral, and is there to assist the parties. If he is
convinced of your client’s
sincerity and the reasonableness of his position, he can help to relay your
client’s proposals to the
other party and explain the rationale in a more objective manner. A proposal
made through the mediator usually comes across better.
litigation, the aim is to win the case for your client, regardless of the
outcome for the opposite party. In mediation, whilst the aim is still to obtain
a good settlement for your client, the focus is on joint problem solving, not
demolishing your opponent. It takes two to settle a case, and the challenge is
to find a solution which reasonably satisfies the interests of both parties.
client makes an offer or accepts a settlement, ensure that you discuss the
details with him so that he understands what he is doing. Check that the terms
of settlement are viable and can be performed. You ought to be aware that the
terms of the Mediation Agreement signed with the SMC specify that there is no
binding agreement unless it is reduced into writing and signed by the parties. A
party cannot, therefore, be held to an offer made verbally in the course of the
mediation session. If the parties arrive at a settlement, draft a simple
agreement which covers the vital points.
If, at the
end of the mediation session, your client decides to shake his opponent’s
hands, remember the experience of my lawyer friend and tell yourself, ‘Yes,
I did the right thing for my client!’
Lim Teong Jin
Wee Tay & Lim