A LAWYER’S INTRODUCTION TO MEDIATION

• Author: LIM LEI THENG & JOEL LEE
• Date: 01 December 1997
• Published date: 01 December 1997

Introduction

The Alternative Dispute Resolution movement that occurred in the United States in the 1970s arrived in the Singapore legal system in 19941 with the introduction of Court Dispute Resolution in the Subordinate Courts. Since then, the practice of mediation has become a fact of life for the litigation lawyer. With the promotion of mediation in the Family Court, and the introduction of the Commercial Mediation Service at the Singapore Academy of Law, and the likely introduction of community mediation, it is imperative that the Singapore lawyer be acquainted with the facts about mediation and how it relates to the practice of law. This article also seeks to explore the relationship between legal practice and mediation and examine the positive as well as negative aspects of that relationship2.

Section I of this article will begin with a definition of the concept of mediation. Section II explores the distinctions between different types of mediation. The focus will then be placed on interest-based, facilitative mediation, arguably the most common form of mediation practised in Singapore today. Hence Sections III and IV will describe and analyse the mediation process and roles of a mediator in interest-based, facilitative mediation. Section V concludes with the implications of mediation on a lawyer and on the practice of law.

It is hoped that this article can provide the basic principles of mediation in the context of legal practice. It is only when there is a proper understanding of what mediation can or cannot do that a legal practitioner can best provide advice to his or her client on the most appropriate forum for the resolution of their disputes. The basic premise of this article is that mediation is another tool in the lawyer’s tool kit that is utilised to serve clients, and that mediation can expand the scope of legal practice. Lawyers can and often do play many roles in mediation, from being mediation advocates to being mediators themselves. Yet mediation cannot be seen as a panacea for all evils, and practitioners should be well aware of its limitations.

I. What is Mediation?

Mediation can be variously defined as “… negotiation carried out with the assistance of a third party”3; “… the principal form of third party assistance (in the resolution of disputes), (which) involves an outsider to the dispute, who lacks the power to make the decisions for the parties …”4; or “… an extension or elaboration of the negotiation process that involves the intervention of an acceptable third party who has limited or no authoritative decision-making power.”5 As noted author Christopher Moore6 states,

“Mediation is essentially a negotiation that includes a third party who is knowledgeable in effective negotiation procedures and can help people in conflict to co-ordinate their activities and to be more effective in their bargaining. Mediation is an extension of the negotiation process in that it involves extending the bargaining into a new format and using a mediator who contributes new variables and dynamics to the interaction of the disputants.”

There are many models of mediation, from interest-based to evaluative mediation, but all models of mediation feature the same basic characteristics. In essence, mediation is the involvement of a neutral third party in the facilitation of the negotiation between or among disputants in a conflict.

The neutrality of the third party in a mediation does not presuppose that the third party is a stranger to the disputants. In many cases, the mediation process is assisted by the fact that the mediator is an individual known and trusted by disputants and whom the disputants believe will be able to play a neutral, balancing role between the parties. It is essential however, that in a mediation, the mediator has neither the power nor the authority to impose a decision on the parties7. The essence of mediation, as the definitions provided show, is that the role of the mediator is merely to facilitate the resolution of the dispute. The manner in which the facilitation takes place may differ, but once the mediator steps into a decision-making role, the process ceases to be mediation, and becomes an arbitration or a judicial proceeding, and takes on an entirely different character.

It is crucial to draw the distinctions between mediation and other forms of dispute resolution such as litigation and arbitration for the simple fact that the basis of decision-making, and the power of decision-making are vastly different. It is this difference that makes mediation an attractive method of dispute resolution. As the definitions show, mediation is an extended form of negotiation, a form of settling a dispute which leaves the decision-making to the disputants themselves. In mediation, the role of the third party, whatever it may be, can never be to make a decision on the substance of the dispute. Rather the third party’s position is merely as a facilitator to the negotiation between the parties, either to bridge the communication gap, or to provide a different perspective of the dispute, or to bring new ideas and put a new face on the dispute — all in an attempt to bring the parties closer to an amicable settlement8. The main benefit of mediation is that the dispute resolution process is still within the control of disputants, and that the type of solution that can be achieved is entirely within the parties’ control to craft and execute.

Mediation is in no way a new-fangled notion that has been evolved from western legal systems. In fact mediation is a process of dispute resolution that exists in many traditions and cultures. The referral of family disputes to the head of the family, or community disputes to the village elder or penghulu — all these forms of dispute resolution have been practised in Asian societies since ancient times9. While the authors are not aware of precise documentation of the processes that are used in these forms of dispute resolution, a research project has been instituted through a multi-disciplinary study group10 at the National University of Singapore that will explore these traditional forms of dispute resolution11 with a view to examining the processes that have traditionally been used for application in Singapore society today.

Despite the fact the mediation is not a new form of dispute resolution, a surprising number of people have expressed the view that mediation or even negotiation is not part of legal practice. The adoption of common law in Singapore and western legal training have resulted in a neglect of traditional means of dispute resolution. These traditional means are now being revived. In fact many practitioners already conduct mediation in some form or other in their own legal practice. For example, legal representatives serve a mediatory function by using the law as a common and objective basis on which disputes can be resolved.

Advantages of Mediation

Mediation is necessitated when parties are unable to work out their own differences. This can occur when parties fail to communicate or misunderstand each other. The usual solution is to go to one’s lawyer, and seek redress. However, the lawyer’s function is not only to seek redress through the judicial system. In the changing trends of legal practice, where litigation has become expensive and complex, and where litigation has evolved its own complicated framework of rules and procedures, a lawyer’s role is to advise a client on the best and most appropriate means to resolve their problem.

Problems differ in their nature and characteristics. Disputes arise and people fail to reach negotiated agreements for a variety of reasons. These could be12:—

1. • Failures in effective communication

   • Different information or different assessments of the same information

   • Different attitudes towards risk

   • Emotionalism

   • Extrinsic factors not within the control of parties

   • Different perceptions of alternatives to agreement

Mediation has various intrinsic features that directly address these causes of disputes. While an assessment of the types of disputes most amenable to mediation is not within the scope of this paper, it is appropriate to

examine the advantages that mediation can offer as compared to litigation. These can be listed as follows13:—

1. 1. Mediation encourages and facilitates an exchange of information in a non-adversarial setting.

2. 2. Mediation helps to provide new information to parties which could assist in the resolution of their differences.

3. 3. Mediation helps parties to understand each other’s views and difficulties.

4. 4. Mediation gives parties an opportunity to ensure that their concerns are understood by their counterparts in the dispute.

5. 5. Mediation helps to promote a productive level of emotional expression.

6. 6. Mediation deals with differences in perceptions and interests between disputants.

7. 7. It helps parties to realistically assess their alternatives to settlement.

8. 8. It encourages flexibility and provides opportunities for creative solutions not limited by the remedies that the law can provide.

9. 9. Mediation shifts the focus from the past to the future.

10. 10. Mediation assists in the discovery of those interests that parties are reluctant to disclose to each other which may, in the grasp of a good ethical mediator, assist in the resolution of the dispute.

The manner in which these advantages come about in mediation are revealed in the exposition of the mediation process14. What is important to note however, is that mediation offers these advantages precisely because it is an assisted negotiation. The presence of a neutral third party who acts as a facilitator to the negotiation assists in the breaking down of barriers to communication, adds a different perspective on the dispute, and helps parties in their communication and negotiation process. The fact that the third party is not a judge, nor...