Mediation – My thoughts, my journey

Aloysius Wee, Joint Managing Partner of Aquinas Law Alliance LLP, Singapore

Looking back on my legal career of more than 25 years, I wondered when was it that I first met “Mediation” or came to know of its existence. Early on in my legal career where I started out as a trained barrister and litigation lawyer in Singapore, I was schooled in legal procedure which were rules of procedures for courts. How to start a particular action, when I had to file a defence and what should I include in a court application. It was early in my legal career that I was introduced to arbitration. In the 90s’ arbitration was put forward as an alternative to court litigation. The advantages of arbitration which were often cited; how it could deal with extra jurisdictional enforcement and how it was more efficient as a dispute resolution tool. Alas arbitration has become more widely used and accepted these days but so has mediation which started to creep into my legal career around about four years after I started out as a lawyer.

Back then the Singapore Courts conceived of the Court Dispute Resolution Centre to handle disputes through mediation before trial. My experience there was confined to mainly motor accident cases where a judge sitting as a “mediator” would review cases before two opposing counsels to apportion liability or to “close gaps”. The mediation then was more a pre-trial judicial review and often did not involve the parties very much and when it did was only to inform them either how the case could go if it went to court or how expensive it would be, often the end result was to pressure a settlement amongst the parties.

My next meeting with “Mediation” came when the Singapore Mediation Centre was set up and some High Court cases were channelled there before a hearing. I was then acting as counsel for a client and appeared with them before a mediator. The experience was pleasant and we managed to get an outcome that the client was happy to accept as a “compromise”. The experience was less of the “coercion” and use of “pressure techniques” that I had experience earlier. Although the outcome was reasonable and bearable it was not one which the client felt was entirely favourable but as a result of fatigue accepted his fate rather than to roll his dice and take his chances at trial. Perhaps this is one the often un-talked about part of mediation, parties get to experience the rigours of a mediation session (some may conclude that it is similar to a trial) and get fatigued by the experience and agree to settle. Some would say that parties had finally seen the light and settled.

Whilst mediation did bring benefits to disputing parties, I also experienced several abuses of mediation as a dispute resolution tool. Some parties use the process of mediation to buy more time and with no genuine interest to want to settle matters. They may use mediation to hold back litigation proceedings while they gather more evidence against the counter party or they may start dissipating assets in fear of enforcement down the road. Another form of abuse is to mediate and enter into a “sham settlement” usually an instalment for payment with no real intent to honour all payments but to buy more time so that enforcement proceedings cannot take place sooner.

Some ten years ago I enrolled myself to be trained as a mediator and it was then that I had the inside scoop of the mystique of “mediation”. Through the training to be a mediator, I was thought various techniques to highlight issues and to channel attention to these issues with a view to get parties to an acknowledgement of these issues and resolution if possible. Most lawyers assume that because they are experienced lawyers, they will make good mediators. This is not necessarily true. Being a mediator involves calling on a different set of skills and to be patient and to listen well. Having this training gave me new a lens to see “mediation”.  As a mediator I could see where some of the gaps were and how I could help parties bridge these gaps where I could not as a lawyer representing one side only as I had only presumably one side of the story.

Recently, mediation has taken somewhat of a prominent place. The signing of the Singapore Convention in 2019 is supposed to give agreements concluded through mediation enforceability as if it were an arbitration award under the New York Convention. With more countries signing, mediation would be able to be a more effective tool. Often people would cite the weapons that one had in dispute resolution, litigation, arbitration and mediation. I would prefer to see mediation in a different light, not as a weapon but more of a shield, a tool.

Mediation for the most part have been used once a dispute arises, when such a situation arises, then it may be difficult for mediation to take place freely given the constraints of the position that each disputing party will have already taken. Perhaps we should consider mediation for scenarios where parties anticipate disputes to happen because of either certain event unfolding or certain actions that need to be taken by any one party. In legal jargon when one receives notice of an anticipatory breach of contract. If parties are given the platform to meet and to talk ahead, these potential disputes may not end up being disputes. But could be mutual variations of the original contract.

This is especially so in these times of the covid pandemic. If there are mediation clauses that allow parties to meet and mediate because contractual obligations have been impacted, then mediation may show a way for how new risks can be shared and mitigated before breaches of contract occur. Mediation being flexible allows parties to address these issues. Without a mediation clause, parties may not have the platform to talk and review their legal obligations.

One other aspect of mediation that I have taken with me in my lawyering now is to mediate whenever and wherever there is an opportunity. There need not be a mediation clause to mediate between parties in some situations. As a lawyer sometimes I am called to represent one party’s rights and to negotiate on his/her behalf. There have been times where there are road blocks in negotiations and here is where I wear my mediator hat and highlight to the client the issues at hand and to see whether he/she is open to looking at things from the other side’s viewpoint. This is to point out the various options and for the client to make an informed choice of what he/she wants. Wearing the mediator hat I can play the devil’s advocate and advance the cause of the opposite party. Sometimes this can lead to revelations that the client did not see before.

There was an instance where I had advised a client who was discussing with his brother on a contractual separation of powers for the business empire that their late father had left them. I was able to mediate and to show my client a side of his brother that he had forgotten and how it would be their father’s wishes that the power sharing would be carried out in a certain way. Did I have an obligation to plead the case of the brother that I was not representing? No but presenting the other side’s point of view gave my client a more complete picture and hence the opportunity to make a more informed decision.

One of the other advantages of mediation is that the “remedies” that may arise from a successful mediation could be more impactful than what a court of law can order.  When parties are in dispute sometimes all that is needed is for the other party to hear the aggrieved party out and to offer his/her apologies. Mediation allows for the parties to air issues that often may not be relevant in a court of law towards the issues of dispute at hand but nevertheless has affected how each party has acted towards each other.  In another case where I handled as counsel, I sensed that there were under currents between my client and the other party. In the mediation, I opened a door for my client to air his grievances and asked the mediator for the latitude for my client to bring up issues which may seemingly be irrelevant to the disputes at hand. In the end, after hearing my client, the other side said that he did not see things that way and did not know that my client felt the way that he did. He apologised to my client. My client then withdrew the claim that we were originally there to mediate and we all went home happy.

Mediation is now part of my bag of lawyering tools. As a lawyer I put on my mediator hat to help air out issues and to see if a resolution can be reached before I consider formal litigation or arbitration.