Commercial Mediation: The Good, the Bad and the Ugly
30 October 2015
“No dispute is ever about what it’s about,” quoted Alan Limbury as he began his talk organised by the Singapore International Mediation Centre (SIMC).
The “good” thing about mediation is that it answers the “why” question. In so doing, mediation can help to meet the interests of the parties and allow them to fashion a solution that goes beyond who is legally right or wrong. Alan shared some examples that illustrated this point, including an intellectual property dispute where the creative and flexible outcome included a mediated settlement agreement providing for a series of payments over time, licensing arrangements and future business cooperation.
The “bad” in mediation arises in a number ways. When the parties attending the mediation do not have full authority to settle (i.e. a limited authority to settle within fixed parameters) and this is not made clear from the beginning of the mediation, this can affect the progress of the mediation and destroy the momentum for settlement. Another “bad” happens when mediation is only measured by its efficiency at bringing about settlement. The true value of mediation does not lie only because it is quicker and cheaper alternative to litigation or arbitration but in its ability to help parties get what they really need and want. The third “bad” that Alan commented on was the confusion surrounding admissibility of communications in mediation under Australian law. It is hoped that, at least for Singapore, the draft Mediation Bill currently being worked on by the Ministry of Law will address these difficulties.
Finally, in sharing about the “ugly” in mediation, Alan spoke about a situation in which he found himself having to terminate a mediation due to possibly fraudulent conduct on the part of one of the parties revealed at a private session. Mediators are sometimes confronted with tricky situations and institutional mediation may sometimes be helpful as institutions have ethical norms and standards for mediators that can provide guidance.
SIMC would like to thank Alan for spending his time sharing his experiences at a lunch event kindly hosted by Clifford Chance Singapore and also at a more intimate setting with LLM students from Sorbonne-Assas International Law School – Asia.