Mediation: solutions that save relationships

Posted in News

3 October 2015
Business Times, Singapore

PEACEMAKERS: Mr Kallipetis (above) is positive that the shift to mediation is “inevitable”, and Mr Lim maintains that “the vast majority of cases can be successfully mediated”.

SAVING relationships while helping people resolve problems that are not on paper – in a world where hard facts in litigation still rule the day – is not a soft option.

While some critics may cast doubt on the value of mediation, there is always more than meets the eye when parties have disputes, says Queen’s Counsel Michel Kallipetis, a full-time mediator with a 10-year-old practice in the UK.

He will tell you that the most upsetting disputes are those between bitter siblings. “Everything that’s dear to the client is excluded in litigation because all you want are the facts to support the case you want to argue. In mediation, it’s the reverse: there’s always something behind as to why they are fighting each other the way they are, and once you know what that is, you can begin to address it and help them overcome it.”

The satisfaction from achieving an amicable outcome is something that’s shared by both Mr Kallipetis and local litigator-turned-mediator George Lim.

Recounting a business dispute where the parties could not agree on the interpretation of an important clause in their joint-venture contract, Mr Lim said both parties realised it was more important to continue their business ties, and agreed to a compromise. “And you know what? After we signed the mediation agreement, that evening we had dinner together!”

The Senior Counsel, who has practised as a litigator for 33 years now, firmly believes that a mediator has to want to help people solve problems in a respectful, fair and dignified way. In 1997, when the Singapore Mediation Centre (SMC) was set up, he was part of the founding committee and decided then to take up mediation training in the UK, and later in Harvard.

Convinced after a few cases that this was a more effective way to resolve differences and disputes as “it is quick, saves costs, and solutions can be flexible and creative”, he chose to pursue this full-time in late 2014. “For poorer people, or those without a lot of resources, it is a form of access to justice. There is also a chance for the parties to preserve their relationship if they settle, whereas this would not be possible once a case went to trial.”

Offering mediation services is part of the government’s wider plan to build up Singapore’s legal system as well as position itself as a dispute resolution hub. In 1991, the Singapore International Arbitration Centre was set up, then the Singapore International Mediation Centre last November, and in January this year, the Singapore International Commercial Court was launched.

The shift to mediation is “inevitable”, as Mr Kallipetis, a practitioner of 16 years, witnessed in the UK.

Years ago, a Belgium lawyer had told him at a meeting: “You’re taking the bread out of our mouths. We will fight this.”

“That particular lawyer is now one of the strongest advocates of alternative dispute resolution (ADR) in Belgium because the lawyers suddenly realised they were being totally selfish,” Mr Kallipetis recalls.

Still, it will be a “long, hard road” as the mediation scene here is fledgling, he admits, pointing out that it took the UK some two decades to get to where it is.

A hiccup, perhaps, is the “fairly limited” area of work to draw from. This is unlike in the UK, where mediators handle some 7,000 cases a year, he notes.

To date, the SMC has handled over 2,600 disputes involving more than S$3.2 billion, with its stable of 143 mediators. Of these, most were commercial matters.

Even as more parties now seek mediation as a cost-effective form of dispute resolution, SMC executive director Loong Seng Onn worries that the development of the profession could be hampered.

SMC’s biggest competitor is the State Courts, which now handle more than 90 per cent of the disputes here even though the claims are capped at S$250,000. The settlement rate is also very high.

In March, the State Courts also launched its Centre for Dispute Resolution that houses the different ADR services. It has seven judge mediators and more than 100 volunteer mediators.

Lawyer and mediator Amolat Singh believes that, for mediation to pick up in Singapore, there must be buy-in from the lawyers first. So, more lawyers should be trained in mediation, he says, adding that people are still flocking to the courts as they lack awareness of the benefits of mediation.

Now that the State Courts have imposed fees for higher-value civil claims, he thinks it is a matter of time before people realise that going to the SMC may be more worthwhile for them.

ADR fees of S$250 per party for District Court cases have been introduced and took effect in May. The exceptions are non-injury motor accident claims, personal injury claims as well as cases under the Protection from Harassment Act.

The SMC is currently focused on expanding its slate of mediators in four key areas – healthcare, insurance, construction and infrastructure, and small and medium-sized enterprises (SMEs) – as it sees room for growth.

But the number of part-time and full- time mediators is rising at a snail’s pace.

Many are concerned with its viability. But this was mitigated last November, after the SMC’s revamped fees kicked in. Fees of principal mediators were raised by about 50 per cent from the minimum daily fee of S$3,000, and associate mediators can now handle cases involving quantums of up to S$250,000, way above the previous limit of S$30,000.

For Mr Kallipetis, the average mediation fee for a case is £5,000-6,000 (S$10,800-13,000) – a range comparable to what some mediators here now make.

Drawing parallels with the UK, Mr Kallipetis says he believes what is needed to spur change is to make it professional misconduct not to advise clients about mediation. “What we did in the UK Bar Code of Conduct was to add a further duty not to mislead a mediator. The Bar Standards Board has revised the Code of Conduct and removed the specific reference to ‘mediator’ and substituted a duty not to mislead ‘anyone’.”

A spokesman for the Law Society of Singapore said there is a general culture in Singapore of prompting parties and lawyers to consider mediation, without the need for a full trial or arbitration.

“For all civil litigation matters filed in court, there is a ‘presumption of ADR’ for all civil cases. Cases filed in the State Courts are automatically referred to the most appropriate mode of ADR unless any or all of the parties opt out of ADR. Litigants in civil cases in the High Court also have to file mediation forms to indicate if they are agreeable to mediate.”

So it’s only a matter of time now, Mr Lim says. “There will be cases which need to be litigated – for example, where an important legal issue is involved, or where a precedent needs to be set. However, the vast majority of cases can be successfully mediated. SMC has a success rate of 73 per cent and most of the mediations can be organised within weeks, and take only a day. If the matter is not resolved, parties are free to go back to court.”

Claire Huang