Thomas J. Klitgaard argues for the introduction of more than one mediator in a complex mediation, one who is familiar with the intricacies of the culture and law of the land.
With the increasing rise of nationalism in Asia, law firms and businesses should consider the use of dual mediators in Singapore. This is not meant to refer to “duel” mediators, but rather cooperative mediators who would help parties bridge the gap between the cultures and laws of their respective countries, where the headquarters of the parties (their homes) are different.
A simple reason for this suggestion is that all of us foreign mediators are products of our environments. Though perhaps politically incorrect to say so, this often includes a culturally conditioned way of thinking which may cause unease in either or both parties where only one mediator is involved.
For any mediation process to be successful, regardless of whether there is an eventual mediated settlement, each side wants to be sure that there is a good chance that it will be understood before it goes to the expense and time of mediation, and that it will not be “home-towned” or blindsided by the lack of knowledge of a mediator from another country or from the other party’s home country.
A single mediator from a neutral, third-party country is a step in the right direction but this is not enough. That mediator would not necessarily, or most likely would not, be fully in tune with the laws and outlooks of the parties from countries other than her or his own.
A successful international mediator is kind of like a psychologist—someone who is open to many views and who is sensitive to perceptions. Often, this may be difficult for an international mediator who is from a different culture or educational background from one or both of the parties.
Why not have a tandem of mediators in difficult international disputes involving parties of different nationalities? Mediators could exchange ideas with one another as to what he or she had heard and what it meant to the parties. Each party would select a mediator of its nationality. If the mediation failed, each party would be no worse off than before but would have the comfort that it was talking with someone who might have understood.
The tandem would obviously cost more than a single mediator, and the mediation might last longer because of the give-and-take and exchange of ideas between the mediators. However, I believe that this would perhaps be more innovative and more productive than the use of a single mediator.
Confidentiality of the mediation could be less of an issue because each side would have an advocate as to confidentiality if one or both of the mediators wanted to be hired again and did not want to be charged with a misstatement as to what was intended to be, or not to be, confidential.
In reviewing the draft of a settlement agreement, each of the mediators would be looking at the words through a separate, country-specific perspective of the language and idiom. This too, would build comfort and credibility in the process.
Finally, emerging self-interest nationalism would be a motivating factor for tandem mediators, particularly where significant money or intellectual property interests were at stake.
In Beyond Good and Evil, Friedrich Nietzsche tells us that “it is not the least charm of a theory that it is refutable.” The above is just a theory but perhaps the theory may make sense to some extent, especially for parties considering mediation for an important commercial dispute under the procedures of the Singapore International Mediation Centre.
To avoid abuse of the tandem process, there should always be a specific time limit and specific date deadline for completion of any commercial mediation with tandem mediators.
Thomas J. Klitgaard is an experienced American mediator. He is also on SIMC’s panel of international mediators. He has experience in finance and intellectual property. As a sideline, he mediates disputes between the police and members of the public in San Francisco. He has taught courses on Asian Legal Systems and more recently a course on Chinese Business Law at the University of San Francisco. Email him at firstname.lastname@example.org.