Ms Kim Sae Youn, Partner, Kim & Chang, and SIMC Specialist Mediator (Korea) was a mediation advocate in a dispute that was referred to SIMC for mediation. The mediation was administered in South Korea and fully supported by SIMC. The dispute was settled in a day – the settlement agreement signed at midnight. Here, Ms Kim shares how her client benefitted and why mediation should be one of the foremost considerations for any given dispute.
We are grateful to Ms Kim for sharing her time with us.
Watch the full interview here or read the full transcript below:
Q: How did you become involved in mediation?
Sae Youn (SY): I started out my career in law as a judge. And I started out my career in the courts, when the Korean court was getting interested about mediation. So we had the first civil mediation act enacted in 1990s, early 1990s. And the court was supporting mediation and encouraging parties to mediate from around 1996. So I was involved in mediation as a mediator being the judge. So I actively mediated some of the cases I had when I thought they were suitable. Mediation is very active in Korea, regarding court-annexed mediation until today. I understand we have about 60,000 cases of court-annexed civil mediation, back in 2019, that was the record that we have.
Q: Tell us about the case that SIMC administered in South Korea, where you were a mediation advocate.
SY: That was about a JV dispute for which we had a pending arbitration. And it was done in a very different way from the usual mediations that I was used to, because it was done in a full facilitative mediation. So the mediator was the facilitator; he listened to both parties and he would only deliver what we said he could deliver to the other party, but at the same time here, in full confidence, about our real desire or wish list. So that was a fully facilitative mediation, and we started early in the morning, but we were able to actually finish it within the day.
Wee Meng (WM): Within one day?
SY: Yes, within one day. And we were very ambitious to set just one day for the mediation, but we were able to do it. And actually, the parties were able to agree on a settlement agreement that had clauses and means for them, which were not something that they could seek as a result of their arbitration. So the parties ended their dispute very early on – at least one year, before the anticipated arbitration proceeding could close. And as a result, they could move on with their business, very early on.
WM: So they actually saved at least one year, compared to going to arbitration, that’s substantial savings and time, and cost as well.
SY: And cost. Yes, yes.
WM: So have you kept in touch with this client? How does she feel about mediation after all this time that has passed?
SY: Yes, my client was very tough business woman in Korea, and she had built a business, she’s really tough and really strong. This experience was actually something totally new for her and she really agreed to do it, because I think she had confidence in our advice that this was going to be very helpful for her company. And because the result was good, she now is a close personal friend of mine, as she really does think the mediation was a very, very special gift for her and her company, because she could do something else once the dispute was over.
WM: Has, in that sense, this experience in mediation, has that changed your practice the way that you have looked at disputes? Maybe you can elaborate a little bit on that?
SY: Yes. As I said, I was used to mediation even before this, but not in an international arbitration context. So for international arbitrations, I thought going to the award in the end was the only way I could actually pursue the case. But after this experience, I have made it a rule to myself to at least re-visit the issue of whether shall we settle through a mediation in the middle of an arbitration? Sometimes the client would say no, sometimes the client would say yes. So there are different outcomes. But I still think it’s a good idea that the lawyer looks at mediation again, in the middle of the dispute.
Q: In cases where mediation turns out to be unsuccessful, do you think the client still benefits from mediation?
SY: Yes, I think so. Because if the client has been earnest in doing whatever it could, and still they could not settle, then I think it gives the client at least a comfort that there was nothing else they could do more. So they have to accept the consequences of the litigation or arbitration, and it is sometimes what you exactly need, because you don’t want to go back later. And, you know, you don’t want to get the award later and start thinking about, “should I have settled? Should I have done this should I have done that?” Even from that perspective, I think it is very crucial that you sit down with your clients at some point in time, which you think is appropriate in the middle of your dispute. And then at least consider mediation really seriously.
Q: In your experience, what are some benefits of mediation for a cross-border commercial dispute?
SY: Especially international disputes, I usually represent Korean clients or Asian clients. And if our client is fighting against a Western client, for example, because the parties are coming from very, very different cultural backgrounds, I would say, to have a mediator, somebody, you know, third party neutral, who listens to your whole case in full confidence and delivers only what you ask him or her to deliver to the other party, and that person does the same for the other party’s request as well.
That is a way of sort of, I would say, avoiding throwing balls to the other party in the dark. And so you will be able to settle your case without hitting each other. And that is only possible because there’s a third party neutral in between, and that third party neutral can actually be the translator of cultural differences.
So if you sit against the other party in a meeting room, there’s no way to move more than one step. But if you utilise that third party neutral, you can actually tell all your story, and be able to know whether you can actually settle or not without having to open your heart to the other party.
This interview was first launched at the inaugural UNCITRAL Academy 2021 Industry Capacity-Building Workshop on 7 September 2021 organised by UNCITRAL and the Singapore Ministry of Law, and supported by SIMC.