Mr Gregory Vijayendran SC (Greg) and Mr Yoshihiro Takatori (Yoshi-san), SIMC Specialist Mediators, were co-mediators in a cross-cultural, cross-jurisdiction dispute administered under the JIMC-SIMC Covid-19 Protocol. The mediation, held fully online, enabled all mediators and parties to dial in from their respective locations. The mediation was planned for three days but parties found closure and reached settlement in a matter of two – thanks to the able teamwork and facilitation by Greg and Yoshi-san.
We are grateful to Greg and Yoshi-san for sharing their views.
Catch up on the interview here or read the full transcript below:
Q: Tell us about the case you mediated.
Yoshi-san: Of course, we cannot disclose the detailed substance because we have a confidentiality obligation. But the structure is a joint venture dispute between a Japanese company and an Indian company, which is a cross-border, cross-jurisdiction, cross-governing law and cross-culture. So it’s a very nice online protocol and operation, which includes a very efficient combination of the joint session and a private caucus session, in which we could pick up the client’s common interests seeking and also we could persuade the clients on how to try to reach a win-win type of resolution with Greg-san’s very strong and very respectful initiative with my assistance, and that’s really a good experience.
Greg: What was unique about this particular mediation quite apart from the online modality, and of course, the cross-border nature and the different cultural nuances to navigate is that we also needed to navigate different legal systems that the professionals before us hailed from – and we had very strong legal professionals. And the wonderful thing – even though they hailed from different traditions is that I think there was a genuine commitment all round to finding a solution together. And that collaborative teamwork at an international level, by client, by counsel, and of course, ably co-facilitated by Yoshi-san and myself, I think made a big difference because we may be separated geographically yet we were united with a resolve to try and bring about an alternative resolution.
Q: Describe a critical turning point that put parties on the road to settlement.
Wee Meng (WM): Maybe you can talk about the pre-mediation or the mediation within that three days; what was the success factor, and more importantly, the turning point where you felt the parties were able to turn it around to see how the matter can be resolved.
Yoshi-san: It was the pre-mediation function that worked very well, to be prepared for how to start the actual mediation. One thing is the parties’ mindset. Usually, including their counsels, they are in a sort of fighting mindset first, because the case was moved from arbitration. But Greg-san and myself had explained that, “no, no mediation is not that.” Mediation is to seek for common interests between common parties; not only legal interests, but also for commercial interests, as you mentioned. And also for how to proceed with the future business, even if they are, you know, sort of finished with that relationship, or they will continue their relationship, whatever; such sort of an amicable resolution would be helpful either way.
So that kind of mindset, the explanation was understood by both parties and quite good counsels. That was the first change in the turning point of this case. And third, I’m calling it the Greg and Yoshi Schedule, in which we showed which portion the parties had agreed or not yet agreed, and the parties can actually realize that they are progressing. They are on the way to reaching the amicable point in which they can achieve their common interests. So such sort of a Greg and Yoshi Schedule showing that the parties were on the same page. That was the turning point at the actual mediation.
Greg: As Yoshi-san has also mentioned, we developed a schedule, and we were quite intentional in the way we developed the schedule – to start off with where the parties were in convergence zones or you know, basically, had agreed. And so by basically showcasing the quick fire wins or low hanging fruit, where parties were already on the same page and agreed and dried and dusted. It was a question of how we move from there to the more contentious areas. And by using that as an aide memoire, we were able to build from one peak to another agreement wise. The other, I would say, game changer or maybe turning point is the fact that all this was happening during the heights of the COVID-19 transmission.
And so, in that sense, when parties begin to reflect on the impact of COVID-19 on all of us including the economy, then it underscores the commerciality of trying to find another resolution that allows parties to get back to doing what they need to do in terms of the business aspects so that they can keep the ships stable or try and operate in a very, very difficult external environment economically and not waste too much time in court processes which can be draining your energy or resources and diluting your focus. And that was one of the, I think, strong cards that we also tried to play in the course of this mediation.
Q: What are the benefits of having co-mediators in a cross-border commercial dispute?
WM: Maybe let me ask the question: how is to better than one? So we know that in mediation, often it’s just one mediator. In this JIMC-SIMC Joint COVID-19 Protocol, we came up with a slightly different approach. We said, hey, maybe having two mediators would be more helpful, especially for a cross-border case. How is two better than one?
Greg: In a sense, you had the best of both worlds here. You have Yoshi-san who’s highly respected in his legal system and essentially drawing from in civil law tradition. And I have the background in terms of the common law tradition. And then we also had the advantage of language because in the case of Yoshi-san, what was an added plus was his ability to speak in the language that the Japanese party may be comfortable with, certainly, some of the decision makers, and I think the willingness to offer that to help bridge some of the linguistic differences, I think, was excellent. And likewise, although I had an easier task because the Indian party had essentially the ability to converse in English. Yet you can see that there’s a little bit of a cultural affinity both ways.
I think one aspect that we were super intentional about was in all our communications to both parties and even jointly, we were united. We were collaborative. And I think that was critical because we didn’t have a situation where, for example, the Japanese party may view Yoshi-san as their advocate and then they go to him, or the Indian party would view me as the advocate and then they go to me, and we end up then divided. But we were completely united.
Yoshi-san: Although the parties might have been expecting both mediators to work as a messenger or a translator, as Greg-san has mentioned, we did not choose such an option. We chose to be on the same page and as co-mediators functioning as one strong unit. And I think for this case, that worked. And also as Greg-san mentioned, we could utilize each other’s legal background and cultural background. We should not disclose the contents of this case but sometimes the party’s way or attitude and approach to negotiate could be different. And in such a case by utilizing each mediators’, each of our backgrounds – legal background and skills, that’s really helpful. So, that’s the one advantage for co-mediation, I felt.
[Update: Extended version continues from here]
Q: What more can be done to promote mediation in the region? Any final thoughts?
WM: One last question for both of you, which is, if you are able to communicate or express or convey your wish list to governments around the world, whether it’s Japan and Singapore, in India or other places, what would be some of the things that you would like to convey to governments in terms of promoting mediation, making it more accessible, access to justice, etc. So maybe I’ll start with Yoshi-san.
Yoshi-san: The Japanese government and Japanese practitioners should learn a lot from the Singapore style. But on the other hand, on the Japanese side, it would be helpful for cross-border mediation to benefit from Japanese experience and Japanese initiative. So for example, based on Japanese civil law type of legal system, we have a combination of expert(s) and mediators in a mediation, which is, for example, taken leave by the court or judges. And that can function quite well, especially for high tech-related dispute resolution, which includes high technology experience and skills by the expert, but they need legal professionals, like judges. So such an experience should be important for cross-cultural, cross-border mediation, or a combination of mediation and arbitration. Although I understand between civil law and common law, we have an understanding gap. For example, whether confidentiality should be applied to the mediation.
But just as we did for this mediation, we can utilise the advantage points from the Japanese Government, the Japanese judges court system and the Japanese civil law type of operation, and Singapore type, which is very brushed up and sophisticated mediation and arbitration, and a combination of arbitration and mediation. So in that sense, I think the Japanese government should contribute more to the Singapore’s activation and promotion of mediation and arbitration. And, of course, vice versa. In that sense, in terms of the amicable culture and attitude, there is a long history in Japan. Japan may have more input in the mediation and arbitration field. For example currently, UNCITRAL and the Israeli government are working with the Japanese government, probably on how to brush up the high technology dispute resolution. So for that purpose, I think that those government initiatives and practitioners’ initiatives should be very, very important.
Greg: I’ll add three additional points to what Yosh-san has touched on, which is definitely valuable from the point of view of the international cooperation aspects. I would say first, mediation is no longer alternative dispute resolution, but appropriate dispute resolution. And it’s the first port-of-call that counsel and in-house counsel need to consider. That means, for instance, appropriately tiered dispute resolution clauses, mediation clauses and trying to examine, at an escalated basis, negotiation and mediation models as a first tier or first step, even before you take steps to more formal adjudication processes. That should be seriously considered.
The second point I’d make is that I think the sky is the limit with online mediation modalities. And I’m truly excited about the possibilities because if you think about it, this was a resolution that you can only dream about 10 years ago with this successful mediation outcome that we had under SIMC-JIMC be possible, the technology may not have permitted it. And maybe the infrastructure wasn’t there. But today it’s there. And what we were able to do, if you think about, was everyone Zooming in from where they were, and some of the parties were in their homes, you know? And in the comfort of your own home, and you can Zoom in from any part of the globe. And that’s the power and the potential pivot of online mediation modalities. So I’m truly excited about the potential, both not just in terms of what might be a submission to mediation pursuant to agreement, but also ad-hoc agreements to submit disputes for mediation.
The third and final point is: it is also the Asian way. And so in this case, when we had Indian parties, Japanese parties, and you know, time will fail me to build on the brilliant and erudite wisdom shared by people like yourself and George and others about the history of mediation and how you can trace it back from a civilization point of view, but it gives face to the parties and face is critical. The reputational risk to the parties if a matter is litigated, it’s reported in the media; and the fact that it takes a long while to salvage some of the reputational issues if things don’t go well. And so it’s a tool to manage reputational risk. It’s a way to give face to the parties. And so to me, mediation is the way of the future.
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.