Navigating Complex Disputes: The Power of Mediation Advocacy
In the realm of resolving commercial disputes, mediation advocacy emerges as a pivotal force, offering a pathway to optimal settlements while fostering collaboration among parties. This transformative approach, as showcased in a recent case study, underscores the shift from adversarial stances to a mutual pursuit of mutually beneficial outcomes.
Amidst the backdrop of the Covid-19 pandemic, a contractual dispute unfolded between a renewable power generation company and its overseas module supplier, marked by delays and contentious negotiations over modified terms. The power generation company initiated arbitration proceedings at the Singapore International Arbitration Centre (SIAC). However, both parties harboured a desire to preserve their business relationship and explore alternatives.
Despite the absence of a mandatory mediation clause in the underlying contract, the counsels on both sides recognised the potential of mediation to streamline the resolution process and minimise costs. Through the SIAC-SIMC Arb-Med-Arb Protocol, they seized the opportunity to engage in mediation, facilitated by the Singapore International Mediation Centre (SIMC), within a remarkably short timeframe.
For the power generation company, represented by Mr N Sreenivasan SC of K&L Gates Straits Law LLC, the decision to embrace mediation hinged on the prospect of enforceability and the desire to safeguard their commercial interests. By leveraging the Arb-Med-Arb Protocol, parties could ensure that any mediated settlement would carry legal weight, providing a tangible mechanism for enforcement under international conventions.
According to Mr Sreenivasan, “The nature of the case was such that a commercial settlement was possible. Due to the history of the relationship, client wanted to be able to enforce the settlement if payment in accordance with any settlement was not made. So we advised them to go for Arb-Med-Arb [protocol].”
Equally compelling was the module supplier's perspective. Beyond the allure of cost and time savings, the supplier recognised the potential for mediation to pave the way for renewed business collaborations. The mediation process, facilitated by a skilled mediator, not only fostered dialogue but also instilled confidence in the parties, ultimately culminating in a swift and mutually satisfactory resolution.
Counsel for the supplier, Ms Jennifer Lim of Sidley Austin explained: “The client desired to settle the dispute in order to resume and foster a good business relationship with its vendor, and also to avoid the uncertainty associated with an adversarial dispute resolution proceeding.”
Once clients on both sides agreed to mediate, their lawyers put aside their adversarial battle plans and switched modes. Their exemplary conduct as mediation advocates drew praise from the mediator. To save time even while one counsel brought the proposal to mediate to their client, the other counsel filed a preliminary mediation request with SIMC so that the mediation could proceed as soon as practicable. The mediation was held the following month.
The best mediation advocates are those who are skilled in presenting their client's position, needs and interests in a non-adversarial way. They guide their clients to actively negotiate and shape the outcome of their case. In this matter, the counsel agreed to allow the two lead executives from each party some personal time with the mediator. This allowed them to discuss settlement terms and explore future collaboration. The mediator's adept guidance and inclusive approach empowered parties to collaboratively craft a binding settlement agreement in a single day, defying the conventional timeline of dispute resolution. From assessing the viability of claims to navigating nuanced business relationships, mediation emerges as a dynamic and client-centric process, guided by the expertise of legal counsel and the facilitative prowess of the mediator.
“The mediator’s explanation of the mediation process in the beginning was extremely helpful, and his approach of getting the parties to contribute to the discussion of what mediation could achieve was particularly effective as it made the parties engaged and optimistic about all the benefits of a successful mediation. It also gave the mediator credibility with the parties, so that my client would listen to him whenever he weighed in on the reasonableness of the counterparty’s request,” added Ms Lim.
What would originally have taken months or even years, was settled in a single day. With the assistance of the mediator, and the lawyers, parties were able to draft a legally binding settlement agreement that would best meet both their interests.
In conclusion, this case study exemplifies the transformative potential of mediation advocacy in navigating complex commercial disputes. By embracing collaboration over confrontation and prioritising mutually beneficial outcomes, parties can not only resolve disputes efficiently but also lay the groundwork for enduring business partnerships.
As models of mediation advocacy, Mr Sreenivasan and Ms Lim offer a compelling testament to the power of dialogue and cooperation in resolving conflicts that ultimately served their clients' interests.