MediAsian: An Asian Perspective on International Mediation
By George Lim SC, Chairman, Singapore International Mediation Centre
This article first appeared in the 12th Issue of the Korean Arbitration Review, published by KCAB INTERNATIONAL. A copy of this issue may be found here. We are grateful to KCAB INTERNATIONAL for the permission to reproduce this article here.
Introduction – Mediation has Asian Roots
The topic for this webinar is “MediAsian: An Asian Perspective on International Mediation”*. In fact, when we think about it, mediation is indeed very Asian – hence, the portmanteau word: “MediAsian”.
Resolving disputes in ways similar to mediation has always been a common practice in Asia. Let us think about how disputes were resolved in olden days. The Chinese had village heads to settle their conflicts. Before the British arrived, the Indians had the Panchayat system involving village elders.[1] The Malays had penghulus or ketua kampung – village headmen or elders – to resolve issues arising in their villages. And of course, in Korea, village elders also resolved problems for their communities.[2]
However, over time, adversarial methods of dispute resolution – associated with Western legal systems – became transplanted in Asia communities. The litigation process came to be seen as the only way to resolve disputes. Perhaps ironically, mediation itself started becoming popular in the United States in the 1970s and elsewhere, as part of the Alternative Dispute Resolution movement.[3] This movement reached Asia, including Singapore in the 1990s. In a sense, one may say that this return to mediation marks a turning of the clock backwards. Nevertheless, we are, in fact, rediscovering ourselves.
Reflections on Mediating in Asia
The Singapore International Mediation Centre (SIMC) was launched in 2014 as a not-for-profit company focused on the resolution of cross-border commercial disputes. SIMC’s caseload has been increasing over the years – this may be seen as an indication of the growing demand for international commercial mediation.
In 2020, SIMC received 43 case filings – close to double the number in 2019. Since its inception, SIMC has administered more than 130 mediations. Given that the total dispute value to-date is about US$3b, the cases are generally high-value and high-stakes disputes. These cases are mostly cross-border in nature, involving Asian parties. For example, some cases may involve parties from China, India, or Korea, and third-party investors from the United States and elsewhere.
“Asians tend to care a lot more about preserving relationships. And this is where
mediation fits well into the Asian context.”
In other words, we have a fair amount of experience mediating cases with Asian parties. This notion is also reflected in the composition of our mediator panels, which include leading mediators from Asia.
I would say that mediating with parties within the Asian region requires a different perspective and set of skills. If I may say so, there is an advantage to mediating with institutions such as SIMC because culturally, we are more aware and familiar with certain particularities attributed to Asian cultures, which view matters differently from their Western counterparts.
By way of example, Asian parties often place different expectations on their mediators. They tend to expect their mediator to be more active in the mediation process rather than strictly facilitative. Sometimes, there might be an expectation for us as mediators to be evaluative — this may involve providing views on the merits of some aspect of the case — but we are of course careful about doing this. Raising “red flags” is usually a better option.
In particular, face-saving is extremely important for Asian parties. Also, greater respect for authority and hierarchy are factors that we take into consideration when it comes to Asian parties.
Asians tend to care a lot more about preserving relationships. And this is where mediation fits well into the Asian context – the value of mediation is its ability to preserve the present and future relationships between the parties. Harmonious relationships are a key part of our cultural heritage. Even with the rich diversity of religions, beliefs, and views among Asians, the common theme is the importance of peace and harmony.
Ingredients for a successful mediation
To me, mediation is really about people. It is about how to get people to look at their problems openly and honestly. In mediation, parties should feel empowered to take ownership of the underlying issues and the process of coming to a solution. That, for me, is the value and beauty of mediation.
I have been a litigator for close to 40 years. However, personally, mediation provides another perspective and humanises the dispute resolution process. Legal rights are essential, but with mediation, we can go beyond that. We look at each other as human beings.
“Ultimately, I believe, the key is sincerity. The parties must feel that you are genuinely
trying to help them to resolve their problem. If the mediator can show that he or she is sincere, half
the battle would have been won.”
In any mediation, it is important for a mediator to find ways to connect with both parties and to actually connect with them, while still retaining a neutral position.
Another key to a successful mediation is preparation. Before the mediation commences, I find it useful to not only read the mediation statements, but also to conduct separate calls with counsel for the parties to have a deeper understanding of the issues surrounding the case. I find it important to connect with lawyers beforehand as they can provide valuable insights into the underlying issues.
A mediator should also invest time and energy to build rapport with the parties. It is not recommended to rush through the proceedings to achieve a quick settlement. Timing is important; parties are unlikely to give you their best offers at 11 am!
I usually take the morning to try and build rapport and connect with the parties. I start my mediation with a private session with each party, not a joint session with all the parties. I have learned that it is important – whether you are walking into a room in person or connecting online via virtual breakout room – to speak and connect with each individual. By doing so, it will help the parties to feel a lot more assured when they participate in the joint session. The private sessions are where the parties will size you up as a mediator. This is an opportunity for the mediator to gain credibility and build rapport.
Ultimately, I believe, the key is sincerity. The parties must feel that you are genuinely trying to help them to resolve their problem. If the mediator can show that he or she is sincere, half the battle would have been won.
Benefits of Mediating Online
The Covid-19 pandemic has caused severe disruptions to our way of life and has negatively impacted economies. However, the silver lining is that it has forced us to re-think how we go about doing things.
Who would have heard about Zoom a year ago? However, online mediation using Zoom is now commonly used all over the world.
Many Asian corporations are hierarchical in structure. As such, before the pandemic, large corporations that were involved in mediation usually sent middle-level managers to represent them at the mediation. However, these managers were not the final decision-makers, and usually, came with a fixed mandate.
Nevertheless, online mediation offers up new possibilities. With Zoom, it is now possible to arrange to connect directly with the actual decision-makers without requiring them to attend the mediation physically. Even an hour or two with them online may make the difference.
Conclusion
My experience is that Asians are comfortable with using mediation to resolve their disputes. Furthermore, my hope is for more Asian countries to sign and ratify the Singapore Convention on Mediation; this will be good for the business community and our economies. The world needs more peace and harmony!
*This entry is adapted from a transcript of the author’s comments during the SIMC-KCAB International Joint Webinar titled MediAsian: An Asian Perspective on International Mediation on 3 November 2020. The author is grateful to KCAB INTERNATIONAL for inviting the Singapore International Mediation Centre to co-host the webinar in conjunction with the Seoul ADR Festival (2-7 November 2020).
[1] 27 Hamline J. Pub. L. & Pol’y 275 (2005-2006) Mediation: Its Origin and Growth in India, retrieved 26 Jan 2021 from https://heinonline.org/HOL/LandingPage?handle=hein.journals/hplp27&div=16&id=&page=
[2] Peter Robinson, J. Youngjin Lee, J. Kwang Ho Lim, and Ryul Kim, The Emergence of Mediation in Korean Communities, 15 Pepp. Disp. Resol. L.J. 515 (2015) Available at: https://digitalcommons.pepperdine.edu/drlj/vol15/iss3/3, retrieved on 26 Jan 2021.
[3] George Lim, Make mediation your first port of call for legal disputes, The Straits Times (2020) Available at: https://www.straitstimes.com/opinion/make-mediation-your-first-port-of-call-for-legal-disputes, retrieved on 3 Feb 2021.