Mediation: The role of lawyers and why having a center administering the case has its merits

Sharon Lin and Lee Jiale discuss the merits of lawyers as mediation advocates and the importance of administering a mediation through an institution.

ROLE OF LAWYERS IN MEDIATION  

The question of the role of lawyers in a mediation process inevitably arises when one thinks that a mediator, as a neutral third party, is already facilitating negotiations between disputing parties.

This is particularly so given that disputing parties typically play a more central role themselves in the mediation process, with the platform to communicate their key interests to each other directly during the mediation— unlike in litigation or arbitration, whereby the lawyers will be advocating for their clients’ legal positions during trial or an arbitral hearing.

MEDIATION ADVOCACY

The concept of mediation advocacy may help to shed some light on the role of lawyers throughout the mediation process, whether it be pre-mediation or during the mediation itself. Clearly distinct from trial advocacy, mediation advocacy requires lawyers involved in the mediation process to be familiar and skilled in the process, principles and negotiation theories, in order to support the client’s interests while moving the process forward.

This includes:

• Advising clients on the cost-benefit analysis of the mediation process (e.g. possible benefits of arriving at a quicker, confidential and more economical resolution of the matter that better caters to parties’ respective interests; and potential adverse costs orders by the Court for any unreasonable refusal to attempt mediation or other alternative dispute resolution means before engaging in lengthy and extensive court proceedings etc.);
• Providing recommendations/ options of the appropriate mediation institutions and service providers to appoint, briefing the client pre-mediation and preparing the opening mediation statement;
• Supporting the client during the mediation session itself by managing his/ her expectations for reality testing purposes (e.g. providing legal and risk input as to the likelihood of success in other dispute resolution methods and what is reasonably achievable through such other means etc.).

The lawyer can also consider encouraging the client to include a mediation clause in the contract, for parties to agree to refer any future disputes to mediation (either on an ad-hoc basis, or through the auspices of institutions such as the Singapore International Mediation Centre (“SIMC“)).

If involved in the drafting process for the client’s contract at the formation of any contractual relationship, then depending on the nature/ type of the contract and if it is suitable, often, the effectiveness of the process may be enhanced for parties to be open to the idea of private settlement and negotiation at the earliest stage, when they still perceive each other as working partners and before any disputes even arise. 

ADMINISTERED MEDIATION PROCESS

Whether an administered or non-administered approach is more suitable for the parties or dispute at hand is something that lawyers should definitely consider when advising their clients on the mediation process. If the clients are not exactly familiar with the mediation process, going through an administered process may be recommended as parties will be guided and assisted each step of the way.

Generally, mediation centres such as SIMC have wide ranging experience, resources and logistical support to competently administer the mediation of disputes of varying nature, complexity and claim amounts, many of which are cross-border. If parties have no preferred mediators, SIMC is able to assist in identifying a suitable one from their experienced panel of certified international and specialist mediators. Mediation sessions will then be conducted at parties’ agreed venue of choice, such as, for example – Maxwell Chambers. Choosing a neutral venue may also have a psychological impact on parties, as there is a semblance of neutrality in the mediation process. 

With travel restrictions still in place, SIMC can also facilitate virtual mediations during this time. SIMC’s end-to-end support includes coordinating the schedules of mediators, parties and counsel across several time zones, providing detailed briefings and, during the mediation itself, ensuring documents and parties are moved efficiently online. Based on our experience, strong institutional administrative and logistical support during a mediation contribute strongly to the success of these sessions.

In Singapore, the additional benefit of having mediation administered by mediation institutions qualified as a designated mediation service provider under the Mediation Act 2017 (e.g. SIMC, Singapore Mediation Centre, Tripartite Alliance for Dispute Resolution etc.) is also that parties can avail themselves to the expedited enforcement mechanism, where privately mediated settlement agreements reached may be immediately applied to be recorded as an enforceable court order by consent in Singapore (subject to certain requirements being met).

Now that the Singapore Convention on Mediation has come into force on 12 September 2020, commercial parties in cross-border disputes will be able to seek enforcement of their international mediated settlement agreements by applying directly to the courts of the countries that have signed and ratified the treaty. These countries are: Singapore, Fiji, Qatar, Saudi Arabia, Belarus and Ecuador.

ENDING REMARKS

Mediation enables parties to resolve their disputes efficiently without jeopardizing existing commercial relationships. Moving forward, we can expect mediation to grow in favor among businesses especially as the pandemic period has disrupted much of normal commercial life. Furthermore, with the Singapore Convention on Mediation, parties have greater assurance about the finality and enforceability of their mediated agreements. When administered by a center such as SIMC, the entire process is all the more seamless, efficient, and fuss-free.

About the Authors

Sharon Lin | Partner, Litigation and Arbitration | Withers KhattarWong LLP

With more than a decade of litigation practice, the focus of Sharon’s work is on both the contentious and non-contentious aspects of insurance where she advises and acts for major insurance companies in Singapore in various classes of insurance. Sharon is an accredited Mediator with the Singapore International Mediation Institute and a Fellow of the Singapore Institute of Arbitrators.

Lee Jiale | Associate, Litigation and Arbitration | Withers KhattarWong LLP

Jiale is an associate in Sharon’s team and her work includes civil and commercial litigation matters, in matters relating to contract, tort, insurance and professional indemnity.