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Mark Goh

Ong Boon Chong

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Meet The Authors

Mark Goh

Ong Boon Chong

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Mediation During The Pandemic And Beyond

Ong Boon Chong | 3 min read | September 2020

Be it through pressure of confinement, non-fulfilment of obligations in a contract, unemployment or divorce, global citizens have felt the weight of this pandemic both at home and at work. The ground has shifted from under our feet and both people and corporations have increasingly turned to mediation to sort out their differences. Here are some of the reasons why mediation has led to better outcomes:

1. Moving away from winner-loser absolutes – creating the win-win
Litigation is known as an incredibly hostile court environment where you are represented by a lawyer and the matter is adjudicated by a Judge. To some extent the Judge’s hands are tied by written law and precedent when it comes to the relief that he is allowed to grant the Plaintiff (the person suing) in any given lawsuit.

In contrast, mediation is a less formal, voluntary process where a neutral third-party mediator assists you (at times with lawyers by each party’s side) to find common ground and negotiate a settlement. Parties are free to agree on the terms of settlement, and the scope or structure of any such settlement is not restricted by written law or precedent. This gives you substantial control over the process and can lead to more satisfying, and even mutually beneficial outcomes.

2. Keeping the details of your dispute confidential
Integral to the mediation process is the understanding (which is usually reflected in a written agreement) that every participating party, including the mediator, is not to disclose the details of your dispute to any other third party not involved in the mediation. This ensures that you can keep your conflict and disagreements private and away from the glare of the media (newspapers, television etc.)

3. Moving from a focus on the past to a focus on the future
One of mediation’s prime advantages is its potential to preserve the relationship between parties. You might find it too extreme to sue a close friend, colleague or family member with whom you’ve fostered a long and meaningful relationship with. Identifying your differences and inserting mutually agreed terms which enable the relationship to subsist within the settlement agreement is something that allows parties to focus on the future.

4. Cheaper and quicker than court litigation
Mediation is often offered at a fraction of the cost of full litigation proceedings. Instead of having your lawyers file documents and run the case for what could potentially end up being a few years (and being charged for their time) – the entire dispute process can end as quickly as within a month (for cases which are not too complex).

5. Shifts in the national and international dispute landscape
The onset of COVID-19 has caused the Singapore government to impose, among other things, a temporary moratorium on certain types of legal actions and temporary changes to requirements for insolvency and bankruptcy proceedings. Parties who have been forced to hold back on commencing a lawsuit also face the issue of increasing court backlog due to how the pandemic caused the Courts to postpone hearing dates.

All You Need To Know About Negotiation, Mediation, Litigation And Arbitration

Mark Goh | 10 min read | September 2020

As a dispute resolution lawyer of more than 26 years, the most common question which I get asked is the difference between negotiation, arbitration, litigation and mediation. I understand why such a question may be important. Knowing the answer helps my client decide which option to choose. I must admit there is no easy answer to such a question. Why is this the case?

It is likely historical on account of traditional law school training systems. I recall, my training as a barrister in the UK, was mainly to teach me court litigation skills. This is the traditional method by which disputes are resolved. Through the years, alternative forms of dispute resolution mechanisms have developed. Negotiation and mediation skills were taught mainly either in Business Schools or Schools of Social Sciences. Much has now changed. I am glad to see that many law schools, especially here in Singapore, have incorporated mediation skills into their curriculum. I am confident that in the years to come, negotiation skills will come to be taught as well.

Having the formal training in all the 3 skill sets, I now offer an explanation of their differences. For arbitration and litigation, it is the art of presenting evidence and the law to a judge or decision maker. Arbitration is usually a selected choice where one of the parties is foreign and/or parties desire to keep the contents of the dispute confidential.

Negotiation is the art of communicating with the other side so that a mutually acceptable outcome can be achieved.

Mediation takes place when the parties appoint a neutral third party to facilitate the negotiation process.

What is Mediation And Its Process?
The Mediation Process is like a confidential meeting between disputing parties with the assistance of a neutral third party (who is also known as the “Mediator”). The Mediator will not be involved in later court proceedings should mediation fail. Unlike a court setting, mediation is less formal and is conducted in a more informal setting. The role of the Mediator is not to determine who is right or wrong. Instead, the Mediator’s job is to facilitate the meeting and help parties to uncover the root causes of the problem. Hopefully, parties will voluntarily and by themselves come to an agreement.

I have often been asked whether parties themselves can try to negotiate themselves without a Mediator? After all, many would say the ability to negotiate is instinctive and we are born to negotiate. While seeminly so, the actual process and skills are not instinctive. A trained Mediator, using formal techniques and following a process will likely yield a better result than someone who is doing this instinctively.

Typically, the mediation process involves 4 parts. The initial steps are to identify the issues, explore and generate options. At the same time, the Mediator will also encourage parties to communicate with each other. The final part is where the Mediator will facilitate parties to voluntarily arrive at a settlement.

The Difference Between Appointing A Mediation Service Provider vs A Direct Appointment
Parties have the freedom to choose between appointing a mediator directly or let a service provider like the Singapore Mediation Centre choose one for them. Section 12 Singapore Mediation Act allows mediated settlement agreements to be converted to court orders only if the agreement was mediated through an accredited service provider or where the mediator is a certified mediator.

This does not mean that other types of mediated settlement agreements cannot be enforced by the normal court process. They will take longer than the Section 12 route.

Cost Differences Between Mediation, Arbitration and Court Litigation
In terms of cost, it is plain to see that negotiation is the least costly way to resolve a dispute. Moving up the scale will be mediation and lastly arbitration and court litigation. Ironically, in my experience, nearly all of my clients come to me asking for assistance in arbitration or court litigation. They make the assumption that the other party (or their lawyers) are “bad people” with “bad motives”, therefore negotiation and mediation are not possible.

Usually, parties will share the cost of a private mediation session. The cost includes the mediator’s fees, as well as rental fees for the meeting room.

Online Mediation Trumps All – High Chance Of Success And More
The recent covid-19 pandemic has accelarated virtually working methods, online mediation included. This process can be conducted using digital platforms like Zoom, Google Meet, Microsoft Teams and the various breakout room functions within each platform. This method of conducting the mediation allows parties to come together virtually from different time zones and from across the world. The outcome of this method is no less effective than a physical one.

Small business owners often tell us that they try to reach a settlement through informal discussions with the other party, before going to trial as a last resort. However, and as can be seen in the above diagram, mediation is both a cost-effective and principled manner (provided it is done in a formal way) in ending a dispute early, without sacrificing the commercial interests of all parties to the disputes.

You pay much less than you would for bringing the suit to trial. On a conservative estimate, it will cost you 5 x more to litigate than to mediate. Of course, this depends on the complexity of your case and the lawyers you chose to hire.

You spend much less time and effort in the dispute on the whole. This also means less stress of having to create a better case for trial by sorting out your documents and finding reliable witnesses and also waiting to find out whether the judge will rule in your favour. It also frees up time and head space for you to do what actually matters to you – including running and expanding your business.

You have the opportunity to create an agreement that addresses other issues and concerns and to create an outcome which the court may not have the power to order. It is more than just compromise or meeting each other in the middle. For example, the court cannot order someone to apologise to you for making defamatory remarks, but mediation gives you the opportunity to raise such concerns and find a way for the other party to recognise that your feelings have been hurt.

With more than 26 years of experience in dispute resolution, we dare say we have more than 90% success in resolving cases by mediation (whether physically or virtually conducted).

The Difference Between Mediation And Litigation

Mark Goh | 3 min read | August 2018 |
This article was first published in TechInAsia.com

1. Why is mediation the best recourse for startups in specific situations? What situations are these?
2. What do startups need to keep in mind (i.e. key takeaways) regarding mediation?

My firm, VanillaLaw, has made small-medium enterprises (SMEs) and startups the focus of the business for more than 26 years. Every time a client comes to us with a legal matter that involves them wanting to sue another party, or they are being sued by someone else, my advice is always to consider other options before choosing to litigate.

The most common legal situations that occur with SMEs and startups usually involve some form of dispute pertaining to legal agreements (or lack thereof), defaulting on payments/fees, or different views on contractual/business obligations. Very often, emotions run high, and the temptation to want to sue is also high. I have found that many business owners, especially if they have never been in a legal situation before, think that suing somebody is a straightforward affair. The reality is quite the opposite. Litigation is the most time consuming and costly form of legal action. As such, I usually recommend that my clients consider mediation first, and there are three simple reasons:

1. Cost
Cases that have to be litigated at the High Court level are the most expensive. In Singapore, if the dispute involves an amount which is more than SGD$250,000 it has to be litigated in the High Court. How this amount is derived is determined by either
(a) the amount of money that is being contested, or
(b) if there is no immediate sum that is clear, the value of the shares

For SMEs and startups, it is not uncommon for a case to be litigated at the High Court because there are usually multiple investors and shareholders involved which results in the value of the shares being on the higher scale. With multiple fees that need to be paid for litigation, one can expect to spend anywhere between SGD$150,000 to SGD$500,000. Whereas, in mediation, cases at the High Court level would only cost around SGD$15,000 to SGD$20,000.

2. Time Taken
Litigation is a long and tedious process. There are multiple stages to the litigation process from the gathering of information, to preparing the documents, to filing the application, to waiting for an available date from the courts, etc. In the most ideal of situations, a case that is litigated in the courts will take at least 2 years from its beginning to the receipt of a judgment. The reality is that most litigation cases take between two years to four years to complete because of the multitude of procedural matters to handle.

Conversely, mediation would take around a month or so of preparations which can culminate in a single day of mediation. If required, more sessions can be arranged. The time difference is immense.

3. Subject Matter
The final reason is the level of complexity of the technical legal issues. When it comes to legal matters surrounding businesses, these usually fall under the Companies Act which is actually complicated and highly technical. These cases require a lawyer who has enough experience and/or has access to the required resources and manpower to research and find the needed information. It becomes a technical matter where the more experienced and/or skilled lawyer has to determine the outcome of the case. Needless to say, the time needed and costs involved automatically increases as well.

Mediation is a different process because it allows the people involved to address their dispute amicably by creating an environment for that purpose.

The rule of law in Singapore is renowned worldwide, but the law is ultimately an artificial construct that removes the “human-ness” from a situation. My clients have told me that the litigation process is very “dehumanising” and often, they do not understand what is going on. At the end of the day, it is really just watching the lawyers argue with each other in a courtroom, while they sit quietly by the side.

Mediation allows parties to bypass all that, which is a great alternative for clients who do not have the ability to spend exorbitant amounts of money on legal fees.

Therefore, what should you keep in mind before entering into any kind of contractual relationship with anyone? Always make sure you have a mediation clause. This is a binding agreement between the parties to opt for mediation as the first choice in the event of a dispute. When parties are upset and emotions run high, it will be too late to get them to agree to mediation.

These articles are for information purposes only and should not be treated as legal advice.

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