Ong Boon Chong
In this episode, we’ll be exploring a crucial alternative to litigation that has been gaining traction worldwide – mediation. Mediation is a form of alternative dispute resolution where a neutral third party, known as a mediator, facilitates settlement talks between disputing parties to help them reach a mutually acceptable settlement agreement. Unlike a judge, a mediator does not impose a decision against the will of one, or both of the parties. Instead, a mediator assists the parties in understanding each other’s perspectives to close the gap and facilitate a settlement of the matter. It is by design, an open dialogue which encourages parties to work together towards a solution that everyone can be satisfied with. Mediation works because parties have more control in such negotiations and can come up with creative solutions that zero-sum game judgments do not provide in hostile litigation. In our very active practice of mediation, we have many examples of such creative solutions.
One very illuminating example from our mediation experience comes to mind, we represented a rather well known F&B restaurant which had been sold to a new owner. The previous chef owner then proceeded to open a competing stall and made statements on local media, claiming that the cooking methods used by the new owner were inauthentic. Instead of having to go through 1 to 2 years of litigation in the Courts to prove defamation by the previous chef owner, parties went to mediation and the chef owner agreed to clarify the untruth in his statements hrough local media channels and to issue a written statement to be published by both the parties in our client’s restaurant. This brought a very quick end to the heated disputed between the parties.
However, the more important moral of this story is that such an outcome is not the type of outcome that would be possible if you were to sue the counterparty in Court, as the Court would only determine whether the other restaurant had defamed our client or not, before quantifying how much compensation the counterparty should pay to our client for such defamation.
Whilst the mediation took about a month in lead-up preparatory work before a full day in mediation, the Court process would have taken 8 – 16 months on average to finish adjudicating the dispute, time that may have been better spent focusing on growing your business. This does not take into account the legal costs incurred preparing a matter for trial, and the blow that your business’s reputation might take from the publicity of a public trial of the matter. All-in-all, you have to take all these factors into account in deciding whether having a go at mediation would be the better choice before you sue to enforce your rights. In our experience, the answer is often a clear, resounding yes. An opportunity mediate, once secured is also often that one golden opportunity, where you actually get to see and talk to the other party, and our clients do all they can to not squander that opportunity. Especially because it is often the case that the next time you physically see the other party is at trial if the matter is not settled. It is because our clients trust us with that responsibility that we’ve managed to secure a settlement in around 80% of the cases we’ve brought to mediation.
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