Overcoming Refusal to Mediate

Even though mediation and other forms of amicable dispute resolution have become fixtures in the Singapore legal landscape, it is still fairly common to find either parties or counsel who resist any attempt to move the dispute to a non-adversarial forum. Short of relying on a contractual clause which mandates that parties must attempt mediation, or relying on the new Rules of Court which requires parties to not unreasonably refuse amicable resolution, counsel still need to overcome various objections.

The most straightforward way to get parties to come to mediation is to show them that litigation is at least not a better, if not a worse, alternative. The economic reasons are usually quite clear:

1. A successful mediation saves time by resolving the dispute before it goes all the way to trial. If done within the first few months, it could create time savings measured in years. Even if it does not work out, it argubaly does not create substantial delay in the long run if parties are willing to clear their calendar for a single day session.

2. It is usually cheaper to resolve a dispute at mediation, though some parties may see it as an additional burden on their war chest. Parties who resist paying for a mediation session are unlikely to have the means to fund litigation to its very end. In any case, there are several options for mediation with different pricing tiers suited to a large range of cases.

However, it is difficult to convince opposing counsel that litigation is a worse alternative by alluding the uncertainty of success, and understandably so.

3. No lawyer will easily admit the weaknesses in their client’s case, especially when their client is looking on. Some parties and counsel may also carry the cultural baggage of perceiving compromise as weakness – although with the new Rules of Court compelling pre-action amicable resolution, such a view should become less common.

4. Similarly, no lawyer will easily admit that they are not prepared to go to trial. On the other hand, it is difficult to predict how the trial judge would perceive a party’s case, and in an increasingly inquisitorial system where the identity of the judge is not known in advance, parties have to recognise that going to trial is taking a risk that the trial judge is prepared to wrest conduct of the case away from counsel. Identifying this factor as being out of anyone’s control makes it more palatable for consideration.

These topics are usually best discussed by the mediator as the person providing a reality check to parties involved, and who being in a neutral and more authoritative position, will get the parties’ attention rather than the opposing counsel. (Relying on judicial comments in pre-trial conferences to move parties towards mediation is risky, as the comments may be adverse to one party, and counsel may not convey in the same tenor.) Of course, this creates a chicken-and-egg problem – how else can parties be incentivised to appear before the mediator to hear and consider such issues?

5. If a party wants certain outcomes which exceed the scope of acceptable legal principles or the court’s powers, then it should be prepared to work towards amicable resolution. For example, damages or monetary compensation would be the usual remedy for a breach of contract, but parties can agree to rectify the defects or make up the shortfall in service standards instead. Instead of the next best thing the trial judge can award, the party can attempt to steer the mediation to their most desired direction.

6. Mediation provides a safe space for direct communication with the other party. Although parties can always choose to meet on a without-prejudice basis, the mediator is in the best position to exert a calming and moderating influence, since it is difficult to expect counsel to play a neutral role and fulfill their duties to parties at the same time.

Although it ought to be easier now to bring parties to the mediating table, lawyers still need to persuade not just opposing parties, but also their own clients that mediation can deliver positive outcomes for them. The effort in bringing others around to be a willing party to mediation can be a mini-negotiation in itself, and getting to the root cause will help to open the door to an amicable resolution.