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3 things to do for constructive mediation

3 things to do for constructive mediation

3 things to do for constructive mediation 促进庭外和解的3个行为

I attend mediation regularly with my clients. Thanks to what I've learnt from Roger Fisher and Joel Lee, and with the help of well-trained mediators (and hopefully my learned friends), I manage to reach settlement about 80% of the time (to the extent that it's adversely affecting my firm's bottom line, but that's another story for another day).

However there are some things which gets my goat, despite the mediation-friendly climate and the breadth of available training and resources a lawyer (or an appointed mediator) can get if he or she is serious about finding a solution for their clients. In no particular order:

1. Stop entrenching into legal positions. We are all lawyers. We have seen each other's pleadings and maybe some of the evidence. There is no need to continuously debate about the merits of either side's case - save that for the trial judge. If you can come right out and say what your client desires, we could save a lot of time (even if it means finding out that there's no zone of possible agreement right from the get go), and start brainstorming about how to resolve the current dispute.

2. Let the client talk. I get that we get paid to advocate and argue for our client. But since your client is already here, let them share their perspective, and we might all learn something new about what motivated them to start proceedings, or whether they have other issues that they wanted to address. We could walk away with a better outcome than what a court could provide, and with less bruised egos too.

3. Consider that there is usually more than one way of resolving the problem. To be fair, this is not a huge problem, but I would like to avoid having my client triggered by the perception that the other side - or sometimes, the mediator - is trying to force a solution down their throat (and vice versa). This becomes a bigger issue when a position becomes mistaken for an underlying interest, and parties can only see one way out because of how events were framed.

Despite encountering these issues fairly regularly, I still enjoy mediation. It satisfies my desires to solve problems, it reduces billing fatigue for client and everyone can move on to doing the things they want to do instead of being stuck in court (which probably only lawyers want, and even then maybe not all of us). Though I think at some point, all lawyers or lawyer-to-be ought to go through some form of mediation advocacy training so we can do our job better, which now includes advising clients on alternative dispute resolution (and presumably taking them through the process as well).

Going to attend mediation soon and want to know more before you step into the room? Drop me a message, an email (boongan@lawfirm.com.sg) or a LinkedIn Message to Boon Gan Ng.

我经常与当事人参与庭外和解会议,而且经常通过这些会议达成新的协议,好让双方维持商业关系。尽管新加坡法院鼓励各方尝试庭外和解,或关于庭外和解的资讯比较广泛,我还是偶尔遇见一些对庭外和解基本原则不熟悉的同僚。虽然他们是为了庇护当事人,但某些举止还是叫人头痛。

1. 过分注重法律上的立场:在庭外和解之前,双方了解已经了解对方的立场,甚至已经交换了有关文件和其他证据。来到了庭外和解会议,以立场为起点而重复的辩论各自的立场只是在浪费时间。和解员的目的与法官不同,是协助双方达成协议,而不是分辨是非。既然已经来到了和解的阶段,那双方应该避免坚持法律上的立场,而从商业利益为出发点进行谈论。

2. 让当事人做主角:不可否认,律师的职责是维护当事人的利益,自然倾向为当事人辩解。如果您已经到场,不妨向和解员和对方直接分享看法、感受,好让各位了解为何纠纷以发展到起诉的地步。这样和解员才能协助大家揭发纠纷的根底,并开导双赢的捷径。

3. 每一个纠纷可能有许多解决的方案:虽然双方都有理想中的解决方案,但为了公平起见,应当先让各方提出建议,再讨论方案是否行得通。如果由对方律师或和解员提供建议,当事人可能觉得缺乏主宰权,产生对和解的反感。为了维持和解过程的灵活性,双方律师必须抛弃辩护的思维,把分析力集中在建议的可操作性。

当事人若能通过庭外和解而解决纠纷,不但能省时省事,还能减少精神上的负担。虽然有些律师觉得庭外和解只会减少律师事务所的利润,但若能更迅速地解决一个当事人的负担,就能把注意力集中在其他当事人的身上。作为律师,目的就是解决当事人面临的问题,而庭外和解就是解决商业问题的最佳模式。

已经约定了庭外和解的会议,但还是不知所措?需要咨询的网友,不妨以电邮 (boongan@lawfirm.com.sg) 或微信 (+65 86208629) 联系我。

Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?

If you have any questions relating to business dispute prevention or how to settle a business dispute in Singapore, feel free to email or drop me a LinkedIn message. I will do my best to respond within 24 hours.

Or leave a message here (your personal particulars will not be shared with third parties without your permission).

若有关于商业纠纷防范、和解方案的疑问,可通过电邮或LinkedIn联系。我会尽量在24小时之内回复。

您也可以通过以下表格留言。我们不会在得到您的许可之前把个人资料传达给第三方。

Need Help With A Legal Dispute? 需要关于解决纠纷的法律咨询?