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Bringing people to the negotiating table

Bringing people to the negotiating table

Bringing people to the negotiating table 如何促使对方参与和解或谈判

The business owners I meet tend to be quite reasonable people, in that they usually want to end a dispute quickly and in an amiable way so that they can preserve the business relationship. They are usually confident that once they have an open channel to the other party, both sides can usually agree on how to resolve the dispute and move on. However, once in a while they will meet someone who refuses to talk to them or insists on having the court try the dispute, and they ask how to get these people to open up for discussion so that everyone can move on with their business and life.

It's this type of situation, where one party faces a stone wall or someone who is openly hostile, where I like to offer some ideas about getting the other party to participate in mediation. My understanding of mediation is a private session between parties in a dispute, with a neutral third party present to facilitate a settlement, and whatever is said in the meeting stays in the meeting. So it is not just another meeting between parties for the purpose of negotiation.

It would be great if you had a previous agreement with the other party to go to mediation in troubled times such as these, but if not, then you need to give them an objective reason to consider going for mediation.

A surefire way to create a sense of urgency to go to mediation is to start legal proceedings against the other side. When you start a suit, you force the other side to respond for several reasons:

  1. Any document with the court's seal is bound to draw any reasonable person's attention to it. This is usually enough to get the other side to go look for legal advice.
  2. A defendant has at the most 22 days to put up a defence once he or she is personally served with the documents. Failing to do so means that the plaintiff can apply for judgment in default and he will get what he asks for most of the time, such as a specified sum of money. Of course, if the other side has empty pockets then there may not be much motivation to participate in court proceedings and chalk up a legal bill.
  3. Usually people who are new to court proceedings will ask for cost estimates, and most of the time they will find it quite hard to swallow. This immediately creates a context for suggesting mediation as a less expensive and long-winded alternative.
  4. Having parties take clear positions on what happened and who's responsible gives you a good idea of what you can expect to hear at mediation, such as some possible objectives the other party wants to achieve (get some money? Make the dispute go away?). This is particularly useful for court-based mediation, where the time allocated is short and you don't want to spend too much time figuring out what exactly the other side wants.

Another method which works sometimes is to appeal to the parties' relationship, even for commercial settings. This works when both sides want to continue working with each other and are concerned about escalating the dispute too far. This worked out for a subcontractor client who could not agree what “relamping” meant, but both parties recognised that they still wanted to work with each other and agreed to spend time in mediation to find a solution. In the end, they managed to come up with a threshold to decide when and which party would foot the cost of certain items in the scope of work.

Getting parties to agree to mediate is only the first step. But it is an important step to resolving your business disputes efficiently and freeing up your time for more profitable activities.

Are you a director-shareholder of a company looking for counsel who can start legal proceedings but know when to hit the brakes in favour of negotiation or mediation? Write to me at boongan@lawfirm.com.sg or message Boon Gan Ng on LinkedIn for a quick, no-obligations discussion.

一般的商人希望能尽快解决纠纷,并且维持良好商业关系。他们会尝试与对方直接联系,达成协议,把纠纷抛在头后。但是,他们偶尔会碰到对商谈毫无兴趣,或者倾向法庭诉讼的一方。虽然不像让纠纷持续太久,但对方坚持通过传统模式解决纠纷,叫人不知所措。

在这种情况下,和解可能比较适合,因为有中立的和解员主持会议,鼓励双方和平、坦率地交谈。和解员也保证会议的次序,避免会议沦陷于彼此攻击。当然,双方提前同意参与和解会议是最佳状态,但在缺乏同意的情况下,必须鼓励或刺激对方选择通过和解解决纠纷。

激将法之一就是起诉对方。虽然表面上是矛盾的做法,但对方必须选择如何反应:

  1. 带着法院盖章的文件,通常会促使对方寻求法律咨询。
  2. 被告也有22天左右的时间限递交抵抗书,否则原告可向法院申请立刻下判,除非对方一无所有,觉得反抗毫无意义。
  3. 首次面临诉讼程序的一方通常会注重法律费用,如果律师能提供预算,通常当事人会倾向尝试庭外和解。
  4. 当对方递交抵抗、反告书时,会显示他对此纠纷的立场,有时甚至透露了利益。了解对方的利益,就能准备在和解会议中单刀直入,直接商量如何达成双赢的协议。

即使引起了纠纷,若双方希望能维持商业关系,也较容易鼓励对方参加和解会议。几年前有一位承包商的当事人,因合约的字眼不明确而造成义务上的纠纷,但因为双方承认希望能与对方保持长期的合作关系,最终以和解的方式签署了新的合约,改造双方义务的范围。

取得双方同意而进行和解,是顺利解决商业纠纷,把注意力集中在经营生意的第一步。虽然和解不保证双方能达成新的协议,但毕竟能取得双方同意是迈向商业效率的重要步伐。

如果您是公司董事、股东,而需要能衡量起诉、和解界限的律师,不妨以电邮(boongan@lawfirm.com.sg) 或 LinkedIn (Boon Gan Ng) 咨询。

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。

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