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What if someone refuses to mediate?

What if someone refuses 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 to mediate, 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 arguably 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.

Need help to get the other party to go for mediation? Email me or drop me a LinkedIn message.

虽然庭外和解与其他非对抗性纠纷解决模式早已成为新加坡法律系统不可缺少的程序,但许多当事人或律师还是强烈抗拒非诉讼模式。若缺乏相关合约条例,即使法院程序要求双方先尝试非对抗突性纠纷解决模式,律师应该主动克服对方对庭外和解的抗拒。

首先,庭外和解与诉讼相比当然比较经济实惠:

1. 如果能防止诉讼达到法官审讯的阶段,可省时间。审讯可能需要好几年的准备工作,但庭外和解始终能在几个月内完成。 即使庭外和解不成功,也不会造成诉讼长期拖延。

2. 当然,庭外和解能省下好几倍的费用,而目前和解中心方面多样化。虽然短期内各方必须付出多一项费用,但无法付庭外和解费用的一方不可能付起诉讼的全程费用。

有些律师尝试已案件困难、复杂的角度说服对方,但对方律师不可能已类似的原因作为庭外和解的根据。

3. 律师不会轻易认同当事人的法律弱点,也不会轻易承认当事人没有上庭审讯的心理、资源准备。但是,当今的法院倾向控制形态,所以律师们不能保证诉讼以起初的庙算发展。

4. 有些思想保守的律师认为庭外和解的建议显示一方的弱势,所以不愿意提出类似的建议。但是,随着新的法律程序对非对抗性模式的注重,类似的思想应该逐渐消失。

中立的和解员是提倡和解长处的最佳角色。虽然有些法官在审讯之前会提供自己的看法,但这些看法并不一定对一方有利,而且律师也可以选择不把看法传达给当事人。和解员通常以来以下理由说服双方尝试和解:

5. 法院能审判的事项有限,但通过庭外和解,双方能达成新的协议,让各方得到所需求的结果。这不但能避免双方不受法律约束,而能让双方满意。

6. 和解会议也能提供说出心里话的安全空间,双方不需畏惧对方利用会议里谈论的事项作为诉讼的武器。有了中立的和解员,双方也能心平气和地谈判。

有时,为了让对方同意庭外和解,律师之间的沟通类似一场谈判,而有些律师也必须取得当事人的同意。能针对一方抗拒的根本,就能成功地大事化小,小事化无。

需要说服对方进行庭外和解?不妨通过电邮LinkedIn寻求咨询。

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?