Debunking Myths in Mediation
Although mediation is a fast and cost-effective way to resolve disputes, some common misconceptions may cause parties to hesitate before making it their method of choice. Today, we shed light on some of these myths so that you can arrive at the best possible decision for your business or client.
Myth #1: You mediate only when you have a weak case
Fact: You mediate because it achieves the best result for your dispute
We sometimes hear that people mediate because they have a weak case and are trying to “salvage” some kind of settlement instead of facing an all-out loss in court. On the contrary, mediation can benefit parties with a strong case by speeding up the resolution process and giving them full control to craft a mutually acceptable and practical solution. Mediation offers a practical and effective way of managing disputes, and an opportunity to preserve relationships. SMC has mediated more than 2,800 matters, with a total of $3.4 billion worth of disputes. The highest quantum mediated was $209 million.
If your dispute does not involve novel points of law that will expand jurisprudence and case law, there really is no need to get embroiled in litigation.
Myth #2: Parties can always negotiate a settlement without a mediator
Fact: A mediator improves the likelihood of settlement
Ideally, parties should aim to resolve their disputes on their own without a third party. When this is not possible and parties are in deadlock, they should then turn to a mediator. A mediator is specially trained to handle difficult parties who are deeply entrenched in their own positions. Mediators are able to use their skills to uncover parties’ hidden interest, help them to understand the other side’s perspective, and work through various solutions to find the best result for the parties. At SMC, we have more than 500 mediators from different industries, backgrounds and cultures. And if one mediator does not suffice, parties can choose a co-mediator to ensure that both parties’ needs and differences are balanced out.
Myth #3: Mediation is not enforceable
Fact: A settlement agreement resulting from mediation is enforceable
Many are under the impression that mediation is all talk with no concrete result. On the contrary, when mediation results in a settlement, parties and their lawyers will craft a settlement agreement that is signed by the parties and becomes enforceable like any other contract. If the matter is already in court there is the option of parties recording the settlement terms as a consent judgement. In the pipeline are national statutory provisions to enable parties to record their settlement agreements as orders of court, and the United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Arbitration and Conciliation) is working on an instrument to make settlement agreements from international commercial conciliation enforceable.
Myth #4: Mediation is considered a fishing expedition
Fact: Mediation is “without prejudice”
People often wonder if mediation is a fishing expedition for lawyers to elicit more information about the other party’s case, which can be used against them later in court. In fact, mediation is a “without prejudice” process, where communications during mediation cannot be used against you in court, and will not affect your rights in court if your case does not settle during mediation. Many parties have often found that even when they do not reach a settlement, mediation has helped to crystallise their issues, and aid them in understanding the other party’s position better.
Myth #5: You cannot bring a lawyer for mediation
Fact: SMC encourages you to bring your lawyer
Parties often ask if they can bring along their lawyer for mediation. SMC encourages parties to bring their lawyers. Your lawyer is there to advise you during the mediation, to help you weigh your options and when a settlement agreement is reached, your lawyer will help to draft the settlement agreement that you sign.
For more information on mediation, please visit www.mediation.com.sg
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May 2016 Issue. For past issues, read more here.