The right time to mediate
Theoretically, mediation can take place at any time during the span of a dispute, even when the case is on appeal in the courts. All that is required is the parties’ agreement to mediate in good faith. It is also often said that the earlier one mediates, the better.
Nevertheless, based on SMC’s experience in facilitating mediation cases over the last 19 years, there is a higher likelihood of mediation succeeding when the following criteria are fulfilled:
- Awareness of strength of own and other side’s case — sufficient information available. Parties should have enough information to make a realistic assessment of the strengths and weaknesses of their own case, as well as that of the other side. This will vary from case to case and may depend on the complexity of the dispute. This awareness is important as it will assist a party in deciding whether or not to accept an offer made by the other side.
- Psychological readiness. Although it is said that the earlier the dispute is tackled through mediation, the better, sometimes "early" is "too early" – the wounds may be too raw. At this point, parties may be too emotional to be involved in sensible negotiations. In some cases, parties should be allowed to cool off before mediating.
- Awareness of cost outlay. The cost of pursuing a dispute as well as the opportunity cost of engaging in a dispute should be thought through as early as possible. Where parties are aware of the total legal costs if they bring their matter to a full trial (and the cost consequences should the judge find against them), mediation allows them an avenue to make a commercial decision to put a stop to further expenditure. Essentially, parties should be in a position to make a cost-benefit analysis of a full trial.
- Key decision makers are committed. It is crucial that the decision makers in a dispute are committed to settling the dispute when the matter is mediated. Their frame of mind towards resolving the dispute should preferably be one of willingness to give and take. In fact, it is best that committed key decision makers attend the mediation in person.
Finding the right time to mediate when all these factors converge is crucial. Attempting mediation too late carries the risk of parties being entrenched in their positions and possibly having spent so much in litigation that they feel they might as well wait for the judge’s decision. Resolve your disputes at the earliest possible stage to save costs and time, and have control over the outcome.
For more information on mediation, please visit www.mediation.com.sg.
Follow us on:
LinkedIn I Facebook
July 2016 Issue. For past issues, read more here.