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April 30, 2013

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Mediation vs Alternate Dispute Resolution Mechanisms


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Mediation

As a non-adversarial, flexible problem-solving process, mediation is gaining currency as the preferred form of dispute resolution

What is Mediation?

Mediation is a non-adversarial problem-solving process and an increasingly popular alternative of resolving disputes to litigation or arbitration. It is a voluntary process, where parties to a dispute engage the assistance of a mediator (the neutral third party), to facilitate negotiations between them to resolve their disputes quickly, privately and amicably.

Mediation

Adjudicatory Processes

Decision-maker: Parties themselves
Proceedings : Non-confrontational
Focus : Solving the problem, having regard to the parties' interests
Decision-maker : Neutral third party
Nature : Adversarial
Focus : Legal rights and past events

The key difference between mediation and adjudicatory dispute resolution processes is that the mediators do not decide on the outcome of the dispute. Parties retain complete control over the outcome, and do not run the risk of having an adverse decision imposed upon them by a judge or arbitrator. The terms of the settlement, like any contract, are legally binding. The mediator facilitates the dispute resolution process by helping the parties to identify issues, negotiate constructively and explore settlement options while the parties make their own decisions, usually with the help of their lawyers. As parties craft their own settlements, they can also come up with any pragmatic solution that may meet their needs.

While there are several models of mediation, most models promote a period of joint discussion, where the mediator hears the parties out with regard to their concerns. After the exact problem is understood, the mediator then proceeds to the process of problem-solving. The mediator may carry out private sessions, where he/she has the opportunity to speak with the parties individually and privately. During these sessions, the mediator will guide the parties to think of the possible ways to resolve the matter, helping them test out the viability of the proposed solutions and assisting them to realise the implications of not resolving the matter. Finally, the parties are brought back together for joint discussions and the mediator will guide them towards a mutually agreed on settlement. This is generally the shape that the mediation process takes.

Having said that, one of the strengths of mediation is that it is a flexible process and changes in the process can be easily made to accommodate the situation. For instance, the mediator may choose to begin with private sessions if he feels that it is counter-productive to have both disputants in the same room at the beginning.

The goal of mediation is to find a practical solution and settlement that is acceptable to everyone involved, having regard to the different interests, needs and concerns.

Why Mediate?

With concerns over escalating costs, mediation is an increasingly popular form of dispute resolution, presenting parties with an opportunity to resolve conflicts that allows them to save costs and time. Unlike court proceedings that may take months to complete, the mediation process at the Singapore Mediation Centre usually only takes one day, thus allowing parties to save a substantial amount in legal fees.

As mediation is a non-confrontational process, parties are guided to adopt a constructive approach and improve their relationships whenever possible. This would be important if parties have a relationship which they want to preserve. This is typically the case in family matters but could also be relevant where there are valuable commercial relationships.

Privacy and confidentiality of the mediation process ensures that there is no exposure of information to the public, hence protecting the reputation of the parties involved and preserving the confidentiality of sensitive information. The confidentiality also serves to encourage frankness and openness between the parties in the mediation process.

As parties settle only when they are satisfied with the settlement package they have mutually agreed to, they do not run the risk of having an adverse decision imposed upon them by a judge or arbitrator. Mediation is also a "without prejudice" process. This means that parties are at liberty to enforce their rights in arbitration or in court, should the matter not settle.

The Singapore Mediation Centre (SMC)


Parties from all over the world can bring their disputes for mediation at SMC as SMC has no geographical restrictions in accepting matters for mediation. Parties from Australia, India, Italy etc. have had the opportunity to undergo the SMC experience. As an organisation, SMC has managed to cross boundaries to expand its presence and reputation.

Established in 1997, SMC has become synonymous with excellence in mediation services for the resolution of commercial disputes. It has also established a reputation for providing training in mediation and negotiation that is of the highest standard in Singapore and in the region. With the support of the Singapore Judiciary, the Ministry of Law, the Singapore Academy of Law and various professional and trade associations, SMC has successfully spearheaded the mediation movement in Singapore.

SMC Services

As the leading mediation centre in Singapore and the region, SMC offers:

    • Mediation and other adjudicatory services such as Neutral Evaluation, Med-Arb, Adjudication under the Security of Payment Act and Singapore Domain Name Dispute Resolution
    • The expertise of an illustrious panel of mediators and other neutrals
    • Training services in negotiation, mediation and other alternative dispute resolution mechanisms
    • Consultancy services for dispute avoidance, dispute management and alternative dispute resolution mechanisms

Why SMC?

Set in one of the safest and most well connected cities in the world, Singapore is the natural place to go to mediate your disputes. Boasting an English-speaking population and the best infrastructure in Asia, there is nowhere else in Asia that is as convenient and conducive for mediation.

Parties from all over the world can bring their disputes for mediation at SMC as SMC has no geographical restrictions in accepting matters for mediation

Since its establishment, SMC has facilitated the mediation of more than 2,000 disputes with one of the disputed claims involving a quantum of SGD 209 million. The total value of disputed claims that SMC has mediated is SGD 3 billion. Of the cases mediated, 75% result in a settlement agreement, of which more than 90% settled within a day.

Whether it is setting up the mediation session, appointing mediators or providing secretarial support, SMC is experienced in managing cases in an efficient and professional manner. Mediations at SMC are well organised and are led by highly qualified mediators. The mediators include retired Supreme Court Judges, Senior Counsel and leaders from different professions and industries. Each mediator has undergone formal mediation training and rigorous evaluation. Trained with the right skills, they are the primary reason for the satisfaction enjoyed by users of our services. SMC also has an international panel of mediators comprising luminaries of the mediation world.

Conclusion

Mediation offers a plethora of benefits. It is therefore prudent for parties to first mediate before proceeding to other dispute resolution mechanisms. After all, it only makes sense.

Disclaimer-The views expressed in this article are the personal views of the author and are purely informative in nature.

 

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