Dispute Resolution Methods PDF

00:16 To truly understand mediation advocacy, we must first understand mediation. So let\'s talk about mediation and the modes of dispute resolution. There are four common types of dispute resolution mechanisms that you need to be aware of. There is negotiation, mediation, arbitration and litigatio...

00:16 To truly understand mediation advocacy, we must first understand mediation. So let\'s talk about mediation and the modes of dispute resolution. There are four common types of dispute resolution mechanisms that you need to be aware of. There is negotiation, mediation, arbitration and litigation. 00:45 We can compare the characteristics of these four modes of dispute resolution under the headings of decision-maker, process, cost, duration and focus. So negotiation. 01:05 The decision-makers are the parties themselves. They decide whether they want to amicably resolve the matter. The process is flexible and informal, involving only the parties themselves. The costs are relatively inexpensive. There are no third-party service providers that need to be paid for. The duration is fairly quick. 01:34 parties can resolve the matter as quickly or as long as they want to discuss. And the focus of the matter is on problem solving. Now mediation. In mediation, the parties are again the decision-makers. They decide whether they want to amicably resolve their dispute. 02:05 It is flexible and informal. The process is driven by a mediator. This mediator is an independent, impartial, and neutral individual with no power to impose a decision on the parties. The process is confidential, entirely voluntary. 02:34 mediation is relatively inexpensive. Duration. A mediation can be set up fairly quickly within a number of weeks. And at the Singapore Mediation Centre, typically mediations can be concluded within one working day. The focus is problem-solving and future-oriented. 03:01 Now, arbitration. The arbitrator makes the decision. At the end of the process, he imposes his decision in the form of an award. The process is rigid, being driven by the rules of the arbitral institution. Although arbitration is confidential, it is adversarial in style. 03:31 as compared to mediation, which is non-adversarial. In terms of cost, this is relatively expensive because you have to pay lawyers, you have to pay the arbitrators, you have to pay the arbitral institutions, and in complex cases, you may have to pay the experts. In terms of duration, it is driven by the arbitral institutions\' rules. 03:59 And so it takes a fairly long process, and it may take a while before you can actually get to a hearing. The focus is on fault finding. They base on legal principles and the facts. They look at legal entitlements and they talk about liability, trying to determine what to do about a past event. Let\'s look at litigation. For litigation, 04:27 the decision-maker is a judge. He makes his judgment at the end of the process and imposes that decision on to the parties. Again, the process is rigid and formal, governed by the rules of court prevailing at the material time. The process is adversarial and it is not confidential. In terms of costs, compared to mediation, it is relatively more expensive 04:56 In terms of duration, it takes a while before you can get to a hearing as compared to a mediation. The focus is on legal rights and determining fault and apportioning liability. It is focused on what to do with the past event and to try and make things right for the parties, putting them as if the event had never happened. So there you have 05:25 the four modes of dispute resolution. Let\'s focus now on mediation. 05:34 Mediation is a non-adversarial dispute resolution process. It is a voluntary process in that parties can choose and agree to have a mediation at any time. Whether or not they have a clause in the contract or whether this is stipulated in any procedures, parties can choose to mediate their dispute. The process is confidential and without prejudice. In practical terms, what this means 06:04 is that mediation creates a safe space. And within that safe space, the parties are encouraged to communicate directly with each other to resolve their dispute. The mediator drives this process. The mediator is trained in processes and techniques that facilitate the communication between the parties. The mediator is in neutral. 06:34 He is independent and impartial, and he has no power to impose a decision on the parties. And so, the parties are encouraged to amicably resolve their disputes, and various outcomes are possible. There can be a full settlement of all the disputes. There can be a partial settlement of only some issues, leaving the other issues to be 07:04 or go for arbitration. Or parties can agree that their differences are so entrenched, and they want a determination of rights, or there is some preservation of rights and obligations that needs a judicial pronouncement or an arbitral award. And as a result, with this clearer understanding of what they are fighting about, they can choose not to settle their matter. 07:34 What is the role of the advocate in dedication? 07:40 Before a dispute even arises, you as the advocate should advise your clients on the different modes of dispute resolution. You should be advising them on including dispute resolution clauses into their contracts. When the dispute arises, as an advocate, you should be assessing whether 08:09 mediation is a viable option. You should then advise your client to consider mediation as an option to resolve the dispute, where this is appropriate. You then assist the client to prepare for mediation, to engage in mediation, to engage in communication with the other party in a collaborative and constructive manner. 08:40 You should work together with the mediator. You should work together with the mediator to facilitate the mediation process and protect your client\'s interests. And when the parties have achieved an amicable resolution of the matter, you work with the council for the other party to craft a mediated settlement agreement that accurately captures the points of agreement. 09:11 And after the mediation, you should assist your client to follow up in the processes and activities that need to be carried out. Common Types of Mediation and Mediators As a mediation advocate, you need to be aware that there is a spectrum of mediation types and styles in practice. 09:39 At one end of the spectrum is facilitative mediation. At the other end of the spectrum, there is evaluative mediation. Let\'s talk about facilitative mediation first. This is also known as interest-based or problem-solving mediation. 10:09 is to encourage the parties to avoid taking legal positions. Parties are encouraged to negotiate based on their underlying needs and interests, instead of focusing on the strict legal requirements. 10:30 The type of mediator for facilitative mediation must be an expert in the mediation process and techniques. It is not necessary for expert knowledge on the subject matter of the dispute. After all, the thinking is that the parties know best what are their underlying needs and interests. So the mediator\'s main role is to conduct 11:00 the mediation process, maintain a constructive dialogue between the parties, and to enhance the mediation and negotiation process. There is less intervention by the mediator, and the parties are encouraged to talk direct to each other and to fashion creative outcomes around their mutual interests. 11:29 So let\'s turn now to look at evaluative mediation. This is also called advisory or managerial mediation. The objective here is to reach a settlement according to the legal rights and entitlement of the parties within the anticipated range of court outcomes. 11:55 In this type of mediation, expertise in the substantive area of the dispute is critical. There is no necessary qualifications in mediation techniques or processes required, because the main role of the mediator here is to provide additional information, to advise and persuade 12:25 expertise to bear on the content of negotiation. The mediator may be male or female, but professional expertise and being respected by the parties in the field can be a critical factor. 12:44 There is greater intervention by the mediator, who will be advising or guiding parties into what they can expect, and there is less party control over the outcome. So there we have the two extreme types of mediation, facilitative mediation and evaluative mediation. As a mediation advocate, you will have to know 13:14 what style of mediation you are opting into, and what kind of mediator you are picking to guide your parties through the mediation process. So now, what are the benefits of mediation? For the client, there are numerous advantages. The client is in control of the process. 13:45 They are in control of the outcome. There is a greater scope for solutions and creative problem solving. 13:59 The process is relatively quick. Cost-wise, it is less expensive than arbitration or litigation. There is the prospect of confidential proceedings. There is the prospect of preserving or improving relationships with the opposite party. And the client gets to choose their mediator, who will help them through this process. 14:30 For you as the advocate, the result is greater client satisfaction. A client who feels that you have advised them and guided them to solve their dispute in a time and cost-efficient way results in them placing greater trust in you, having greater satisfaction and overall a happy client. 14:59 is a long-term client. So we\'ve talked about the benefits of mediation as a dispute resolution process. Let\'s talk about disadvantages of mediation now. It is important to bear in mind that as a dispute resolution process, mediation is not a silver bullet or some magic pill that can immediately resolve disputes for parties. 15:28 there are at least three disadvantages of mediation. The first is that there is no certainty of settlement. If we define the outcome of a mediation as reaching a settlement agreement, then because of party autonomy, there is no certainty that the parties will agree to amicably resolve the dispute. 15:58 This is unlike litigation, where once you engage in the process, the end of that process is having a judge pronounce a judgment in favour of one party or the other. Similarly, in arbitration, once you engage in the process, the end of that process is the arbitrator or arbitration tribunal making an award. 16:27 in favour of one party or the other. So this uncertainty in the mediation process is something that you will have to manage when you advise your clients to undertake mediation. 16:44 The second disadvantage is that there is no legal precedent. This manifests itself in two aspects. Due to the confidential nature of the mediation process, 17:02 Creative and good mediated solutions are not readily available in the form of law reports or publications for you to access and have them serve as a guide in your future disputes. 17:22 Another aspect of this disadvantage, where there is no legal precedent, if you are engaged in a dispute where you need a pronouncement of legal entitlement or rights, so for example in a boundary dispute or in an interpretation of a contract term, where you want the outcome to be 17:51 known to be publishable and serve as a guide for future cases, then mediation may not be the appropriate dispute resolution process, because there will be no legal precedent even when your parties have reached an amicable resolution of their dispute. 18:14 The third disadvantage is that there is no formal discovery process to compel disclosure of pertinent information. What this really means is that when parties engage in the mediation process, a lot depends on the good faith negotiation by either party. We are having to trust 18:43 in each of the parties, knowing their underlying interests, to volunteer information that is relevant in this confidential setting of the mediation. This may not always be the case and a lot has to do with a mediator and parties developing trust and rapport with each other. 19:12 It also depends on the skill of the mediator in teasing out objective criteria and relevant information that may guide the parties to see whether the options that are put on the table are fair and relevant to meeting their underlying needs and interests. So consider carefully. There are many benefits of mediation. 19:42 as a dispute resolution process, but there are some disadvantages as well that need to be managed as you guide your clients in choosing the most appropriate dispute resolution process for their dispute. Let\'s examine the mediation landscape in Singapore. Mediation is more entrenched than you realise. There is Semi. Singapore 20:11 International Mediation Institute. This body is concerned with professional standards and accreditation of mediators. There is SIDRA, Singapore International Dispute Resolution Academy. This body drives thought leadership in the mediation and ADR space. There are the courts in Singapore. They are early adopters and users of mediation. 20:41 At the Supreme Court, the State Courts, the Sharia Courts and the Family Courts, mediation is embedded as part of the dispute resolution process. Order 5 of the Rules of Court provides that parties have a duty to consider amicable resolution of their dispute before commencing proceedings, during proceedings and before an appeal. 21:11 The commercial institutions are the Singapore Mediation Centre, SMC, the Singapore International Mediation Centre, SIMC, and then there are the industry and sector-specific mediation providers -- CASE, the Consumer Association of Singapore, CMC, community mediation centres, 21:42 the Financial Industry Dispute Resolution Centre. And then there is TADEM, the Tripartite Alliance Dispute Management that concerns itself largely with employment disputes, so that parties have access to justice and an opportunity to resolve the disputes and make a\...