Introduction to Mediation PDF

mediation.com.sg mediation.com.sg 1  1 INTRODUCTION: MEDIATION mediation.com.sg Introduction: Mediation  Mediation and other Dispute Resolution Mechanisms  What is Mediation?  Common Types of Mediation and Media...

mediation.com.sg mediation.com.sg 1  1 INTRODUCTION: MEDIATION mediation.com.sg Introduction: Mediation  Mediation and other Dispute Resolution Mechanisms  What is Mediation?  Common Types of Mediation and Mediators  Benefits of Mediation  Disadvantages of Mediation  Evolving Roles of the Advocate in Mediation  Mediation Institutions 3 Mediation and other Dispute Resolution Mechanisms Negotiation Mediation Arbitration Litigation Decision- Parties Parties Neutral Arbitrator(s) Neutral Judge(s) Maker Nature/ Interest-based, Interest-based, Rights-based Rights-based Process Consensual Consensual Adversarial Adversarial Problem- Problem-solving Confidential Public forum solving Confidential Binding Award Binding Confidential Binding Settlement Judgment Agreement Costs Inexpensive Inexpensive Expensive Expensive Duration Shorter Shorter Longer Longer Focus Solution Solution Legal Rights Legal Rights Possible Future Possible Future Past Events Past Events relationship relationship 4 What is Mediation?  Consensual and party-initiated  A dispute resolution mechanism  Facilitated by neutral, independent mediators  Disputants empowered to decide outcome  Confidential, without prejudice and voluntary  Possible outcomes: ▪ Settlement agreement Full settlement Partial settlement ▪ No settlement ▪ Narrowing of issues / disputes 5 Common Types of Mediation and Mediators Facilitative Mediation Evaluative Mediation Also known as Interest-based, problem-solving mediation Advisory, managerial mediation Main Objective To avoid legal positions and negotiate based To reach a settlement according to the on parties’ underlying needs and interests legal rights and entitlement of the parties, instead of their strict legal entitlement within the anticipated range of court outcomes Types of Expertise in mediation process and Expertise in substantive areas of the Mediators techniques; no necessary expert knowledge dispute, no necessary qualifications in of the subject matter of dispute mediation techniques Mediator’s Main Conduct the process, maintain a constructive Provide additional information, advise Role dialogue between the parties and enhance and persuade the parties, bring negotiation process professional expertise to bear on content of negotiation Other Less intervention by mediator, parties Greater intervention by mediator, less Characteristics encouraged to fashion creative outcomes party control over outcome. around mutual interests. 6 Benefits of Mediation  For Client: ▪ Quicker resolution ▪ Client’s control of outcome ▪ Greater number of possible solutions ▪ Less costly as compared to other dispute resolution mechanisms ▪ Confidential ▪ Preservation / improvement of relationship between disputants ▪ Choice of mediator 7 Benefits of Mediation  For Counsel: ▪ Possibly greater client satisfaction ▪ Opportunity to test strengths and weaknesses of client’s case [in case mediation fails, and court/arbitral proceedings were to commence] 8 Limitation of Mediation  No certainty of settlement ▪ whereas in litigation or arbitration, there would be a court order or arbitral award  No legal precedent ▪ due to the confidential nature of the process ▪ therefore, creative / good mediated solutions not readily available to serve a guide in future disputes  No formal discovery process to compel disclosure of pertinent information 9 Evolving Roles of the Advocate in Mediation  Before dispute: ▪ Advise on the duty to consider amicable resolution of disputes under Order 5 of the Rules of Court 2021 ▪ Advise on alternative dispute resolution clauses in contract  When there is a dispute, to advise/assist client: ▪ to assess if mediation is a viable option ▪ propose mediation for client’s consideration, where appropriate ▪ prepare for mediation, including preparing clients and openings statements ▪ assist the mediator, while protecting the client’s interests ▪ draft any settlement agreement with opposing party/counsel 10 Singapore’s Mediation Landscape Mediation Institutions Commercial Dispute Resolution Centres Other Industry Dispute Resolution Organisations 11 Mediation Institutions  Courts ▪ State Courts (Court Dispute Resolution Cluster) ▪ Family Justice Courts ▪ Supreme Court  Singapore Mediation Centre  Singapore International Mediation Centre  Singapore International Mediation Institute  Industry-specific mediation schemes (e.g. Financial and employment) 12  mediation.com.sg mediation.com.sg