I first trained as a mediator under the Malaysian Mediation Centre in 2010. I was immediately drawn to the concept of strategic resolution of disputes which is the goal in any mediation. I followed my Malaysian training with a mediation training programme in Singapore which was based on the Harvard 7-Elements principles and the journey to sharpening my problem-solving skills really kicked in. In the following 10 years, I have trained at the Harvard Law School Programme on Negotiation & Mediation and later the Harvard Law School Programme on Negotiation for Advanced Mediation – Mediating Complex Disputes – where I learnt about designing a mediation process for complex disputes. I was later fortunate to be selected for sponsorship to be trained as an Investor-State Mediator by the Department of Justice Hong Kong – trained by the Centre of Dispute Resolution (“CEDR UK”) and ICSID. That last experience opened my mind to how far and wide mediation was being discussed internationally. It was and is indeed an extraordinary world!

Why Mediation?

Mediation has been skirting on the edges of problem solving for more than two decades. Cloaked with an uncertain value proposition, mediation has been a welcomed concept in theory but not the first touchstone for most advisors given that there is no apparent reward for swift solutions, at least in this part of the world.

As the consequences of the devastating ripple effects of the Covid-19 crisis take root, the wisdom switch has flicked on for many. The prospect of a swift, sensible cost-effective solution via mediation has been pushed front and centre.

How and Why Does Mediation Work?

The mediation process is a flexible one and the mediator is privileged to speak with parties privately as well as jointly. The entire process is protected by confidentiality and there is an additional layer of confidentiality for parties in private sessions where they can be assured that what is shared in private sessions remain confidential unless the party authorises the mediator to disclose or communicate the same. There are of course, some limitations to confidentiality and these would include matters relating to any illegal activity, eg admission to criminal conduct.

The final decision belongs entirely to the parties and when a solution is reached, it means that the parties have come to accept (through the process of mediation) why the solution they are agreeing to is to be preferred over keeping the problem alive.

One notable feature noted in the mediation landscape is that the rate of compliance of final mediated agreements is anecdotally high. This is despite nothing being imposed. This phenomenon happens for a few reasons, which are explained below.

• The mediator uses various techniques to understand the facts which have brought the parties into dispute, to explore why earlier attempts to resolve were not successful (invariably parties would have tried to resolve the problems on their own) and to understand the issues that continue to affect the parties in dispute.
• The engagement between the mediator and parties serves to build rapport, and mediators are trained to actively listen to what the real issues in dispute are.
• The next step would be to help the parties put the issues into context and to recognise their own key interests. This is where the real work of a mediator takes place. A mediator has to remain the most positive and optimistic person in the mediation space with more patience and stamina than anyone else to plough through the invariable impasses that will be presented by the parties.
• Mediators are most crucially, neutral option explorers. Mediators take the parties on the journey on how they got to the room, what the problem really is and where the parties want to head to.
• Mediation requires the marshalling of every ounce of one’s temperament – ability to deal with impasses, stamina, alertness, creativity and conflict management skills – every single time one is invited to 'hold the room'. There is no break or letting up as all eyes and ears are on the mediator for guidance and impasse – overcoming strategies.

One of the key challenges in the mediation landscape is the perception that mediation is a soft and easy process.

It is not. A good mediator makes it look soft. But it is never easy.

Why hasn’t mediation been used more?

Even though formal mediation has been a known process for the last two decades, it really has only surfaced as a utilised form of dispute resolution in the last decade.

One of the key reasons is that the usual gatekeepers of disputes (lawyers) previously were not given a respected place at the mediation table – especially by mediators who ostensibly mediate for free.

Lawyers who are excluded in mediation invariably rejected the use of mediation in response – for how could they demonstrate their value to their client if the problem was resolved in their absence.

The previous disrespectful treatment of lawyers/ advisors in mediation has been a decade long problem. But it is a solvable one, as trained private mediators are all aware of how to handle the professionals in the room.

This begs the next question…

Are lawyers helpful in a mediation?

As a mediator who has had the privilege (and a preference) of having lawyers assisting parties in a mediation – I will vouch that lawyers who are properly included in a mediation process are incredibly useful to the process.

A party has no power to change the representation of their counterparty whether in mediation, litigation or arbitration. Invariably there will be lawyers who scuttle mediation for their own intentions. To round up this point, the conduct of lawyers in ad hoc mediations where clients have properly invested in the process (ie not free mediation), has been sterling, and both sides clients were clearly very fortunate to choose such legal representations.

In these post Covid-19 times, parties in a failed negotiation can still extol upon each other to find advisors who know how to assist them in a mediation as a next step and to avoid the temptation of protracted litigation. Egregious legal battles make no sense if parties are genuinely cash-strapped. Surely, mountains of liquidations and bankruptcies are not reflective of effective problem solving.

What are the hazards of being a mediator?

I thought this was an intriguing question and took awhile to reflect on it.

The main occupational hazard of being a mediator is that one presumes you are soft and nice all the time, offering good coffee and tasty snacks to inspire good decision making. Parties may then get startled when they realise that most professional mediators are in fact 'Iron Fists in Velvet Gloves'.

What would be the best approach to solve a dispute?

From a Lawyer’s perspective – devise a clever strategy that takes a client to a solution/ negotiated solution in the shortest possible time. The lawyer should be paid an agreed fee and not an hourly rate as the hourly rate structure does not reward cleverness but instead rewards delay.

From a Mediators’ perspective – Ask the question: Why is there a dispute in the first place? What underlying interest needs attention?

Conflict is a part of life but all conflicts do not need to evolve into disputes. A dispute suggests parties have anchored to their respective views and are hopeful for redemption of some form, to justify why they believed they were right to begin with.

Do you think being a mediator is a good career?

I love being a mediator and I find a deep sense of fulfilment and personal satisfaction when I carry out a successful mediation.

I am fortunate to have entered the mediation market early enough when mediation was just changing gears and I embraced all opportunities including mediating in Malaysia and Singapore, and strategizing mediation-based solutions for clients. I am now a Principal Mediator in Singapore and a Certified Mediator under the Singapore credentialing body SIMI which is recognized by the International Mediation Institute. A large part of my practice includes dispute resolution strategy where I weave in a mediative approach to try to resolve disputes swiftly and creatively.

Having said the above, I will say that mediation cannot be a full time career in Malaysia yet (unlike in USA, Italy, India, China, Australia, Singapore and even Peru where I have met sufficiently busy full time mediators).

The challenge in Malaysia is that mediation has not yet mainstreamed in the minds of lawyers and boards of directors sufficiently.

What are the qualities of a good mediator?

Patience, persistence and a good sense of pause.

Why do some mediations succeed and some don’t?

Parties must make the first choice to walk into the Mediation Chamber with their problem. It is entirely up to the parties if they choose to walk out of the Mediation Chamber with a solution. More precisely, a solution they can live with.

All parties have an idea of what they want and why they want it. A Mediator’s role is to discover the 'why' and to respectfully explore alternatives.

Mediations which do not result in resolution may be as a result of many reasons. In some cases, there is insufficient data for the parties to decide or the parties require more time to consider the issues. Alternatively, the parties may find themselves hemmed in by personal fears or rigid mandates or policies (which may make no sense from a time and cost expense perspective but are built on notions of 'matter of principle'). In such situations, the parties are hopeful that the other side will bend or back off. If this does not happen, then an adversarial process needs to be used to break the impasse by calling out a winner and declaring a loser.

How is it that parties will voluntarily agree to something when negotiations have failed?

In a negotiation, parties argue passionately from their own self-interest (and fears).

Facts, law and merits are used as weapons to demonstrate who is more right than the other. But no one is actually listening to the other side. Parties may be listening to prepare a rebuttal but not really listening to the root of the problem.

A mediator is trained to change the dynamics of unproductive posturing. Mediation helps parties consider options without pressure of penalty. This flexibility often leads parties into workable solutions.

Why is there a generally high compliance rate with final mediated settlement agreements?

In an adversarial process, both parties are inflicted with an outcome which invariably ends with one declared a winner and the other, the loser. In these post Covid-19 times, the important question ought to be – and then what? Will there be compliance?

Would the winning party simply be left with a paper judgement? Enforcement is always the consoling option but often parties have not done a “timecost-actual outcome” analysis on the enforcement process involved.

And what happens if the party reneges on the final mediated settlement agreement?

The question is why it happened. With no known history of any of the parties reneging on the final mediated settlement agreements I have assisted with, my response is framed in theory.

The answer may be found back in the mediation itself (party felt bullied into submission or mediator strongarmed an unworkable solution onto the party) or may lie in original poor intentions of the parties (eg delay tactics, no intention to really resolve). Having said this, I would see this as a peril of free/volunteer mediation as parties would not have invested anything in the mediation process and therefore have no skin in the game. In that sense, one would be getting what one paid for.

In any event, it is prudent that all final mediated settlement agreements build in a future mediation clause should parties face any issues with compliance.

Conclusion

The last year was a watershed year for mediation. The Government rolled out a Covid-19 Mediation Programme. A ‘Mediate First Policy’ opportunity will be rolled out for lawyers and law firms soon as well. We hopefully will see robust changes in our Malaysian Mediation Act 2012 and the relevant regulations, thereby strengthening this mode of problem solving. Mediation continues to be available as a pre-action option as we are one of the few countries in the world which has a Mediation Act.

With the scourge of Covid-19 tipping lives upside down, parties will have to consider and prepare themselves for a possible tsunami of disputes. If so, pre-action mediation would be an excellent place to start.


Shanti Abraham is member of the Malaysian Bar and is a Mediator with the Malaysian Mediation Centre and a Mediator with SIDREC and on the panel of AIAC. She is a Principal Mediator with the Singapore Mediation Centre and the Chair of the International Mediation Institute Investor State Mediation Taskforce as well as a Mediator with the Global Mediation Panel at the Office of the Ombudsman of the UN Funds and Programmes.  She is also an IMI and SIMI Certified Mediator with a mediator profile at https://www.simi.org.sg/profile/mediator/Shanti--Abraham.