LIFESTYLE

Alter Ego
 
The Mediators’ Journey

It all started in 2005 when I decided to attend the basic mediation training offerred by the Singapore Mediation Centre (“SMC”). Three years later, I was accreditated by the SMC as an Associate Mediator. In both classes that I attended, I was the only local lawyer. Mediation was not a popular option with Singapore lawyers then. I found the training interesting and meaningful. The training course is interpersed with exciting role play sessions and group exercises which gave me an opportunity to practise the principles taught and to consider whether mediation was for me. I must say there is something about role play that makes the participants start dreading the demanding simulation exercises as time goes by.
 
My accreditation course mates were predominantly medical doctors with some Taiwanese lawyers added to the mix. The competition was running high from the beginning when we realised that SMC will not hesitate to fail those who did not meet the mark. Instead of social chit chat, our breaks were slowly replaced with questions of, “if we fail the course, what will happen?” We worked hard together towards the dreaded fifth day of the course – the accreditation. Stress levels were high in the holding area as we went through the exercise. The only way to pull through was to ignore the assessors behind the room and think of ourselves as a mediator in a real life situation. After the written test, the fatigue finally set in. Only when the course ended did the accreditation course mates begin interacting socially with one another and gradually became good friends.
 
We were not happy to just become Associate Mediators and many of us wanted work.  Work was hard to come by as the number of cases referred to the SMC is not high in volume and most of these cases were referred to the SMC Principal Mediators. We looked forward eagerly to becoming co-mediators in the SMC cases. We kept in close touch with the SMC mediation community by attending the training courses and volunteering as coaches during mediation training sessions. My deep interest to be an active mediator was rewarded when I was given the opportunity to be a volunteer mediator in the Primary Dispute Resolution Centre (“PDRC”) in the Subordinate Courts in 2009 and in the Family Relations Centre in the Family Court in 2010.
 
When lawyers came to know about my mediator stints in the Courts, the first question they asked me was about my remuneration. Many Associate Mediators were so happy to be given work to hone our mediation skills that we never thought about the financial rewards. Perhaps the only thing that drove us was accumulating the victory scores of our mediation work. The competitive spirit that started in the accreditation class did not stop.
 
The 2nd Asian Mediation Association Conference was held in Kuala Lumpur last month. While I had entertained thoughts of attending the Conference since I saw the announcement, it was only sealed when SMC chartered a coach to ferry the SMC mediators to the Conference. The Asian Mediation Association comprises mediation centres in the Asian region including Malaysia, Thailand, Indonesia, Philippines, Hong Kong and Singapore.
 
During the Conference, I realised the profound significance of being part of a mediation community. Several sessions such as lawyers’ resistance to mediation, confidentiality in mediation sessions, ethical dilemmas in mediation and the creation of Mediation Inc. made the Conference beneficial and educational to the delegates.
 
Some of the issues raised at the Conference were stimulating and thought provoking.  I would like to share some of the highlights of the session and my personal thoughts.


Why Do I Mediate?

Director of PDRC, District Judge Joyce Low engaged us in a lively discourse on this subject in the last session of the Conference. She also raised interesting dilemmas faced by mediators, such as:
•    Is it a noble calling?
 
•    Are we in a peacemaking service mission?
 
•    Are we in the business of building people-to-people connections?
 
•    Do we impact lives by helping people to resolve conflicts?
 
When I first stepped into the SMC training session, I had an interest in mediation. I felt that it fit my personality. After the accreditation, I was fired up to develop even further as a mediator. What’s next? Mediation as a career option? Can one have a fulfilling full-time career as a mediator?
 
District Judge Low also touched on whether mediators should be obsessed with settlement rates and mediation outcomes. Is there such pressure on the mediator or is it self-inflicted by the mediator himself? I cannot deny settlements motivate a volunteer mediator. It is a good feeling when you walk away after a satisfying mediation session and you forget the time that you had spent away from practice and the difficulties faced during the session.
 
Volunteering in Court mediation sessions not only gives one the mediation experience but also helps us to be effective mediation advocates. Being on the other side of the mediation table, there are valuable lessons to be learnt about mediation advocacy, adequate preparation by counsel and of his clients, and the level of counsel’s involvement in the mediation process.
 
Is it a lawyer’s job to push the clients into the mediation room and expect the mediator to bring about a miracle? The mediation process, to me, starts when parties agree to attend mediation. The lawyers have to work hard to prepare clients for the mediation session. Negotiations start then and not outside the Mediation Chambers on the day of mediation. Issues in dispute can be narrowed down so that clients can focus on the issues that they require the Judge-mediator’s assistance to mediate during the short allocated time. Training and education of lawyers to become effective mediation counsel are a necessity. It is a rare pleasure to have opposing counsel who do most of the negotiation work before the actual mediation session begins.

Should Judges Mediate?    

Since the role of Judges is to hear and decide on cases, is there a conflict if they mediate as well? There is a school of thought which says that they should not due to a lack of training. Like lawyers, Judges too may have difficulties alternating their roles and may not be good mediators. After all, training alone is not sufficient; one must have the innate soft skills to be an effective mediator. 
 
It is widely accepted that Court annexed mediation originated to clear the backlog of cases and to save Court time. It is unlikely that it will be substituted by private mediation which is not popular due to the costs attached to it.


Why Do Lawyers Resist Mediation?  

In all jurisdictions, the potential financial losses tend to turn lawyers away from mediation. The Scottish experience was that parties are less likely to mediate if they were represented by lawyers. In the Singapore Family Court, District Judge Kevin Ng writes in his conference paper, The Role of Mediation in Restoring Harmony in Relationships, that only 1,825 divorce cases in 2009 were mediated. The Subordinate Courts’ Annual Report 2009 shows that 6,254 divorce suits were filed in the Family Court that year. 
 
Another reason often raised is whether mediation undermines the litigation lawyers’ role and makes them lose control of the Court proceedings.     
 
To make mediation attractive to lawyers, we should take a leaf from jurisdictions such as the United States, Australia and New Zealand and promote private mediation practice as a business model for Singaporean lawyers. Clients can then resort to pre-filing mediation instead of availing themselves to Court mediation after filing their cases. The cost of private mediation cannot be higher than litigation costs. Further, this would also alleviate the Court mediation caseload. 


Victim Offender Mediation

The Hong Kong experience in this area was interesting as the victim and the wrongdoer engage in a dialogue after the wrongdoer admits to the offence. The wrongdoer can then understand the victim’s view of the committed crime and an amicable resolution to the matter can be reached. In Thailand, this system is only extended to minor crimes, juvenile cases, family violence, property and negligence disputes.
 
It would be interesting to apply this scheme to family violence disputes in Singapore.  From a practitioner’s viewpoint, I feel that many personal protection summonses filed by complainants in our Family Court are a precursor to divorce proceedings. Many of these complaints arise from marital conflicts. There should be a process to segregrate complaints where a party genuinely requires protection from others which do not really fall under the personal protection provisions in the Women’s Charter. The second class of cases may be suitable for mediation. This would help prevent the emotional trauma suffered by parties due to prolonged personal protection proceedings and instead allow them to focus on solutions to their problems. Besides saving costs for the parties, it will also save valuable Court time.
 
Mediators must inevitably try to resolve their own personal disputes at work or at home. Does it succeed? I have tried to mediate certain family disputes but did not succeed because of my vested interest in the relationships. I am usually side-tracked by allegations of biasness by both parties. But as a good mediator, we just keep trying to achieve that elusive success that will come into our homes one day. After all, mediation is about maintaining perfect score cards, right?     
 
 
Rajan Chettiar*
Rajan Chettiar & Co
E-mail: [email protected]

 
*     The writer wishes to thank George Lim SC, the SMC management team and the other lawyer mediators for their great company during the coach ride to Kuala Lumpur and for encouragement to write on this topic for this column.