MEDIATION FOR DISPUTES – Suitable for construction disputes

by Lee Kok Eng, Certified Mediator of  Singapore International Mediation Institute

1) Dispute Resolution

In daily life, work and play, human relationships unavoidable would encounter conflicts and disputes.

Whether it is a conflict or dispute of civil natures, from ancient times till present days, they can be resolved using litigation, arbitration, adjudication or mediation.

Litigation is hearing in Court chaired by a single or a panel of Judges. It is fault-finding by nature and stresses on rights and entitlements of the parties. Generally, it is time consuming, costly and could result in win-lose or lose-lose of the case in dispute. Online hearing is seldom adopted.

Arbitration is hearing not in Court but of private setting chaired by a single or a panel of Arbitrators. Parties select and appoint the Arbitrator(s) and unlike, Judges in litigation are selected and appointed by the Judiciary. It is usually conducted in person while at time by documents only. It is fault-finding by nature and stresses on rights and entitlements of the parties. Generally, it is time consuming, costly and could result in win-lose or lose-lose of the case in dispute with the exception of Confidentiality. Online hearing is possible.

Adjudication is led by a single person, known as Adjudicator. Adjudication is usually statute-based (legislation), like the Singapore, Building and Construction Industry Security of Payment Act (SOPA) and Malaysia, Construction Industry Payment and Adjudication Act (CIPAA). Parties do not select and appoint the Adjudicator but the Adjudicator is selected and appointed by the body governing the respective legislation.  It is usually conducted by documents with few adjudication conferences for oral submissions in person. It is fault-finding by nature and stresses on rights and entitlements of the parties. It is relatively time efficient, affordable in cost and could result in win-lose or lose-lose of the case in dispute with the exception of Confidentiality. Online adjudication conference is possible.

Mediation is conducted by solo or co-Mediators in this part of the world. Co-Mediation is still not common in some other part of the world. Mediation is generally consensus by all parties for mediation but it could be mandatory when legislated in Statutes. Parties have a choice to select and appoint Mediator(s) while Parties can also leave it to the Mediation Agencies to select and appoint Mediator(s) as the case may be. Is essential mediation session is attended by all relevant parties of the dispute. It is interest-based, stresses on needs, concerns and interests. It is non-confrontational between parties. It renders opportunity for parties to solve their problem of dispute having face giving and saving on parties and their relationships preserved. It is not fault-finding by nature and stresses on understanding parties concerns and interests. Uniquely, Mediator(s) does not give advice and make decision for the parties. Mediator(s) can see party separately in private session(s). It is fast, value for money (money worth), confidential and usually results in win-win outcomes. Online mediation is gaining popularity nowadays.

2) Introduction to Mediation

Whenever there is relationship between people whether personal, commercial, business or any dealings with, between or among people, there is always a possibility conflicts or disputes arose in them over times.

There are many definitions on conflicts and disputes but, I would like to simplify conflicts as the subset of disputes. A conflict could be as simple as a different in views, opinions, or approaches in handling a matter beginning with a simple different in views, opinions, or approaches on one (1) matter to several matters over time. Whenever, the matter or matters are at its origin state, I reckon that it is still a conflict. A dispute is an accumulation of unresolved conflict(s) over time where the dispute(s) aggravated into a chain of events between the disputing parties into problems of multiple disputes, ie, “the issues” whenever the disputes remain unresolved.

It is always ideal to nib any problem at the bud or attend to a conflict whenever it first arises. But, in reality, conflict is naturally ignored at its first instance by the person or persons not realising it at its first instance at the start and thereafter giving rise to a problem. While it is advisable to address conflict(s) as early as possible, many a time, disputing party(ies) only realise the need to resolve the problem when it escalated into a dispute. However, it is never too late to resolve the dispute(s) whenever the disputing parties are willing to confront the dispute(s) face-on.

Mediation is not new to Asian cultures. Disputes were usually mediated by respected elders and industry professionals as the neutral third parties.

The features of mediation are as follows:

1. Voluntary
2. Consensus
3. Confidential
4. Communication
5. Listening
6. Understanding
7. Problem identification
8. Resolving dispute
9. Will & Ways

Voluntary in mediation (conventional) means disputing parties each and every party must be willing to embark on the mediation unless the mediation is mandatory by laws. In conventional mediation, unwilling party need not participate in mediation session should it be convened.

Consensus requires the disputing parties be in agreement to have the mediation. The agreement is preferably in writing in the form of a Mediation Agreement, however, oral agreement to mediate suffice for instantaneous mediation. The exception is when the mediation is mandatory by laws.

Confidentiality is attractive to disputing parties to embark on mediation whereby the identities of disputing parties and the deliberations in the mediation session are un-disclosable by all parties of the mediation process.

Communication is crucial in mediation with the assistance of the Mediator enabling disputing parties to make their respective statements, conversations, discussions and negotiations of the issues effectively between or among disputing parties.

Listening give all parties in the mediation session, whether disputing parties, mediator and relevant persons such as lawyers, experts and others opportunity to listen to each parties statements, conversations, discussions and negotiations.

Understanding is unique during mediation session whereby the disputing parties and Mediator having the opportunity to listen to relevant parties’ communications and understand the subject-matter of each issues of the dispute from the parties face-to-face aided with documents provided for the mediation. Such understanding of subject-matter of issues by disputing parties is usually hampered before mediation session is convened where each party holds their uncompromised position tightly.

Problem identification is particularly the skills of the Mediator after hearing, questioning, understanding and identifying from the disputing parties’ statements, concerns and issues of the dispute.

Resolving dispute is the efforts of the Mediator demonstrating his dispute resolution skills mainly facilitating the disputing parties to deliberate on the issues sometimes couple with the concerns, option generations, alternatives, criterions, relationships, objective consideration on each party’s interest, intentions and commitments benefitting them to reach amicable resolution of each issues, leading to the resolution of the dispute.

Will and Ways is pertinent to the outcomes of mediation when disputing parties participate the mediation session with willingness and sincerity couple with the assisted negotiation of their dispute in the presence of the Mediator being the Ways formulating the setting conducive for reaching an amicable settlement.

3) Conflict and Dispute

Where Conflict if not addressed and resolved, it could turn into a related Dispute.

Any word, act or thought with negative connotations involving two or more disputing parties are potential disputes.

4) Definitions of Mediation

• Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.

[The Centre for Effective Dispute Resolution] CEDR – 2013

• Mediation is best described as a voluntary and confidential process in which the parties seek to find a practical solution to their dispute. The parties are guided in their decision-making process by a neutral third party, the mediator, who assists the parties in finding a solution to which both assent and which has regard to the different concerns of those involved.

[Singapore Mediation Centre] SMC – 2013

5) Singapore Mediation Legislations

Adhoc mediations have been a practice in Singapore by community and clan elders for years until institutional mediations kicked off in Singapore with the passing of legislations and formation of several mediation centres in the late ’90, such as the Singapore Mediation Centre (SMC), Community Mediation Centre (CMC), Small Claims Tribunals (SCT), Consumers Association of Singapore (CASE) and others. Traditional styled adhoc mediations occasionally still conducted by accredited mediators.

Singapore has the following mediation legislations:

1. Community Mediation Centres Act 1998
2. Community Disputes Resolution Act 2015
3. Mediation Act 2017
4. Singapore Convention on Mediation Act 2020

However, there are other legislations with the requirements of mediation stipulated in those legislations.

6) Pitfalls of unresolved Disputes

It is advisable to nib any problem at the bud or attend to a conflict and dispute whenever it first arises.

Unattended or unsettled disputes could turn into hatred and acrimony.

Ill feeling, exasperation and aggravated thoughts are pervasive when dispute remains unresolved.

Two parties’ disputes could propagate into multi-parties involving their workmen, partners and even sympathisers when dispute remains unresolved.

The consequences of unresolved dispute could result in tensions being built-up, unco-operation and retaliations between parties.

When unresolved dispute reaches its tipping point, any disputing party might take law into their own hands against the other. There are cases where people were prosecuted and convicted for criminal acts committed.

7) Why mediate?

The reasons for parties to choose mediation are as follows:

1. Have full say over the final outcome.
2. Own self decide on the outcome.
3. Work together and not against each other.
4. Can maintain, restore and rekindle relationship.
5. Enjoy great saving in money and time.
6. Mediation is informal and non-confrontational unlike adjudication, arbitration and litigation.
7. Mediation is confidential where no washing dirty linen in the public and many a time kept under wrap.
8. Duration of mediation ranges from as 0.5 day to 3 days.
9. If mediation is unsuccessful, the differences between parties were normally narrowed.
10. If mediation is unsuccessful, parties are still at liberty to proceed to arbitrate or litigate.

8) What mediation could achieve?

Parties participating in mediation process could achieve the followings:

1. Give parties early opportunity to discuss the problems, ie, issues together with the concerns.
2. Allow sharing of other party’s grievances, hence help the other party to appreciate the problems.
3. Enable parties to understand the differences from each party’s perspective.
4. Able to clear up miscommunications or misconceptions.
5. Parties could test and take a realistic view of the problems.
6. Re-visit the relationship.
7. Foster and rekindle relationship.
8. Could analyse what went wrong and generate remedies (options).
9. Parties could see each other in a new and better light in many of the mediated cases.

9) When suitable to mediate?

Anytime is suitable time to initiate mediation, but is preferred to initiate mediation at the earlier time possible.

Any party can initiate mediation when one party encountered the following circumstance:

1. Once disagreement cannot be resolved without external help.
2. Party desires and is sincere in resolving his / her dispute.
3. Party treasure continuation of relationship or relationship is important to continue carrying out parties dealings.
4. Irreconcilable differences arise.
5. Ideal to attempt mediation before commencement of arbitration or litigation.
6. Not late even if litigation or arbitration proceeding had commenced.

10) Outcomes of mediation

Mediation can be concluded in the following forms:

1. No settlement while parties are free to bring the disputes to arbitration or litigation.
2. Dispute narrowed although not resolved. Narrowed differences allow parties to attempt self- resolution through negotiation reaching settlement themselves or parties could refer the smaller dispute to arbitration or litigation.
3. Need further mediation for a 2^nd and / or 3^rd day mediation session.
4. Settled with the signing of settlement agreement whereby the signed written settlement agreement is binding and enforceable in Courts; or having the settlement agreement recorded as judgment of Court permissible under the Singapore Mediation Act 2017.
5. On International Commercial disputes where both disputing parties’ or all disputing parties’ countries are signatories of the Singapore Convention on Mediation and those countries had duly ratified for mediations under the said Singapore Convention, the mediated Settlement Agreements can be enforced in those countries with effect from 12 September 2020.

11) Conclusion

This article deals on conflict or dispute of civil natures to be resolved using mediation.

The features of mediation are voluntary, consensus, confidential, communication, listening, understanding, problem identification, resolving dispute, will and ways as the essence of this alternative dispute resolution process.

It discusses on the pitfalls of unresolved disputes, why mediate, what mediation could achieve for the disputing parties, when suitable to mediate and the expected outcome of mediation by parties attempting mediation giving the readers an insight of these headings.