It is a misconception that the only venue for a litigant to air his concerns and grievance of a dispute is in the court room. This has its origin in the way that lawyers used to conduct contentious matters. Traditionally, lawyers are only interested in the relevant factual matrix of the dispute which can be used to formulate into legal issues. On the contrary, the underlying course of the dispute, emotional needs of the parties and non-factual issues are often ignored by the lawyers as being irrelevant to the legal proceedings. Lawyers would advise their clients not to communicate with the oppositions once the legal proceedings have commenced. Thus legal proceedings do not necessarily provide litigants with the opportunity to vent his angers and frustrations. These may well be the real cause of the dispute. 

 

Mediation on the other hand is a process which encourages dialogue between the parties in a formal and flexible environment. This is a voluntary process whereby parties to a dispute may agree to have face-to-face discussions in the presence of a trained and independent third party, the mediator. The major function of the mediator is to facilitate effective discussions and communications between the parties so as to enable the parties to understand each party's real needs, interests and objectives in a confidential setting. Once the substance of the dispute is being understood by the parties, the mediator will assist the parties to derive the settlement options which can be far more imaginative than those permitted under the court system. In mediation, the parties have high autonomy on what are the most suitable solutions which the parties can live with.

 

Mediation is not an adversarial process but a co-operative and consensus-oriented process. The mediator will act as a facilitator for effective negotiations. He does not act as a judge nor give advice on how to resolve the dispute. The mediator does not make recommendation. But he can suggest or encourage options being formulated. There is no hard and fast rule as to how a mediation can be conducted. But most mediators will adopt the standard mediation process. If a settlement is reached after the understanding of the respective needs and interest, an agreement can be drawn up by the mediator or the parties' legal representative. The settlement agreement is a binding contract and can be sued

upon, if one party fails to perform the contract and the aggrieved party may recover damages for the breach.

 

The parties can be legally represented at the mediation or seek legal advice at any stage. All information given during the mediation is confidential thus should not be used in any subsequent litigation. Owing to the voluntary nature of mediation, all parties have the right to terminate the mediation at any time of the process. Mediation is only one of many alternative dispute resolutions. In my view, it is most suitable to deal with those cases where parties have sufficient good faith to resolve the dispute, the parties would like to preserve their relationship, preference to a quick settlement, the legal liability is easily understood and to avoid the cost and time of litigation.

 

 

In other words, mediator provides a model for quick and inexpensive dispute resolution. By engaging in mediation, the parties can avoid the tension and risk of the uncertainty in litigation. The process focuses on better understanding of the issues and problems. As a result, the relationship of the parties can be preserved or even improved. As the process is confidential, sensitive and embarrassing information will not become public. The parties can decide when and where to meet. The terms of settlement available can be more diverse and flexible. The parties may commence mediation before or during any stage of the litigation possess and the settlement agreement can be kept private and confidential.

 

To the recent civil justice reform has empowered the Court to take a more active role in case management. One of the underlying objectives of the Court system in future is to facilitate the settlement of civil disputes. As from January 2010, the Court will have power to direct mediation and the parties are under a duty to assist the court to discharge this objective.

 

Albert Lam

November 2009