In support of Singapore’s drive to be an international business hub, there has been significant investment in recent years to strengthen the nation’s mediation infrastructure. A key thrust of the national mediation blueprint has been to evoke the support of the bar. And, after initial skepticism and reticence, many Singapore-based law firms are now actively broadening their advocacy skills to include effective advocacy in the mediation process.
Amongst lawyers here, there is growing recognition that effective advocacy during a mediation is a substantively different competency from arguing a case before an arbitral tribunal. Having to know how to leverage on the mediator also makes the skill different from negotiating directly with the other side.
At the seminar “Mediation Advocacy: Evolving Legal Education and Practice” jointly organized by Sage Mediation and SMU Negotiation Club, our panellists, Professor Leslie Chew SC, Mr Jason Chan SC, Associate Professor Dorcas Quek Anderson, and Mr Aloysius Goh shared their thoughts on what constituted effective advocacy for international mediations.
Balancing Zealous Representation with Fostering Trust
Drawing on his experiences as a Senior District Judge and the former Managing Partner of a major law firm, Prof Chew observed that the counsel’s mindset when entering the mediation would determine if the mediation would be successful. Zealous and strategic representation was good but this needed to be delicately balanced with tangible efforts at fostering trust.
Prof Chew explained that the skillful advocate was one who could not only discern if a matter was suitable for mediation. The mediation advocate had to be able to open clients’ minds to the benefits of accepting an outcome that seemed at the outset to be below what they thought they deserved. Having litigated, mediated, and judged hundreds of conflict, Prof Chew opined that the most favorable outcome in most conflicts was when all parties could reach an agreement on terms that saw no one incurring significant personal detriment.
Timing the Mediation Proposal to Overcome Resistance
Mr Chan agreed that the advocates’ skillful preparation was always the true measure of his competence. To this end, mediation had to be introduced to clients at the appropriate time and way. Aggressive proposals of mediation would risk misleading clients into thinking that their matter no longer had merit and inspire unfounded fears that their lawyer lacked confidence or interest in their case.
Mr Chan suggested that clients’ apprehension could be avoided if the advocate had outlined the potential for mediation as a viable path to resolution during initial strategy discussions. Advocates should be ready to explain to their clients how mediation could lead to a favorable outcome, potentially saving time, costs, and preserving relationships, and what the client’s role would be in mediation.
Cultivating A Problem-Solving Mindset
Prof. Quek reiterated the importance of lawyers approaching mediation with a problem-solving mindset. The role of the lawyers was not to be the client’s hired gun but to assist in finding a solution that was aligned with the client’s best interest. Prof Quek noted that the Law Schools of the Singapore Management University (SMU) and the Singapore University of Social Science (SUSS) had designed a progressive curriculum to equip students with diverse skill sets that extended beyond litigation to include negotiation and mediation. This comprehensive training enabled future practitioners to draw upon different skills as needed to secure the best possible outcome for their clients.
Doing Right vs Doing More
Mr Goh shared that human disputes were inevitably complex. Monetary disagreements often gestated from more profound issues. The ability of mediation to offer solutions that went beyond monetary compensation was a key part of its attractiveness. Achieving such creative and sustainable solutions required the collective effort and skill of the mediator and the advocates.
Reflecting on one of his mediations involving multiple shareholders, Mr Goh noted that the mediation took 3 days and advocates had worked through multiple permutations for amicable resolution. Ultimately, what enabled the settlement was when the shareholders spoke privately with each other about the relationships between their families. This could happen because the advocates made a collective decision to step back. For Mr Goh, that mediation reminded him that good advocacy was not about doing more but doing right.
The panel closed with observations on the importance of institutes of higher learning to ready practitioners for the accelerating changes in advocacy practice. New advancements in technology and heightened global polarization in recent times must spur advocates to invest in continual learning. Only then would advocates be able to effectively serve their clients and meet their obligations as stewards of justice and peace.
