MIArb webinar: Mediation – The New Norm?

Posted in Insights

In a webinar organized on 24 June by the Malaysian Institute of Arbitrators (MIArb) with the joint support of Singapore International Mediation Centre (SIMC) and the Malaysian Mediation Centre, panellists discussed how mediation was quickly emerging as the new norm. During the session experts also highlighted the crucial role legal professional play in promoting mediation as a preferred dispute resolution mechanism for conflicts.

We have captured some of the highlights below. You may also watch the full recording below or access it here.

Crucial Drivers of Mediation

Mr. See Chern Yang, director of Dispute Resolution at Drew and Napier and Ms. Samrith Kaur managing partner of Samrith Sanjiv & Partners said that a wide range of disputes can and should be mediated. Especially with the impact of Covid-19, businesses have more incentive to resolve conflicts swiftly and at a low cost which is exactly what mediation offers, added Mr. Yang.

Vice-Chairman of SIMC Mr. Lok Vi Meng listed two observations that significantly affect parties’ inclination towards a successful mediation.

Firstly, family-run Small-Medium Enterprises (SMEs) are usually more willing to mediate. Drawing from past experiences Mr Lok noticed that these clients were more inclined to discuss the merits of their cases based on values of fairness and trust over legal considerations. As such these clients were more open and likely to benefit from creative outcomes —which are possible in mediation.

Crucially, a successful outcome depends on whether the legal counsel representing parties supported mediation, said Mr. Lok. When lawyers actively encourage mediation, parties would see this move as a strategic decision that could work in their favour. However, if lawyers are not cooperative, mediation is unlikely to happen; a successful settlement would also be unlikely, he added.

Ms. Shanti Abraham who is the founder of Messrs Shanti Abraham & Associates and an accredited mediator at the Malaysian Mediation Centre noted that in the past, lawyers whom themselves were trained as mediators would often hesitate to suggest their own cases for mediation. Typically this was due to the lack of buy-in from the other lawyers as there was a fear that their value to clients might not translate in the mediation chamber. She added that such a trend signaled the need to change the negative narrative surrounding lawyers’ involvement in mediation and for them to understand that in fact they play a central in these proceedings.

During the Q&A session the audience also raised questions on a new norm emerging within the mediation landscape —Online Mediation:

If we are using online platforms how do we ensure confidentiality? How can we ensure only relevant parties are involved in the process?

Mr. Lok:  One way to tackle this issue is to have a certain level of trust and discipline established between the parties during the online mediation session. Everyone should agree that only those involved in the conflict are present in the mediation process.

For an example, as a mediator you would have to disclose if there is a co-mediator or an understudy in the same room during mediation. The same goes for lawyers too.

However, this is not an insurmountable problem; it is a small trade off to the massive advantages that we may have for conducting mediation sessions online.