Wednesday, April 30, 2008

How NOT to choose a mediator

Mediators, like every other professional in the world, needs sufficient business to survive. That is a given. In order to get business, mediators need to "market" themselves, whatever that word means, and however shape that marketing takes.
You may come across mediators who tell you 7, 9 or 13 reasons why you should choose them. Some (or even many) of these reasons may well be legitimate. BUT you ought to be careful in choosing any mediator who casts a negative aspersion on any other mediator, or who brags about his mediation prowess and success.
Think about it. Mediation is a collaborative, non-adversarial process. The mediator listens, understands, reframes, generates options, and by and large assumes a lower profile in order that parties to the dispute may ventilate their positions, and hopefully come to some form of agreement. There is something inherently contradictory to a bragging mediator. A mediator, by the very nature of his work, does not brag. A mediator does not hog the limelight. A mediator is not in charge of the settlement- the disputing parties are.
So the next time you meet a mediator who claims to have succeeded where other mediators have failed, be careful. If his underwear is not worn on the outside, he is unlikely to be Superman.
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2008 marks our 10th year in practice. Thank you for your support.
If you have any questions or comments, drop me an email at khenghoe@mycounsel.com.my.

Sunday, April 27, 2008

State of Malaysian judiciary- another reason to mediate

I was at the dinner hosted by the Right Honourable Prime Minister of Malaysia when he announced compensation to the Supreme Court judges who were dismissed back in 1988. The Malaysian judiciary has, in fact, never recovered from the 1988 blow, and since then, the integrity, impartiality and even the competence of the judiciary has been subjected to adverse comments.
An adversarial system can only work if the integrity, impartiality and competence of the adjudicating body is beyond doubt. Clearly there are many good and impartial judges in Malaysia. However, the reputation of the judiciary as a whole is still a work in progress. Which brings us to another reason to mediate.
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2008 marks our 10th year in practice. Thank you for your support.

Tuesday, April 22, 2008

Calm down...it's just a breathe away

It's so easy to lose the plot in the midst of conflict. When someone says something unacceptable, it triggers something within us that causes us to react. That's why there is the idiom, "making our blood boil". Fact is, anger is both an emotional and a physiological response. Some physical changes need to happen in order for us to get angry. For instance, we cannot smile and erupt in anger at the same time. The physical symptoms do not match.
If anger is both an emotional and physiological response, then it makes sense that one simple method to control anger would be a physiological one as well. Sometimes, emotions run wild. In the heat of the moment, it would take a Gandhi to remain calm. But we can always control our physical state.
A simple method...pause and breathe. Take 3 deep breaths. Be aware of our breathing before responding. The pause would make for good drama and effect- clearly sends a message to the recipient that perhaps he has said something unacceptable. At the same time, it allows us to collect our composure, and ensure our response would be effective and controlled, and most importantly, it won't be something we would regret later on.
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2008 marks our 10th year in practice. Thank you for your support.
If you have any questions or comments, drop me an email at khenghoe@mycounsel.com.my.

Thursday, April 17, 2008

Did the PM address the issue correctly?

I was at the Malaysian Bar dinner last night when the Prime Minister announced ex-gratia payment to the 6 wronged judges who were removed/suspended during the 1988 judicial crisis. The immediate reaction that comes to my mind is, "Why pay money?" Why not apologise? Why not acknowledge them to be the rightful bastion of justice? Even if the PM were not to apologise, why not distance the present administration from the past administration for the wrongs it clearly did?
Money is one way of settling issues, but it is neither the only way, nor even the most effective way. Paying money in lieu of an apology, is equivalent to the ultra-male breadwinner who provides for his family in lieu of respect, love and affection. Obligatorily sufficient, but emotionally lacking. Instead of throwing money at the problem, a simple "I'm sorry for what happened to you" followed by effective measures to put in place systems to prevent a future recurrence may have been more satisfying.
At the end of the day, I regret to note that the meal was more substantial than the speech.
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2008 marks my 10th year in practice. Thank you for your support.
For questions and comments, drop me an email at khenghoe@mycounsel.com.my.

Tuesday, April 15, 2008

The key to listening is...silence

Have you tried listening? Really, really listening to the person speaking to you. In normal conversations, we do listen sometimes. When in a conflict, however, we tend to speak more than we listen. We try to put our point across, convey our message, scream out our emotions, and do everything but sit still and try to listen (not even understanding) the person speaking to us.
An Indian philosopher once said:
I do not know if you have ever examined how you listen, it doesn't matter to what, whether to a bird, to the wind in the leaves, to the rushing waters, or how you listen in a dialogue with yourself, to your conversation in various relationships with your intimate friends, to your wife or husband. If we try to listen, we find it extraordinarily difficult, because we are always projecting our opinions and ideas, our prejudices, our background, our inclinations, our impulses; when they dominate, we hardly listen to what is being said. In that state, there is no value at all. One listens, and therefore learns only in a state of attention, a state of silence in which this whole background is in abeyance, is quiet; then, it seems to me, it is possible to communicate.
May we practice the art of silence from time to time.
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2008 marks our 10th year in practice. Thank you for your support.
If you have any questions or comments, drop me an email at khenghoe@mycounsel.com.my.

Tuesday, April 8, 2008

Will you make a good mediator?

A mediator needs to be observant not only to words expressed but to clues and cues which may be much more subtle. Being a good mediator, in many instances, means being aware of these subtle cues. Do you think you'll make a good mediator? Try out the following test just for fun, to see how observant you are to change.

http://www.nytimes.com/interactive/2008/03/31/science/20080331_ANGIER_GRAPHIC.html#step1

P/S: I did reasonably, but would not say excellently. Shucks.

Monday, April 7, 2008

Want a more positive outlook? Try this...

Lawyers are negative people. We are negative by training. In a deal, the businessman looks at the potential gain. The lawyers look at the potential pitfalls. We think that it's fine if you go ahead and make money, but if the deal turns sour, I want to make sure I have done a damn fine job in protecting your behind.
The negativity of lawyers are necessary to a certain extent, but there must be a limit to it. Otherwise, no deals will be made or finalised. How can lawyers reduce their negativity (for the sake of their clients, and for their own quality of life?)
Here's what I'm trying. I limit my exposure to the mass media. Newspapers, by their very nature, report bad news. Good news are not newsworthy. Because of that, newspapers tend to perpetuate our negativity.
I've found that with the growth of online resources, I can find out all the main news by browsing a couple of news sites, without actually reading every article. When reading, I choose only 1 article to read from 1 news site, and I visit no more than 3 news sites for my dosage of news (2 local, 1 international).
In this way, I've found I save at least an hour a day, and much stress.
Try it...who knows it will work for you too.
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If you have questions or comments, email me at khenghoe@mycounsel.com.my.

Tuesday, April 1, 2008

When to use a lawyer and when a mediator?

If you're facing a dispute, the first thing to do is run to a lawyer, right? As a 10-year practising lawyer, I'd tell you sometimes that is the case, but not necessarily so...
Here are my reasons:
1. Litigation is at the end of the day merely a matter to resolve disputes. The complex rules of law help identify the facts and issues in dispute, narrow them down, to be decided according to precedent. As parties to the dispute, you would easily be able to identify the facts and issues in dispute and to narrow them down even without the process of law.
2. Once you have narrowed down the facts and issues in dispute, then it is a matter of talking about each and every disputed fact and issue until some kind of acceptable understanding is reached. As non-lawyers, your discussion need not be confined to the limited remedies the law can provide. For example, the law provides damages for defamation. As a non-lawyer, you can explore other forms of settlement, eg by an apology dinner, by an admission in a closed-door meeting with crucial parties, etc. These are remedies which a Court of law would not be able to order.
3. Having discussed the facts and issues in dispute, you then simply put your understanding down in writing. Once you have done that, drawing up a proper settlement agreement would be just a matter of paperwork which can be done for a reasonable price.
4. If you cannot agree with the other party about any issue, this is rarely about the legal position, and it is almost always about personalities, emotions or underlying interests. If you cannot agree, you don't need a lawyer (who would perpetuate the disagreement) but a mediator (who would seek to reconcile underlying interests and explore potential settlement options).
5. There is little chance of a continuing relationship with the other party once you go into the courtroom. The legal system is adversarial in nature, which means it is a zero sum game. One party's win must necessarily mean another party's loss. If a continuing relationship (even if merely to fulfill settlement terms) is at all important to you, the court is not your best bet.
6. In fact, many lawyers have realised the futility of the courtroom, and have left behind their robes in exchange for a more conciliatory or collaborative dispute resolution process. If the lawyers who are stakeholders of the system are disillusioned over its efficacy to resolve disputes, why would you want to step into this minefield except as a last resort?
Having said all that, there are times when a Court is necessary and would prove to be the most effective mechanism. This usually applies when you require an injunction, are dealing with clearly unreasonable parties, or require enforcement capabilities beyond what can be offered by alternative processes.
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2008 marks my 10th year in legal practice. Thank you for your support.
I look forward to continue supporting you with legally sound, trusted solutions, for many years to come.
Drop me an email at khenghoe@mycounsel.com.my.