Mediation well suited in the Asian culture

Mediation is about encouraging understanding and building consensus. Towards this end, it would seem the Asian culture is most suited for such a dispute resolution process. Think about it. In the Asian culture:

a. We think more in terms of relationships than contracts. Who do we engage for specific works? People with whom we have a relationship. How do we engage them? We trust them, based on the existing relationship. How do we collect overdue payment? We buy them a meal, and build more relationship. In other words, the Asian culture is all about relationships, inter-personal skills, invested over the long term. Rarely do we think in terms of a black-and-white written document. Mediation too, is a promotion of relationships, and many times that holds the key to resolve conflicts where a contractual breach has clearly happened.

b. We think generally and not specifically. What time do we meet? Dinner time (not 7.15 pm). What do we tell the service provider? Hey, settle this for us (not a list of obligations and standards). Of course, the generality of our instructions could very well be the problem that leads to the dispute, but it may also be the general idea of what's important to us (as opposed to specific dos, don'ts and hows) that may lead to an easier resolution.

c. We are hierarchical, which means agreements once reached at the decision-maker's level is unlikely to be challenged, jeopardised or sabotaged in any way. The top down nature of society means only very few people need to be consulted in the decision-making and dispute-resolution process.

d. We all have a need to "save face". Saving face means having a bottomline under which we would not go (contributing to the solution being more realistic), as well as not pushing our way beyond a certain limit, leaving an open door for the other side to step down. Because we all understand the need to save face, there is less likelihood to insist on our strict rights all the way. And not insisting on one's strict rights is clearly a good step towards dispute-resolution.

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If you have any questions or comments, email me at khenghoe@mycounsel.com.my

Solving disputes by personality types

There's no magic formula for solving disputes. Every dispute is unique, and creativity comes into play in a major way. However, different personality types would need to be handled differently to enhance the possibility of a viable settlement. Here are 4 personality types I refer to when seeking to mediate disputes:

The choleric

Cholerics are powerful people. They need to be in charge. In mediating disputes with a choleric party, I ensure they take charge of both the process and the substance of discussions. Really, a choleric will direct you to settle if you allow them to. Don't even think about mentioning how terribly inconvenient disputes can be. Cholerics are not afraid of disputes, and inconvenience will not motivate them towards settlement. Instead, let them take the lead. Ask them to instruct you on the settlement terms. Let them direct you how to go about things. Let your input be merely suggestions which they will embrace as their own ideas.

The sanguine

Sanguines are people-persons. They crave popularity. They must be well-liked. Discuss settlement terms with sanguines in terms of win-win solutions for all parties. Talk about preservation of relatinships. Paint a picture of a future with all parties happy with each other. As long as a proposal is not detrimental to the sanguine, he will agree to it if it makes everybody happy.

The phlegmatic

Phlegmatics are peaceful people. These are the people who would understand when you explain that disputes are troublesome. Tell them how disputes can be costly, time-consuming and emotionally troubling. They honestly believe all these already within themselves.

The melancholic

Melancholics are meticulous. Make sure you cross the t's and dot the i's as far as these parties are concerned. Think about the consequences in detail. Don't leave out seemingly insignificant phraseology. Set out everything in full, duly plotted out and with contingencies in place. Give the melancholic the full picture- every minute detail of it. Explain the process step-by-step. The melancholic is not going to be satisfied until he/she is satisfied every little bit has been thought through and worked out.

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Questions or comments? Drop me an email at khenghoe@mycounsel.com.my