Litigation gone crazy

Can you believe that a New York lawyer sent letters of demand to hair salons around the area where he lived for discriminatory practice? According to this lawyer (a male), he was distressed by the fact that the salons charged different prices to cut the hair of a male as opposed to a female. He claimed that this amounted to sexual discrimination, and hence wanted damages.

Interestingly, it was a matter of fact that the salons in fact charged men less than women. If at all they were discriminatory, he was in fact a recipient of the benefit of the discrimination.

Just goes to show how when we are insistent on our own views, we can go slightly off the mark.

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

You may also view my other blog at disputeresolutioncentre.blogspot.com

What exactly does a mediator do?

Mediation is an attempt to resolve differences by structured negotiation. The mediator does not dictate the flow of the negotiation, neither does he seek to impose his thoughts on what a proper settlement would look like. It is the parties' process, and the parties take charge of the outcome.

If that be the case, what then is the role of the mediator? Whilst a mediator does not control the outcome of mediation, he does control some aspects of it. Primarily, the mediator controls the environment in which the mediation takes place. This includes setting the right frame of mind for each party going into the process, laying down some ground rules, helping parties listen to each other, down to the nitty-gritty of ensuring the physical set-up of mediation is conducive.

Of course, when it is said that a mediator controls the process, that does not at all mean the mediator imposes himself on the parties. Neither does that mean the mediator ensures the process would be smooth and peaceful throughout. On the contrary, some letting off of steam may just do everybody some good.

It does mean, however, that parties are given every opportunity to ventilate their views and listen to the other side, and that they would understand clearly what their best alternatives are going forward.

In the end, a mediator is not so much a director as he is an active spectator whose input should be limited to keeping the parties on the discussion track.

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

Also, do visit my other blog at disputeresolutioncentre.blogspot.com.

Mediation is just one more alternative

Sometimes in alternative dispute resolution (ADR) circles, you find people who are so sold on the idea of ADR methods like mediation, conciliation and arbitration, that they seek to promote such methodologies for all conflicts. Although I'm an ADR practitioner, I regret to disagree.

ADR, of which mediation is one of the possibilities, is an alternative. It is one of the routes available to resolve disputes. It is not the be-all and end-all. I always believe that mediation is a good possibility when there is a genuine dispute. There are times when there is no genuine dispute, for example:

a. when a forger wrongfully utilises a well-known brandname, mediation would not work;

b. when a debtor seeks only to delay the payment of debt without any legitimate grievance, mediation is not suitable;

c. when it is more important to get the principle correct, rather than to find a resolution (for example in public interest litigation), mediation is not appropriate;

d. when it is important to set a precedent and not merely to obtain compensation for one case, mediation will not resolve the underlying issue.

There may be other scenarios which render mediation unsuitable. Fact is, mediation is suitable for many scenarios, but not for all. When considering an appropriate dispute resolution mode, you would do well to speak to a practitioner experienced in both conventional dispute resolution practices (such as litigation) and ADR to get a better grasp of the most appropriate mode of resolution.

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

Questions for our new elected representatives

The elections are over and done with, and what an election it turned out to be. As I write this, the Perak government is working out how to keep its coalition intact, whilst rumours persist of issues arising within the Selangor government over the post of Deputy Chief Minister. Within the BN, questions linger over the political viability of the present leadership.

However one chooses to dissect the political results, one thing is clear: The Malaysian citizenry has voted, and it has voted in a way that it thinks best secures its future. Now is no longer the time for fancy sound-bites and slogans. Now is the time for the new representatives to work together (wherever possible) to create a better future for all of us. Here are some questions I would like to pose to our new elected representatives if I were ever given the opportunity.

1. Your track record of working with people of diverse backgrounds, beliefs and cultures.

Please tell us a specific instance in which you were a decisive influencer to bring together different categories of people who were at odds with each other. What did you do? How did it pan out? Were you a peacemaker or a deal-breaker?

2. Your role models.

Please name three role models in your life, whether living or dead. What specifically did they do which inspired you? How is their example relevant to Malaysian society today?

3. Your big issues and willingness to work with "the other side"

Name three pet issues you will champion in Parliament or the state legislative assembly. Tell us your specific action plans to ensure success. In what ways and to what extent would you work with "the other side" to ensure your agenda is carried?

4. Bi-partisan partnership.

Can you name specific people in every political party whom you will be willing to work closely with in order to achieve your objectives? How do you intend to do that? What would you give in exchange for their co-operation?

5. Willingness to compromise.

For the top three issues on your agenda, how much are you willing to negotiate? In what areas are you willing to compromise in order to keep the agenda alive? What factors will you consider when required to compromise? What are the absolutely non-negotiables as far as you are concerned?

6. Dealing with foreign investors and the economy.

What specifically will you do differently from the states not run by you in respect of attracting foreign direct investment, and to boost the local economy?

7. Intra-country divide.

Describe in your view what kinds of arrangements can be negotiated between (a) Islamists and secularists; (b) Ketuanan Melayu and Malaysian Malaysia ideologies? What will be your strategies to promote the middle ground?

8. Your leadership style

Do you believe in building consensus or providing strong leadership? If you believe in building consensus, how do you avoid being viewed as weak or indecisive? If you believe in strong leadership, what systems will you put in place to ensure you are inclusive in your decision-making?

9. Openness and flexibility

What is one major issue on which you have changed your mind in the last ten years? What caused you to shift your views? What happened subsequently?

10. Addressing the brain drain

What specific steps will you take to address the brain drain of Malaysia generally, and the state which you control specifically?

11. Preparing for a potential global meltdown

What steps will you take to prepare Malaysia generally, and the state which you control specifically, for the potential global meltdown?

12. Your standard of reference.

When a crisis hits, and you have to make a decision without advice or counsel, what do you rely on for guidance? Party lines? Past experience? Holy Books? Self-help gurus? What?

Here's wishing all elected representatives a fruitful term, and towards a better Malaysia.

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If you have comments or questions, e-mail me at khenghoe@mycounsel.com.my.

Perceptive differences colour how we view disputes

In every dispute, every party thinks they are in the right...until they allow themselves to understand the other party's viewpoint. Partly, this is due to the fact that different people view life through different perceptions, and hence two seemingly contradictory views may in fact be both correct, viewed from different perspectives.

Consider for a moment your own perceptive bias:

a. Do you consider yourself as highly independent, or interdependent? A highly independent person would view rights and wrongs from an individualistic viewpoint, but an interdependent person may consider it more in the context of society. Hence, as an individual, fundamental liberties may be important. From a societal perspective, one could perhaps understand how under certain circumstances, fundamental liberties may be justified to be suppressed for the greater good.

b. Do you consider objects in a focused manner, or are you in tune with the context as well? For example, when seeing a house, do you focus on the detailed renovation works of the house itself, or are you more attuned to the surrounding parks, houses and roads? A potential buyer focused on the condition of the house may agree to pay a higher price if his attention is drawn to the attractions in the neighbourhood. Conversely, a seller with pride in his neighbourhood may agree to sell at a lower price if his attention is directed to the actual conditions of the house he seeks to sell.

In other words, every genuine dispute arises from parties adopting different perspectives to view the same issue and incident. To reach common ground, the party with a panaromic viewpoint must be directed to zoom into specifics, and the party who notices the minutest detail must be directed to take a step back to see the bigger picture. Hopefully, after that, the pieces of the jigsaw will fit for both.

Hope never fails, right?

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If you have any questions or comments, drop me an e-mail at khenghoe@mycounsel.com.my.

Want a longer life? Mediate!

As frivolous and corny as the title sounds, the Portland State University School of Community Health had concluded a 2-year study of 666 older adults, aged 65 to 90. Their finding? The more negative social exchanges one engages in, the poorer one's health can be expected to be.

It must be noted that the conclusion is one of association, not of cause-and-effect. In other words, there is no scientific theory that says disputes lead to ill health. There is however a scientific observation that says, people who are often engaged in disputes are often also suffering from ill-health.

Question is, why take chances where our health is concerned?

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