Hope for the best, prepare for the worst

The BN government is in utter panic and chaos. That can be seen from their high-handed action to invoke the Internal Security Act against journalists and Oppositionists. If it is true that Anwar Ibrahim has been bluffing all along, why play into his trap with such high-handed and clearly unpopular action?

Any dispute professional would tell you that the key to disputes is the preparation. And what do we prepare for? The long and short is that we prepare for the worst. If we have made the preparations, and we have a strong BATNA, then the likelihood of the dispute turning out in our favour or to our eventual advantage is much higher.

By taking such high-handed action, the UMNO/BN government has shown that they do not know how to prepare for a dispute. Perhaps 50 years of comfortable rule has dulled their fighting instincts. They are too used to getting things their way. If they know how to prepare for the worst, they should have worked out that there is a possibility they may have to work with a PR government, and arresting Oppositionists and journalists on the eve of the takeover is probably the worst foundation one can lay for effective comeback in the future.

May BN rest in peace.

Why I always discard notes after mediation

A question was asked of me recently, as to why I did not keep notes of a mediation process. This was asked by a party who found the other party unwilling to follow-through on its obligations which have been verbally agreed during mediation. Am I unhappy with the recalcitrant party? Sure. Would I change my practice to start keeping notes? No way. Consider it:

a. Parties in mediation are already in dispute. It is not that I as the mediator am pushing parties into dispute. They are already going at each other. I'm just trying to help them reach a livable resolution.

b. Parties need to have the absolute confidence in the confidentiality of the process in order for mediation to work. If not, we might as well take every dispute to trial. Why should admissions and concessions be made, and alternative resolutions be pursued, if there is no confidence in the confidentiality of the process? I may help one party in one dispute resolve its issue by keeping notes, but I definitely won't be helping in the big picture of promoting mediation as a viable dispute resolution methodology.

c. Unlike advocates and solicitors who can hide behind the veil of confidentiality due to solicitor-client privilege, a mediator may not have the same protection in law. Hence, keeping notes can always come with the risk of the notes being subpoenaed. It would be absolutely unlawful for me to dispose of notes once they are subpoenaed, regardless whether I think the subpoena to be proper or otherwise. If I don't keep notes, then the only person they can subpoena is myself, and by the time the matter goes to trial, I would plead both legal and contractual confidentiality, as well as the passage of time having blurred my memory. Confidentiality is absolutely preserved.

Do I take notes during mediation? Definitely. Do I keep them? Not at all.

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Kheng Hoe can be reached at khenghoe@mycounsel.com.my

STAKE out an impasse

The fact that parties are in mediation means there is a dispute in the first place. And disputes oftentimes end up in impasses that seem impossible to overcome.

When mediating, I remember the acronym STAKE to understand the possible hindrances to a settlement, and based on this simple acronym, I try to pre-empt or resolve the potential impasse before it happens. Here is what STAKE stands for:

S stands for strategy in negotiations. Before mediation starts, I try to meet the different parties and gauge what negotiation strategies each party would employ. In this way, I try to avoid buying into any party's bluff, and as mediators know, parties will try to pull a fast one if they can.

T stands for time. When one party is in a rush for time, an impasse would most likely happen because there is no more proper frame of mind to discuss any proposal. Make sure there is enough time set aside from the very start. If not, reschedule the entire mediation rather than get into a rush job.

A stands for authority. The worst case scenario is to hear, after discussions have been moving along smoothly, that one party does not have the authority to settle. Getting a confirmation of authority in writing beforehand is usually useful. Parties may represent that they have authority and still back out, but they are far less likely to back out of a written authority.

K stands for knowledge. Sometimes, parties cannot settle because they are functioning on ill-informed knowledge. They may for instance be over-optimistic about their chances in Court. Or they may have imperfect knowledge about the other party's motivations. Asking lots and lots of clarifying questions (in a joint session or a separate session) can help flesh out what parties in fact know and believe, and whether these are realistic.

And finally E stands for entrenched interests. There are apparent interests and surface interests. There are also entrenched or underlying interests in every case. Unless a mediator can discover these entrenched interests which are usually unspoken, there is little likelihood that any settlement reached would be satisfying to the party concerned.

So there is my cues. The alphabets form a simple word STAKE, which is a reminder to myself to hang in there, stay the course, stay in the stakeout, always optimistic that settlement may just be around the corner. You never know...

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

Be careful how you frame it

In negotiations as in life, framing an issue half determines the result. Imagine for a moment if a lawyer were to tell you that he loses 1 case out of every 5 he fights. How comfortable would that make you?

What if we flip it around? If the same lawyer tells you he wins 4 cases out of every 5. How comfortable does that make you feel now?

Of course, losing 1 out of 5 is the same as winning 4 out of 5, but the likelihood of you engaging a great lawyer who wins 4 out of 5 cases is much higher than the likelihood of you engaging a lousy lawyer who loses 1 out of every 5 cases.

Bear this in mind the next time you go into a negotiation. There is always a flip side, and one of the sides brings you closer to a settlement as compared to the other. Choose the correct side, if possible.

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Questions or comments? Email me at khenghoe@mycounsel.com.my.

Nothing stops litigation like the... TRUTH

Litigation, by its very nature, involves at least 2 parties. That means there are 2 parties who hold different points of view, view the facts from different perspectives, and have different understanding about right and wrong. But is that always the case?

Sure, there are times when there is a genuine misunderstanding. But many times, parties merely re-furbish the facts in order to suit their own explanations. Facts are massaged in order to make a particular party to look better than reality.

Why would any party do so? Why, to avoid liability, of course. But think again. By massaging the facts, are you not compelling the other party to pursue you even the more? Would your massaged facts hold up in a Court of law? Would the fees paid for the litigation process justify the effort? Can you defend your massaged facts comfortably (and through different witnesses)?

A counter-intuitive approach is to come clean from the start. When someone makes a demand, come clean with the absolute truth. The litigators say, Whoa! That's inviting liability. But then, would you be avoiding the liability by becoming defensive?

Instead of inviting liability (which already pre-exists anyway), coming clean may be a way of minimising the liability. The aggrieved party feels emotionally satisfied. Facts can be relayed as is. The sense of integrity displayed within the company remains high. Parties can then look at the damage in a detached manner, and seek the best ways to resolve it. Only in the rarest of occasions would the person wronged want to demand for every ounce of blood. Even they would oftentimes want a resolution to the problem as quickly and as painlessly as possible.

Counter-intuitive? Definitely. Leads to more lawsuit and liability? Perhaps not. Give it a try in an appropriate case. I have tried it for some of my clients who are open to the suggestion, and it has worked wonderfully. I would love to hear the responses you get.

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Drop me a line at khenghoe@mycounsel.com.my.

Mediating Malaysian politics

With the dramatic arrest and subsequent release of Dato Seri Anwar Ibrahim, clearly Malaysian politics is building up to a climax. How that climax will look like is still far from certain, but the ante is clearly upped. It used to be that the mammoth BN would crush the Opposition with little effort. Today, it is a fight between nearly-equals.

In one corner, we have the BN with its impressive machinery, control of mainstream media, and control of funds at the federal level. In the other corner, we have a motley crew of hardened oppositionists used to fight against the tide, and one Anwar Ibrahim.

Both parties have seemingly irreconciliable interests. Both parties clearly want to remain in power, and desire the privileges that come with it. Both parties claim to represent the people's aspirations. Both parties are unwilling to compromise.

In such a circumstance, it is difficult to draw up common interests between the parties. If there is no common interest, there is no way to compromise. After all, if any solution is based on a win-lose scenario, then let me be the one to win and you to lose. That is the natural response, is it not?

But scratch beneath the surface and one can find many common interests. It is the common interest of both BN and PR to ensure Malaysia remains a peaceful, united and viable proposition. There's no point in becoming the Government if you are only inheriting problems to be solved.

It is the common interest of both parties to overcome economic challenges for Malaysia. That includes addressing the global problem of increasing oil prices, the food crisis, and potential recession.

It is the common interest of both parties to retain the moral high ground. There is no honour in retaining power if the people conclude that you are a scumbag.

Towards these ends, it would seem that the Anwar-led PR has portrayed itself to be a more viable proposition. They are speaking the language of unity, and not the language of fear propounded by UMNO ("if UMNO is weak, Malays will lose their privileges"). They are addressing their minds to the economic difficulties and not in denial ("Malaysia is one of the better countries in the world with inflation at 6% only"- ha!). They are retaining the moral high ground, and not reneging on promises made ("Anwar must come in by 2pm"- so says the police who arrested him at 12.55pm before he had the chance to comply).

If indeed the factors identified are the common interests of both BN and PR, it is time BN put some meat to the barebones of their administration. BN leaders need to realise the ground is shifting under their feet, and they are not moving anywhere near fast enough. A good mediator would cast doubts (in a private session, of course) on BN, if only to encourage them to move towards a better direction.

Come on, Pak Lah. You said you've got 2 years. Please don't waste it.

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I've not given up on Malaysia. I won't give up on Malaysia. Tell me you won't too- khenghoe@mycounsel.com.my.

Celebrating agreements

There is oftentimes so much focus on the "dispute" portion of the dispute-resolution process, that we forget to celebrate the "resolution" part of it. Considering the fact that we are all so different- even spouses who have lived together for a very long time- it is a wonder that we have so much agreement rather than disagreement. How about finding a spouse, partner, friend, client, supplier with whom you have no disagreement presently and celebrate your agreement with them? Send them a gift, a card, have a meal with them, express your appreciation, go watch a game together, have a drink with, go play a game together, etc. Celebrate the agreements you have in life and business. Who knows? The process may turn out to be a very effective form of dispute-prevention in the first place.

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I assist partners to part ways amicably. Drop me a line at khenghoe@mycounsel.com.my.