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.

Are there always shades of truth?

An underlying premise in mediation is the idea that there are possible shades (or at least multiple interpretations) of truth in any given situation. Hence, a dispute may be resolved by discussion if parties were able to see the other person's point of view and understand it (if not accept it). A doctor accused of negligence can understand the parent's anger, even if he/she rejects responsibility for the incident. A spouse can be helped to see how a different perspective would put events in an entirely different light. So we encourage parties to talk on and on, re-framing the language, questioning the assumptions, and at all times seeking a shared reality.

Here's a reality much more difficult to mediate. Is waterboarding torture? Take a look at this article on www.vanityfair.com/politics/features/2008/08/hitchens200808. There's a link to a video showing the waterboarding experiment carried out. It matters to me, a Malaysian, that America stops such questionable interrogation techniques, because I live in a country where questionable interrogation techniques have been alleged to be applied even in regular, non-terrorist, non-war scenarios. Who would have the moral high-ground to tell my government to stop such misconduct if America goes down the road of waterboarding? Zimbabwe?

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E-mail me with your questions or comments at khenghoe@mycounsel.com.my.

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

Are we pleasure seekers or pain avoiders?

Think about it...

You're on your way to a meeting, and a beautiful band is playing in the public park. What's the odds you'll stop to listen for the pleasure of it?

How about if you're on your way to a meeting, and you remembered you may not have locked your car. What's the odds you'll walk back to your car to avoid the pain of losing it?

Most people, faced with the prospect of seeking pleasure, may or may not grab the opportunity. Faced with the prospect of avoiding pain, however, they usually respond.

This is an interesting element of humanity, and one that can explain why some cases get settled and others don't. If it's a matter of getting a settlement now (pleasure) as opposed to getting a bigger settlement later, chances are a party may opt to wait. This is more so if there is no urgency for the party concerned.

However, faced with the prospect of limiting the loss now, as opposed to facing a much bigger loss later, parties who are financially able may opt to limit the loss to avoid the pain and uncertainty of a later verdict. This is the entire basis on which the insurance industry is built, pay now (medical premiums) to avoid a bigger pay later (hospitalisation costs).

Understanding this basic psyche can help mediators structure and suggest settlements. When 1 party sees it as merely a case of winning small now vs winning big later, his gambling instincts may motivate him to maintain the dispute. Somehow, a mediator needs to point to the fact that prolonged disputes is a pain for both sides, regardless of the outcome. If the pain is adequately painted, the settlement becomes so much closer.

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To receive a free booklet, Introduction to Mediation, send me an e-mail at khenghoe@mycounsel.com.my.

Tough talk permitted?

Mediators are always positive, always cheerful, always encouraging, right? Well, not necessarily.

Fact is, there are diverse types of mediators, just as there are diverse types of lawyers, coaches, CEOs, etc. Some are the perpetual cheerleaders. They keep a broad smile while the chips are down. Good for them. Others though, are more directive and involved in the discussions and process. It may even be necessary at some point for a mediator (usually in a private session) to be assertive with parties, perhaps even to the extent of telling them they are wrong.

How do we know which type of mediator is suitable? Actually, it is not so much the mediator but the parties involved. The style of the mediator has to be adapted to the personalities of the parties. A very strong personality in a party would not accept aggressive language and tactics from the mediator. He would have to be in charge of the process. A party who is very indecisive, on the other hand, may very well appreciate a mediator who tells him enough is enough- it is time to make the deal.

Is tough talk permitted? Sometimes, when it will work.

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

How can we talk about race sensibly?

Tun Dr Mahathir, the former PM, has recently become a blogger. And what is his 2nd piece of article? He opines that in a multi-racial country, you need a strong (read: strong-handed) government to keep the peace.

That is such an outdated BN model. Here's what BN used to say (before the last elections): We are a multi-racial country; We can explode into riots anytime; Leave everything to us (your leaders) to talk behind closed doors; You shut up and mind your own business.

Well, the last elections showed us that we Malaysians do not want to shut up and mind our own business. We want to mind our collective businesses as a nation, and that includes participation in an effective manner in the administration of our country. We are no longer content to allow our leaders to speak behind closed doors (especially since UMNO's voice is always shouted out publicly, whilst it is anti-UMNO voices that must go behind closed doors).

In the new reality that faces us as a nation, how can we talk about race sensibly? One possible avenue would be the Parliament, of course. With more than 1/3 opposition members in Parliament for the first time in 5 decades, there is now an opportunity for race relations to be discussed, by our leaders (as advocated by BN), in Parliament, provided the BN representatives opt to discuss rationally.

(Note: When Lim Kit Siang tried to raise the article "Let's send Altantuya's murderers to hell" in Parliament, he was heckled primarily on the basis that heaven and hell is Allah's domain not to be discussed! Considering that the BN reps were well-educated and not simpletons, clearly they were merely attempting to divert the issue)

Then there is the alternative media (as well as the mainstream media, once in a while). Columnists and bloggers can discuss to a certain extent our race relations, relying on the new-found albeit fragile freedom thanks to the 12th elections.

And finally, there is the informal avenue in the context of our own relationships. Sometimes, those who shout the loudest about race relations in fact do not have many friends from other races. I guess cultivating friendships with all races would do as a good start.

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Kheng Hoe is excited as a mediator living in Malaysia, where cultures and faiths collide.

We're featured

It has just been brought to my attention that we are the first Malaysian mediation site to be featured on the global ADRblogs list. Thank you, thank you, thank you for featuring us...

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.

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.

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.

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.

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.

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.

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.

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.

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.

Towards a more effective Opposition

Even whilst the elections are ongoing, it seems like a foregone conclusion that Barisan Nasional would win, and most likely with its 2/3 majority intact. Under such circumstances, how can there be a more effective Opposition when the new Parliament is formed? Let me suggest a few ways:

First, the Opposition must drop the notion that the BN government is solely self-centred, and does not concern about the rakyat. If the Opposition continually harps on the BN being self-centred, corrupt, etc, can anyone expect the BN to even give the Opposition a fair chance to say what it wants to say, much less to be heard? If on the other hand the Opposition work on the premise that the BN is out to do its best, albeit imperfectly, then BN may be more willing to listen to its own shortcomings once in a while.

Second, democracy generally and Opposition politics specifically cannot be merely about making demands. Demands to abolish NEP are non-starters, because to even agree to have a discussion on this issue would jeopardise BN's interests. The Opposition may do better by addressing the peripherals. For example, bargaining for more opportunities to participate in Government tenders, even under limited circumstances, may be more productive than issuing ultimatums for open tenders to be held.

Third, the Opposition must stop focusing on proposals that do not take into consideration BN's legitimate interests. BN wants to stay in power. BN wants to be respected as the duly elected government. Proposals to help them become a better government would be taken in a more positive light than proposals construed to embarrass then or run them down.

Fourth, the Opposition must give due regard to the process of democracy and the conduct of Parliament. Are the odds stacked against the Opposition? Of course. But can one Opposition member take up the challenge to gain enough respect from the Speaker and from the Government in order to be given the space to ventilate his views? Possibly. There must therefore be an end to walk-outs and shouting matches, even when the BN MPs behave badly. After all, seeing a monkey in the zoo does not compel us to behave like one.

Fifth, don't just harp on the negatives. To be accepted as a credible Opposition, and to achieve productive results despite the odds, there must be some co-operation with the BN. The BN, regardless of how bad they can be, are not always bad. Compliment them when they do well. Work with them to improve areas that are lacking.

Sixth, resort to talking instead of walking. Serious issues cannot be resolved on the streets. It must be resolved with patience and persistence, always with integrity and rational discussion. It may even be more fruitful to seek for change in less pressing items than the big ones, to seek incremental progress and build the foundation of co-operation that can be useful when addressing the bigger issues. Hard work? Definitely, but in public issues, the shortest distance may not necessarily be a straight line.

Finally, a bigger picture is at stake. If elections are perceived to be unfair and a mere pretext to bring BN back to power, then we are truly on the brink of a revolution. If the Opposition thinks this is the case, they should boycott all future elections, refuse to take office, and agitate in the streets. If however elections are perceived to be lopsided, but nevertheless a reflection of the voice of the people, then the Opposition should accept its mandated role- help create a better government, not necessarily to overthrow it.

Yes, politics is about power. But more than power, it is about effecting change and improving lives, and this can be done behind the scenes as well.

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I'll be glad to take your questions or comments. Drop me an e-mail at khenghoe@mycounsel.com.my.

Judging Negotiation Styles

There are different kinds of negotiation styles employed by different people. Obviously one person's personality, character, upbringing and a whole plethora of factors come into play when one adopts a particular negotiation style over another.

One party could be a hard negotiator. (S)he sets a high demand, and reduces it slowly. Another could be a bottom-line negotiator. Go straight to (or close to) the bottom line, and refuse to budge. One party could adopt an aggresive stance, but conceals a kind heart. Another could be sweet and smiling, but is internally hard as steel.

Is any one negotiation style better than another? If we're merely talking about styles, then I guess to each his own. Perhaps a better way to gauge negotiation styles is by looking beyond the style to the substance.

Is the negotiator bringing value to the table? That value may not be in the form of a compromise, but can be something entirely different altogether. A lateral solution, if you like. As long as a negotiator is bringing value to the table, then I would think that is a good negotiation. On the contrary, a negotiator who only seeks to chip away another person's interest without offering any value in return would be a less than desirable negotiator, no matter how sweet and smiling he/she may be.

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If you have any questions or comments, I would love to hear from you. Drop me an e-mail at khenghoe@mycounsel.com.my.

The answers are in the questions

If you have ever tried to communicate adult concepts to young children, you would understand a little of the frustrations a mediator goes through. Try explaining the concept of "credit", "democracy", "shares" and a thousand other things we adults take for granted, and you'll be amazed at how difficult the explanation process can be.

There is however a simpler way to explain the concepts to the child, and that is by asking the child specific, and guided questions. By asking open questions to draw on what the child already knows, and seeking to link the child's background knowledge and information to the abstract concepts we hope to communicate, we sometimes see the child quickly grasp the very adult concepts. In fact, the child can end up teaching us a new perspective we have yet to see.

Would the answers be wrong a lot of times? Definitely, from our perspective, but that's not the point. The important thing is the process. The art of continually questioning in order to help the child clarify more and more of his/her understanding. Eventually, the child "gets it", and at that point in time, so do we.

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If you have any questions or comments, or would like to subscribe to my free e-newsletter, drop me an e-mail at khenghoe@mycounsel.com.my.

The top 3 ways to avoid a lawsuit are to...talk, talk and talk

Thinking as a mediator, there are some assumptions I make in life. Some of these would include:

a. Assumption #1: Problems do not usually start out as monetary problems;

b. Assumption #2: Courts can only make monetary awards;

c. Assumption #3: If the source of problems is not monetary in nature, and Courts can only make monetary awards, then regardless of who wins the Court process, the parties will not be fully satisfied.

Think about it for an instance. Why would someone sue? A wife sues for divorce because she feels she has been handed the short end of the stick in the marriage. An employee sues for unjust dismissal because he feels he has been un-appreciated. A contractor sues for monies due under the contract because he feels he has earned it. (If he thinks he did a lousy job, he would surely take a smaller sum as settlement instead). On the other hand, the employer of the contractor is not paying because he has run into cashflow problems which he expects to be solved in 6 months, but he's too embarassed to tell the contractor about that. If he has informed the contractor, the contractor may be willing to take some instalment payments.

The crux of most claims therefore, is not about money, but about a breakdown in trust, understanding and communication. When one side thinks they have been treated unfairly, or were disrespected, they get angry and starts acting in ways, sometimes unreasonably, which angers the other party in return. Soon, this tremendous amount of negative energy results in a lawsuit, which ultimately becomes the only way to legally "get back" at the other person, or to get what is perceived to be one's own dues.

If a breakdown in trust, understanding and communication lies at the back of most problems, how then can businesses reduce this breakdown in order to prevent lawsuits? The answer could be simply to increase two-way communication. Businesses need to implement systems that would help increase communication with their employees, suppliers and customers. In other words, there need to be more talk, talk and talk.

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To know more about a three-step system of dispute resolution that would help encourage communication, minimise misunderstandings, and promote trust, email me at khenghoe@mycounsel.com.my.

The Peace Symbol- 50 years on

Mediation is, at its heart, an effort to make peace. It is a realisation and belief that no matter what the circumstances, there is more to be gained in a negotiated alternative as compared to a prolonged dispute. It is the firm conviction that for proper closure, parties need more than the dollars and cents that can be meted out by a court of law.

It is pertinent therefore for us to celebrate the 50th anniversary of the global peace symbol. Did you know the peace symbol started out as a symbol for the Campaign for Nuclear Disarmament in England? In 1958, the peace symbol was drawn by activitists on home-made banners and badges, and was officially launched in a public meeting in London.

Since then, the symbol has been appropriated by various different protest movements, from hippies in America protesting the Vietnam War to feminists and even anarchist punks.

Today, in a move back to its roots, the peace symbol is now re-used at anti-nuclear demonstrations the world over, just as it was 50 years ago. What goes around always comes around.