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.