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