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.