Co-mediation: East Meets West
Presented by Mr. Jonathan Lux and Mr. Lee Wai-Pong
Date: 29 May 2020
Time: 1:00PM CEST
Mr. Jonathan Lux (Barrister, Arbitrator, and Mediator with Lux Mediation, and IMI and SIMI Certified Mediator) and Mr. Lee Wai-Pong (Principal of LWP.Sg Consultants) gave an interesting presentation on co-mediation.
Mr. Lux opened the session by sharing that world trade’s center of gravity has been moving towards the East. This is observed from the substantial increase in the volume of trade between the East and the West with key players such as China and the United States of America (USA) respectively. Accordingly, co-mediation sessions provide opportunities for mediators from both the Far East and the West to sit together to resolve international disputes.
With the mediation process being more sensitive towards cultural aspects, co-mediation would be an ideal choice when compared with litigation and arbitration. Parties would be able to respectively select mediators they think are able to understand their culture. In litigation proceedings, the presiding judge would invariably be a national of one party and thus, leaving the other party insecure about the process. Similarly, in arbitration, arbitrators are mostly made up of nationals from countries other than the parties’ nationalities. As a result, arbitrators are divorced from the culture of the parties. Mr. Lux also provided examples to illustrate the role cultural aspects play in disputes and how it could be easily overlooked unless the mediator is conscious of it.
Mr. Lee followed up by addressing the concern as to whether co-mediation would be expensive for practical reasons that it involves more than one mediator. There is an advantage to the expense – the duration of the mediation might be reduced due to the combined efforts of two mediators. It is possible for co-mediators in the same session to have contemporaneous private sessions with parties. This helps to keep the parties’ focus in the process. High value disputes involving multiple parties and their respective counsels would also benefit from co-mediation. Mr. Lee shared the belief that mediating with one mediator is good but two mediators can be better. Co-mediation not only bring benefits to the parties, it also provides an opportunity for new mediators to gain experience in the field by shadowing experienced mediators.
Disputes with a long history often become personal and parties would face difficulties in letting go as they become very involved in the matter. Accordingly, this would be an obstacle to parties reaching a settlement as any proposed settlement would be perceived as ‘not good enough’ for the other party. Mr. Lee opined that mediators should help parties recognize their cognitive abilities to better appreciate a good pragmatic settlement and not be confused with other choices and information. Accordingly, parties should feel reassured that mediation is more than signing the settlement agreement. Mediators should ‘handhold’ parties in their understanding of the mediation process and empower parties when crossing the settlement bridge. Mr. Lee concluded the presentation by affirming that cultural is an important factor in crossing the settlement bridge, and co-mediators who are aware of this aspect would be better placed to harness the situation.
The presentation was followed by a Q&A session moderated by Ms. Deborah Masucci. Some questions addressed during the session are as follows:
How should co-mediators develop the understanding between them?
- Which mediation style would the co-mediation model work best in?
- How can a mediator convince parties to think from the other’s perspective?
- How can confidentiality be maintained during co-mediation?
If you would like to listen to the session a copy is available here.
We would like to thank our friends at the International Mediation Institute for having made this session possible.