“The nature of litigation or arbitration is adversarial because it pits the two parties against each other,” she said. “The outcome doesn’t always turn out well because there’s always a winner and a loser.”
“For mediation, its nature is non-confrontational because both parties actually have to cooperate to come up with an agreement that works. The mediator's role is to facilitate the negotiations between the parties, rather than decide who’s right and who’s wrong or to give judgment.”
Mediation also tackles the issue in a different way to litigation or arbitration, Ling said.
“The mediation process is more forward thinking. It is focused on resolving the problem based on party interests rather than what has happened in the past and who is right and wrong,” she said.
Taking the process to court can also be costly with fees running up into hundreds of thousands of dollars, she said. On the other hand, mediation can cost as low as a few hundred dollars per hour.
Additionally, mediation is also a faster way to resolve disputes. It might take around six months for a case to go to trial.
“For mediation, the waiting time is very short. Sessions can be set up within two weeks and in urgent cases, can even be set up within 24 hours.”
Litigation and arbitration can also limit the outcomes available, Ling said, especially when judgments are based on legal rights and legal precedents. For mediation, parties can work together to form more creative and less formal settlements.
“Sometimes, parties just want an apology,” she said. “This is not something that a judge would issue. If feelings are hurt, one party might not be after monetary settlements. If it’s just an apology they require, this can be achieved through mediation.”
In other instances, the parties can simply tear up their old contracts and write new ones – another decision which may not be permitted in court.
Creative settlements like these can then improve the relationship between the two parties as both have worked together to form an agreement that meets their common interests.
Lastly, mediation is also confidential without any knock-on effects to future dispute resolution processes, she added.
“Everything is behind closed doors as compared to in court where everything is in the public domain,” Ling said.
“If you don’t want your reputation to be ruined and you don’t want your company’s name splashed across the media, then mediation is the way to go because it’s private.”
This confidentiality means that whatever is said during the mediation sessions cannot be used later on in court. If a settlement is not reached and mediation fails, what is said during mediation cannot affect the litigation process later on. This is also termed ‘without prejudice’.
In certain cases though, taking the dispute to court may be the only option available, Ling said.
“Mediation is a voluntary process so both parties would have to agree. If one party refuses, then you cannot mediate. Compare this to the court where, when one party files a suit, the other would have to appear.”
Mediation can only be used for civil cases, she added. In the event of criminal disputes, the court will have to intervene.
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For Clara Ling, senior executive in business development at the Singapore Mediation Centre, the nature of mediation makes it the best choice for resolving workplace disputes, especially when compared to litigation and arbitration.