The Ascent Of Mediation In Asia
The Ascent Of Mediation In Asia.
Leonora Riesenburg[1] & Arran Dowling-Hussey[2]
4-5 Gray’s Inn Square members Leonora Riesenburg and Arran Dowling-Hussey recently judged the Asian Institute of Alternative Dispute Resolution (‘AIADR’) mediation competition in Kuala Lumpur. Both are highly seasoned mediators and ADR trainers.
Historically, mediation was embedded in Asian cultures, long before the colonial era, as a community-driven method to resolve conflicts. Commentators such as George Lim S.C., former President of the Singapore Law Society, highlights how mediation was side-lined during colonial rule. Lim describes community based mechanisms for resolving disputes, also seen elsewhere around the world during the Middle Ages (and earlier) and goes on to explain:
‘For Singapore, Malaysia, Hong Kong, India and a number of other countries, the British came…they brought with them the ‘three c’s’: cricket, the common law and the courts. We adopted the English legal system. Our judges wore wigs and our lawyers donned robes, not unlike their counterparts in England.’[3]
Since the late 1990s there has been a resurgence of mediation in Asia. As cross-border commerce grows and economies become more integrated, the need for alternative dispute resolution (ADR) mechanisms has never been more pronounced. t.’ [4]
The AIADR Mediation Competition and the Future of ADR in Asia
The recent AIADR mediation competition bodes well for the future. Teams from India, Singapore and Malaysia competed against one another and received feedback from a cohort of Malaysian and internationally renowned judges. The support offered by institutes such as the AIADR, and its resource partner AIAC, is instrumental in building a robust mediation culture. It is expected that competitions such as the AIADR mediation event will be repeated and grow in significance, fostering a deeper understanding of the role of modern form of mediation in business and commerce across the region. Leonora Riesenburg and Arran Dowling-Hussey were proud to support this visionary initiative, in conjunction with the AIADR and AIAC.
The Benefits of Facilitative Mediation
As is well known some disputes will always need to be determined in an adjudicative manner by a judge or arbitrator. Depending on the nature of what is at issue, a facilitative approach as arises with mediation can be very successful. It has the advantage, when it works, of being quicker and cheaper than traditional litigation. The nature of mediation is that it is far less adversarial than litigation without the ‘whiff of grapeshot’. In certain circumstances commercial parties in dispute can retain or rebuild their relationship, and resolve conflicts in a way that is not always possible after a court case or arbitration. In commercial disputes, this flexibility offered by mediation is particularly valuable, as it permits companies to maintain a level of confidentiality and avoid the public scrutiny often associated with court proceedings. Statistics vary but it is often stated that where each party to the mediation is a ‘bona-fide’ participant that there is a success rate between 60-80%. Even when mediation does not result in a complete resolution, it often narrows the issues in dispute, making any subsequent arbitration or litigation more focused, time and cost efficient. For the 20-40% of mediations that ‘fail’ there can be a tiered, or escalating, approach to dispute resolution by way of ‘med-arb’ or ‘arb-med’.
Asian countries have been strong supporters of the 2020 Singapore Convention on Mediation (‘Singapore Convention’). Broadly the Singapore Convention is the mediation equivalent of the 1958 New York Convention which has allowed for the growth of international arbitration. Since the convention came in to force 4 years ago in late 2020 there is a mechanism to enforce mediation settlement agreements across borders. The 57 states which have ratified the convention include China, India, Malaysia, Philippines, Singapore and South Korea. Whilst 138 countries have not at this time adopted the convention it is very likely that the number of signatories will continue to grow in the way that was seen with the New York Convention which presently has 172 signatories.
Conclusion
The re-emergence and profound support of mediation in Asia is a testament to its enduring cultural value as a dispute resolution tool. As the practice continues to grow, supported by leading global organisations like AIADR and AIAC, it is poised to play a key role in the future deployment of mediation in Asia.
Dr. Arun Kasi, of 4-5 Gray’s Inn Square (and Arun Kasi & Co in Malaysia) told the authors:
‘ As has happened in many common law jurisdictions there has been an increased focus, in the last 20 years, on Alternative Dispute Resolution in Malaysia and Singapore and other Asian countries I work in. My practice in London as a tenant at 4-5 Gray’s Inn Square reminds me that for a number of reasons some ADR methods in particular mediation are not as well used in Asia as they are in London. Significant work is under way, particularly in Singapore, to allow for greater use of mediation. I look forward to the developments ahead. Mediators and lawyers from outside the region can play their part in helping build capacity.’
Members of 4-5 Gray’s Inn Square Chambers ADR group regularly act in mediations as Counsel, or mediator, in a range of jurisdictions including Singapore, India and Malaysia. Chambers can also support training in mediation (and other ADR methods). Queries as to the professional availability of members of the group can be directed to Deputy Senior Clerk, Stephen Somerville on +44 (0)20 7404 5252 or by email to [email protected]
[1] Leonora Riesenburg is an arbitrator and mediator practising from 4-5 Gray’s Inn Square, London.
[2] Arran Dowling-Hussey is a barrister and adjunct professor at Gujarat Maritime University.
[3] Back to “MediAsian”, Lim, George, Back to “MediAsian” | Singapore International Mediation Centre (simc.com.sg)
[4] The emergence of mediation law in Asia: A tale of two cities Nadja M. ALEXANDER, The emergence of mediation law in Asia: A tale of two cities (smu.edu.sg)
