The Magic of the Mediator

The UN’s Singapore Convention on Mediation is being signed in Singapore today. Although it only covers commercial disputes it marks another step in the right direction of raising the number of disputes solved by a method which often seems like magic. It isn’t that. It is common sense, a rare and somewhat magical process.

We have forgotten to apply common sense in many spheres of life because we have been taught that only our own agenda counts. A fundamental mistake in an overcrowded world.

In 2019 Singapore and China agreed a deal to establish an international mediation panel in Singapore to resolve disputes arising from projects under China’s Belt and Road Initiative. Singapore already deals with a sizeable number of mediation cases. It is in an excellent position to do so. Why is mediation the coming process for resolving differences?

‘Might is power’ is still true, unfortunately. We know what clout a big company or a highly positioned individual has. However stupid their judgment, top people have a disproportionate say in what is right and what is wrong. It has ever been. In the early days of humankind you killed your opponent. Civilised people think that is no longer necessary, which doesn’t stop many unnecessary killings in the world. What are we aiming at to resolve a disagreement?

The answer is reasonableness. Human judgment is aided by measurement but measurement does not substitute for it. Although statistics cannot themselves lie, they can be used to lie. And in a world of fake news they can be substituted and misused to mislead and distort. Reasonable, on the other hand, is a human-made concept appealing to the emotions as well as the intellect. Ideally suited to Brexit where both parties seem to be battering their heads against a wall.

How does it work? Mediators do not rule like judges. Those in dispute remain in charge until they have agreed the resolution. Then they both agree to abide by their pact. Thus the problem is resolved. Mediators simply facilitate the discussion. They know some techniques for bringing disputers together but they are themselves neutral. An excellent way of looking at this is a system that has been tried with considerable success. It isn’t actually mediation, rather a variation on it. I’ll tell you why it hasn’t been universally adopted.

But first, the system works like this. ‘A’ is in dispute with ‘B’. They appoint ‘C’ where ‘C’ is a respected citizen, not necessarily a judge or lawyer. Someone not known to either party. Both parties agree to be bound by the decisions of ‘C’ who is paid a modest fixed fee to do one thing – to choose the more reasonable of the two submissions. ‘C’ is not allowed to suggest modifications to either submission. ‘C’ has only to choose the more reasonable of the two submissions.

‘A’ and ‘B’ are given a reasonable time to put their submissions together and a reasonable limit to the amount of data they can present, whatever is consistent with the issue being resolved. At the end of that time ‘C’ decides which is the more reasonable submission. What actually happens during the preparation of the submissions? Obviously, the two parties pare their submissions so that they may become the more reasonable of the two. In the end the gap between the two submissions is so small that frankly it doesn’t matter which one is chosen.

This system has the great advantage that an element of common sense is introduced rather than the legal niceties that can cloud a negotiation. It also eliminates the ‘you said’ / ‘I said’ to-ing and fro-ing of so much legal judgment. 

Mediation has a long way to go before it is accepted as the obvious route to more harmonious living. That is no reason for it not to be encouraged and developed.

I said I’d tell you why it hasn’t already been universally adopted. On reflection, I think I’ll let you fathom that out. But I’ll give you a clue with the initials of the person who explained it to me.

They were just CJ.