Helping Parties to “Get Back to Business”

Lee Kok Eng and Shanti Abraham are two seasoned #mediators in the Built Environment (BE) sector. Although their journeys into #mediation had very different beginnings, today, both are ardent advocates of mediation as a cost-effective, efficient and effective platform for resolving disputes and ensuring that construction projects are able to “get back to business”.

Kok Eng graduated with a Bachelor of Science (Hons) degree from the National University of Singapore (NUS) in 1987 and obtained a Masters in Building Science from NUS in 1993. His association with the construction sector began during his National Service days when he was assigned by the army to a vocation involved in maintaining and constructing military facilities. He subsequently carved out a career as a Quantity Surveyor, and was involved in public and private building and infrastructure projects such as hospitals, hotels, industrial buildings, schools, MRT, reclamation projects, power plants etc. ?When the Singapore Mediation Centre was established in the late 1990s, he was one of a group of pioneers from the construction industry who were trained to become mediators. He believes that mediation has a positive impact on the progress and profitability of construction projects as disputes can be resolved quickly and amicably.

Shanti graduated with a Bachelor of Laws (Hons) degree from NUS in 1994. She was called to the Singapore Bar in 1995 and to the Malaysian Bar in 1999. She has been in legal practice for more than 25 years, covering construction law, general litigation and arbitration, as well as corporate work. She was introduced to mediation by her husband (a litigator) who had earlier trained as a mediator in Malaysia. She was hooked the day she joined her first mediation training course and the passion to improve her skills and to contribute to the industry has not abated after more than 10 years. Today, Shanti positions her practice as a “Mediate First” or “Mediate Preferred” practice, and is a trainer with the Singapore Mediation Centre.?

You can read Kok Eng’s and Shanti’s mediator profiles in the SIMI Registry of Accredited Mediators.

In this interview with SIMI, Kok Eng and Shanti share about their journey to becoming professional mediators, their views on the qualities needed of a professional mediator, and the challenges that keep them going in their practice.

Q:?Why are parties in the built environment sometimes hesitant to undertake mediation? What can be done to encourage the growth of mediation professionals?

A:?Both Kok Eng and Shanti opine that it is the lack of understanding of what mediation is about.?Kok Eng adds that for the small players such as subcontractors and suppliers, they are concerned that it may offend their clients or affect business continuity. Shanti feels that part of the reason could be a dedication to an adjudicatory system where the decision is left to a third party, the thrill of winning, and the idea that being the wealthier party gives that party an advantage in an adversarial process.

Kok Eng believes that when the mediation industry grows and there are more cases, there will be more construction professionals willing to become mediators. Shanti says it is important to celebrate the mediation advocates, who design a mediation-focussed mechanism, and give them and their clients recognition and even tax benefits for early problem-solving in the BE space. Without them, and without mediation, there would be greater delays in completing construction projects.

Your personal journey to becoming a professional mediator

Q:?What are the key factors which have helped you to gain recognition as a professional mediator?

Kok Eng: As a mediator, proper training, proper accreditation (with established bodies in the industry) and a track record are very important. I am accredited in Singapore, Malaysia (Asian International Arbitration Centre (AIAC)) and India (Indian Institute of Arbitration and Mediation (IIAM)). As for my track record, I believe I have mediated over 1,000 cases as a mediator, with about 100 of such mediations being construction-related cases.

Shanti: As a mediation advocate, I would say that the three main factors are persistence, passion, and walking the talk. Last year, my firm was involved in a multi-million dollar, 8-figure ringgit construction-related arbitration which we successfully steered to mediation. The dispute, which had been brewing for several years, took exactly one year to get from first letter with an invitation to mediate to a signed Mediated Settlement Agreement. It involved having to go to court due to advisor “hesitancy” by our client’s counterparty’s litigators. Fortunately, their transactional lawyers stepped in at the right time to side-step the delay caused by the litigators. Part of the mediation agreement was a withdrawal of court proceedings. The judge congratulated the counsel for assisting parties to reach a solution and “getting back to business”. In this case, mediation was able to achieve the commercial objectives of the joint-venture partners who had potentially many decades of collaboration ahead of them.

Editor’s note : The SIMI Credentialing Scheme is a professional #standards scheme developed by SIMI to recognise the experience of professional mediators. It has been tailored and developed with the intention of gradually building up a cohesive and robust pool of professional mediators in Singapore and the region. SIMI offers a tiered credentialling scheme which allows individuals with diverse mediation skills and experience to receive recognition. Read more about the SIMI accreditation scheme here.

Q:?What are the technical and commercial skills needed to get disputants to appoint you as a mediator?

Kok Eng: I would say all round domain expertise.?Construction disputes can be complicated and involve different professionals in the BE sector such as the main contractor, project manager, quantity surveyor, building surveyor etc. It is important for such cases to be mediated by an industry expert, who also has good knowledge of construction law. My years of experience in these different roles have given me the domain expertise to be able to ask the various experts the right questions during a mediation session. This helps all parties to know where the other parties are coming from and to improve understanding of the issues. It also opens up new perspectives to the parties which they may not have considered before.

Q:?As built environment experts yourselves, how do you use your domain knowledge to guide parties without being prescriptive?

Kok Eng: From my over 40 years of experience in the construction industry, having taken on many different roles, and with about 30 years of mediation experience, I am very familiar with the technical aspects of the industry.?This enables me to ask the correct questions to industry experts to understand the issues in a case better, and to present alternative positions for their consideration. Sometimes, after a discussion, the industry experts are able to see a different perspective which opens their minds to a different solution.

Shanti: One tool I use is to draw “pictures” or “maps” or “structures”.?Typically, we eventually work on common diagrams which everyone contributes to. This way, we can sometimes populate a timeline or event more accurately to see where a problem arose or to get a better perspective of what happened. In BE mediation, I sometimes suggest one non-binding independent expert on an issue as a way of guiding the parties to make their own assessment of technical or financial matters. It has been observed that non-binding expert determination is increasingly being used.

On the qualities of a professional mediator

Q:?How do you avoid or deal with a “conflict of interest” situation in an industry with many interconnected businesses, especially if you discover it only when the parties have appeared before you?

Kok Eng & Shanti: Disclosure is key. The construction industry is a small one, and it is very possible that the mediator has been involved in one way or another in the case before. With disclosure, if all parties give their consent, it is not an issue. It is also important for a mediator to be guided by the principle of neutrality in any mediation that they conduct.

Q:?What are the unique challenges of a multiple party dispute? What is the critical or unique action a mediator must take to set the scene for a successful mediation in such situations?

Kok Eng: I once mediated a 12-party MCST case, which involved around fifty persons. This case was one where the developer brought in its consultants and main contractor, and the main contractor also brought in its subcontractors. It was challenging managing the case as I had to juggle between multiple sessions of joint and private sessions (to manage emotions, uncover the issues and resolve each one separately). The critical aspect was to deploy my people skills to establish trust and respect with all the parties so that they would be willing to be open and transparent with me. This greatly helps with resolving issues between the parties.

Shanti: I once mediated a case which involved four parties and 14 persons. Two of the parties took the lead, with the other two observing. Mediators must be prepared to commit to some pre-mediation time to design the mediation process properly and to consider how to manage the different issues which would arise, particularly when there are multiple parties.

Q:?How do you handle a party in a mediation case who continues to be adversarial, or is unable or unwilling to provide a proper account of the case, or you sense is not acting in good faith?

Kok Eng: This is where the private session in mediation is a very powerful tool. For a party who is adversarial, I would bring them to a private session and give them the airtime to express themselves and try to manage their emotions. If I sense that one party is not being honest, and this must be based on the facts that have been presented, I will probably use a private session to confront the dishonesty. In the case of incomplete information, and this is where my domain knowledge is useful, I would know what questions to ask to fill in the gaps.

Shanti: I always give a margin for nervousness and do not assume that hostility is meant to be disruptive. I have found that fear is often the real reason for adversarial behaviour, but I have trained myself not to flinch. That way I respond and don’t react to “misbehaviour”. Private sessions are the best place to turn a mirror to someone displaying adversarial behaviour to deep dive into what was the trigger.

Q:?What are some best practices that would ensure a successful mediation? Can you share examples that you have practiced or that you have come across in your experience as a mediator.

Shanti: Let parties bring whatever documents they would like to but ensure that they have a core bundle of a maximum of 300 pages and tag the documents they would like to refer to. This will help the parties to really focus on the issues in contention. I always read the documents that the parties want me to look at provided it is part of an agreed list of issues identified by the parties. It is a matter of respecting the parties, as well as giving the parties due importance (or “face”) that we are prepared to look at facts and figures and understand circumstances.

There is a perception that a party wanting to assert facts is framed as being “difficult”. However, my experience is that listening or rather, being prepared to listen, can be transformative in a mediation where the parties self-edit what they want to say once they recognize that you are really listening to them and aiming to understand their perspective.

Kok Eng: Be patient and ready to listen. It is important to listen and analyse the information that the parties are presenting. Always read through all the information provided, and it is best to read through it a few times if possible.

Q:?Which types of (i) qualities and (ii) skills or behaviours of a mediator are key to ensuring a successful mediation?

Shanti: Patience, persistence and self-respect.

Kok Eng: People skills like active listening, asking questions, summarising, and building relationship and trust. You must also possess process competency – you need to follow a structured or agreed upon process. Finally, you need to have a problem solving capability – to narrow the differences although you may not necessarily reach a settlement. These qualities have to be developed through experience.

Q:?If you are in a dispute with another party and you are attempting mediation to resolve the dispute, what are the traits of the mediator you are hoping to see, and why?

Shanti: Neutrality, patience/good nature, maturity.

Kok Eng: A track record and experience in the domain. A mediator who is solution-oriented, directive, inquisitorial, polite and fast-thinking.

Q:?What has been the best compliment you have received from a client you acted for, or from a party who engaged you as a mediator?

Kok Eng: At the end of a mediation session, one of the parties gave me a hug to express their thanks.?This was a dispute that had stretched for five years and caused great distress. It involved damage to a house owned by an elderly couple in their 80s when construction work by a government authority was carried out near their home. The couple were very relieved when the settlement agreement was reached.

Shanti: From a party to a mediation, “I can finally close this chapter thanks to you.” In another mediation, which took 10.5 hours to complete, one party commented appreciatively that they were grateful that I wielded “a whip and a cushion” – alluding to the fact that I was very firm but encouraging at the same time.

Q:?What is your best/singular advice to any young person who wishes to have a certain income stream from being a mediator or mediation advocate?

Shanti: Work on being part of the ecosystem first. To establish credibility as a mediator, you need to have a perspective from a professional or business angle before taking on mediation. As for the mediation advocate, mediation advocacy is a premium service, and you need to recognise the value you bring to the process. “Win-win” and conversely “Lose less, lose less” takes extra work. Mediators and mediation advocates should be financially respected and rewarded accordingly.

Q: How important is it for a mediator to constantly develop/advance themselves professionally in their mediation practice? Why is it important?

Kok Eng: I would encourage all mediators, whether they are new or matured practitioners, to always continue learning from experienced mediators (both local and overseas).?The latter will enrich our understanding of mediation practice because they have faced a variety of issues, environment, culture are all very different from ours. Knowledge and skills can be learnt from books and training courses, but strategy and technique come from learning from the experiences of other mediators too.

Shanti: Extremely important. We must be life-long learners. There are so many tips and techniques happening behind many confidential doors. We have to share and learn and fill our respective toolboxes.

Editor’s note : As a standards-setting body, SIMI has an established Code of Conduct which provides SIMI Mediators with a concise statement of the ethical standards they are expected to meet. Find out about the SIMI Code of Conduct here.?