“The person who tied the bell (to the tiger’s neck), is best placed to untie the bell” is Chinese idiom calling on those who created the problem to undo it, but increasingly more people now embrace the Chinese/Asian wisdom to avoid the potential sharp teeth of the courts (牙門) by appointing a wise person, a neutral professional third party, to conduct mediation to produce more time-and-cost effective and creative successful resolution of disputes with hopes of maintaining some guān xì for potential further collaboration.
Having served on a panel discussion with an expert from the police negotiation team alongside seasoned mediators in international conflict resolution, Mr. Nick Chan, BBS, MH, JP, Director of AALCO Hong Kong Regional Arbitration Centre would like to share some mediation skills to add to your toolkit for your everyday adventure.
One way to approach mediation is to first consider which of the following three categories of mediation would best “diffuse the bomb” between the parties to that dispute: (1) Facilitative Mediation, where the mediator does not comment on the case’s disputes or provide legal and professional opinions, but instead focus on interests, allowing the parties to resolve their conflicts autonomously; (2) Evaluative Mediation, where the mediator can assess the strengths and weaknesses of both sides’ arguments, comment on the accuracy of each party’s viewpoint, and predict the possible outcomes in court or arbitration; or Transformative Mediation, where the mediator tries to unearth and resolve deeper buried issues, values and viewpoints that caused the disputes and if unearthed and patched up may help future disputes of similar causes.
He would like to share the “2R techniques” which you may find helpful: (1) Reframing: This strategy involves adjusting thoughts or statements. It seeks to assign a positive meaning to what might otherwise sound like negative issues or remarks. For example, when a party says, “He is foolish; I already told him I need 3,000 pieces of clothing, or how can I explain to my clients? I won’t pay,” the mediator might reframe the statement with less emotions and say, “Are you saying that the quantity of clothing is crucial for your business? If the other party is willing to send out 3,000 pieces, you would make the payment as agreed?”; and (2) Reality Testing: This is another crucial technique. It involves strategically designed questions that allow the mediator to help each party understand what reality they face by not settling at all or by settling the dispute based on what might be incomplete parameters. For instance, if a party states, “Unless he apologizes in all Hong Kong newspapers, I won’t back down,” the mediator might say, “The other party has refused to apologize publicly in the newspapers, and your demand seems somewhat unrealistic. If this stalemate continues, you will face high costs and lengthy legal proceedings, and the outcome may not be in your favor.”
Mediators generally do not provide legal opinions or judge who is right or wrong, rather they usually focus on assisting all parties in bring out the issues, establishing common grounds, and where appropriate explore strengths of arguments, help identify potential solutions with help of some reframing and reality testing. Once a settlement agreement is reached, it can be formalized into a legally binding document. Through mediation, parties can establish more flexible, creative and practical settlement terms, often exceeding the limitations of legal remedies provided by courts.
AALCO Hong Kong Regional Arbitration Centre offers various courses for arbitrators and mediators. These programs cultivate participants’ effective communication, negotiation, and problem-solving skills, enhance conflict management techniques, and open up career development opportunities in dispute resolution.
Get trained to ‘defuse bombs’ as a conflicts resolver | The Standard