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24.04.2020
MEDIATION AS A
DISPUTE
RESOLUTION
OPTION
In the Midst of COVID-19
BY SHANTI ABRAHAM
Shanti Abraham
Founder of Shanti Abraham & Associates (Kuala Lumpur) shantiabraham@saaas.com.my
Arbitrator: FCIArb (Chartered Institute of Arbitrators)
Mediator: SIMI Certified Mediator (Level 4) (Singapore International Mediation Institute)
Investor State Mediator
Adjudicator: CIPAA Adjudicator
Adjudicator with Securities Industries Dispute Resolution Centre
NEUTRAL EVALUATION
EXPERT DETERMINATION
LITIGATION
ARBITRATION
What is Mediation
◦ Voluntary & Confidential & Flexible process
◦ Neutral Facilitator
◦ Issue Identification
◦ Help parties overcome impasses and explore solutions
◦ Parties can initiate Mediation via lawyers or via intra company communications.
◦ Mediation may be contractually required
◦ Mediation can be agreed to voluntarily in place of Arbitration proceedings
◦ Mediation can be agreed to voluntarily in place of Adjudication process under CIPAA
◦ Professionals can propose Mediation (Lawyers, Architects, QS, Accountants etc)
◦ Where: Ad hoc appointments, Malaysian Mediation Centre, AIAC, MBAM
Multi-party Mediations
◦ Mediations between several parties can be effective to resolve multi level disputes
◦ Employer- Main Contractor- Sub-contractor
◦ Main Contractor- Sub-Contractor- Sub-sub-contractor
◦ Value chain mediations
◦ Used also in insolvency mediations
◦ Benefits – brings all stakeholders to the same dispute resolution chamber
◦ Notionally faster that other processes – assumes all parties are relatively sensible and co-operative
◦ Require Consultants/Legal Advisors who are also able to manage all parties
◦ Post Covid-19 - New opportunity for central mediation managers/consultants/lawyers
Experts and documents in Construction
Mediations
◦ Going to be a reality
◦ Post Covid-19 - Most likely Online Mediations
◦ Professional Mediators are already generally able to provide online mediation from their own offices or
the institutions they are empaneled with.
◦ Opens options for Stakeholders in Construction Industry who have international/inter state partners.
◦ New Opportunities for Advisors/Consultants/Lawyers who can advise clients on the benefit of Cross
Border Mediated solutions and strategize approaches.
Hybrid dispute resolution
◦ Mediations can result in partial settlements with remaining issues referred to Arbitration/Adjudication
◦ The key is having a dispute resolution strategy where decision makers understand that “winning” may
not translate to cash flow and winding up a debtor is even less likely to result in positive cash gain post
Covid-19.
Anecdote 1 from Construction
Mediations
◦ Mediation between Employer and Main Contractor
◦ Dispute gap was over a million RM and had prevailed for over 2.5 years
◦ Architect did not want to get caught in between the two nor to be a witness as not a productive use of his time
◦ Architect requested a mediation and paid for the first day of Mediation (Week 1) – cheaper than his lost time as a
witness in litigation/arbitration and doing witness statements
◦ Parties were hostile and a shuttle Mediation process was set up.
◦ Both Lawyers relatively co-operative but were skeptical as 3 court mediations failed.
◦ Architect conveyed his views to both parties in private sessions. Parties lawyers were always present.
◦ Parties willing to continue Mediation at their own costs.
◦ QS was appointed who provided non-binding report 7 days later on 2nd Day of Mediation (Week 2)
◦ After discussions on the report- Gap in dispute went down to RM300k
◦ By 3rd Day of Mediation (Week 3)- Gap in dispute was RM 50K
◦ Mediation continued via Telephone Conference – Gap closed and Parties resolved.
Anecdote 2 from Construction
Mediations
◦ Mediation between Main Contractor and Sub-Contractor (Singapore)
◦ Mediation referred by Parties Lawyers to mediation institution
◦ Co- Mediation
◦ Dispute prevailed for over 3 years before matter brought to Mediation
◦ Parties were hostile but were prepared to be in same room
◦ Both parties lawyers present and both Lawyers co-operative.
◦ Informal Translation required as one party was not fully comfortable in English. Progress deliberately and respectfully
slowed down so party could follow.
◦ Many issues raised which filled Mediators white board
◦ Mediation conducted with a mix of joint sessions, private sessions, lawyers and Mediators only and parties alone in
conference with Mediators periodic support.
◦ Matter started at 9.30am. At lunch time- it was not looking hopeful – but Mediators, Parties & Lawyers persisted
◦ 3-4pm break through in issues achieved. Positive communication continued.
◦ Matter resolved by 5.30pm same day with parties signing a settlement agreement.
Thank you & Stay Safe
Shanti Abraham
www.shantiabraham.com
Shanti Abraham & Associates
Kuala Lumpur
Email: shantiabraham@saaas.com.my