Comment

S. Zaiwalla

I returned last weekend successfully resolving a USD 20 million, very contentious, family property dispute with litigation commenced in various jurisdictions. I adopted the same approach which you advocate. I told the parties at the onset that I would act more as a facilitator of dialogue between the parties then as a mediator with lawyers around. I steered both myself and the parties away from litigation and legal mindset and made sure that the parties knew that I was not going to involve myself in who is right or wrong. In essence at the very beginning I also made it very clear to the parties that I would only be involved if the parties kept my involvement completely confidential of their lawyers until there was an 'in principle' agreement. I first became involved on 24 January and on Friday 14 February parties signed a settlement agreement which I titled 'reconciliation and settlement agreement'.

To begin with I met both parties separately and then had a joint meeting with both parties for a week on a very relaxed personal basis. I subtly brought home to them the message that they can both fight for five years in court with a possibility of a win but they would be five years older and would be so stressed out that they may not be able to enjoy the innings. Not unexpectedly, tempers soon began to cool and with a little bit of quiet interjection from me from time to time the two waring factions started finding their own solutions to the various issues. To my surprise, towards the end, they each started becoming more generous to the other Let me also share two other instances where an informal, non-legalistic mediation or as I put it, facilitator of dialogue between the parties, achieved amicable and just results.

Some two years ago I was appointed a mediator by four partners of a shipping group belonging to different nationalities. Two of the partners were master mariners, ie ex ship captains, one was a former chairman of the national shipping corporation and the last a financier. One of the issues was substantial overpayment by one of the partners supervising major works on the ship at a ship repair yard in Cuba. There was a suggestion that the partner concerned was derelict in his duty and had a woman in his cabin whilst the ship was in the yard in Cuba.  The allegation was that there was a gross overpayment to the shipyard. It was a sensitive issue and the other partners privately told me how strongly they felt but none of them was willing to raise it with that partner who was in his 60s. During the mediation over a cup of tea I changed the topic generally to women and the two ex-ship captains started telling me in which port they found the best women. I turned the conversation to Cuba and the partner concerned, jokingly said, Cuban women are very good - that was a light moment during which I asked that partner if he had a Cuban women in his cabin during the vessel stay at the ship yard. He hesitated but admitted that there was. I asked him if the ship yard had provided him with the women and he said no. I then turned to the question of overpayment and explained why the other partners think there was an overpayment. To my surprise he was embarrassed and accepted to pay the overpayment from his share.

The third example which I can share was between two Indians who had a dispute over a local business of a fashion shop. I could not act for either because of conflict and so they both appointed me as a hybrid mediator/arbitrator. I found that the documents all supported one of the party but the other party protested that the documents did not truly reflect the facts. They both asserted that they were right. Again, in the course of my mediation I turned the conversation generally to Indian religion. I knew that as both parties were Hindus, they both would have a family Deity whom they would worship. I ascertained from each the identity of the Deity. I then without seeking either's permission asked them to speak the truth upon oath of their individual Deity. The person whose case was supported by documents became angry but he said he would now have to speak the truth because otherwise the Deity would bring destruction upon his family. The dispute was soon settled in an honest way.

I do not, of-course, have the same experience and standing as you have in mediation, but I have taken the liberty of supporting what you have said and sharing some of my own experiences.  You have mentioned a boundary dispute between two states in which you are involved. Let me share another of my experiences. In October 1994 at the request of the Chinese Ambassador to London I facilitated an informal political dialogue to resolve the impasse which had resulted between the UK and China arising out of differences with Chris Patten, the then governor of Hong Kong. At two very confidential meetings at my offices between the representatives from 10 Downing Street and the Chinese representatives an understanding was reached on how to resolve these differences at a political level without involvement of the civil service or the government of Hong Kong. Things then moved very smoothly. A lot of mutual suspicion as to each country's motives were aired openly and solutions were found. After the initial two meetings in my office both sides were in contact with each other through the channel of communication established and built up confidence in each other's motives.