It is good to know that with the blessing and assistance of the central government, the Hong Kong Special Administrative Region is going to establish an international mediation body for the settling of international disputes.

What is mediation?

Informally, mediation is a form of settling disputes between two parties with the help of a neutral third party. One can imagine in the old days, in a village, some conflicts between two villagers were resolved with the help of the village’s respected elder(s). In modern times, and more formally, mediation, while still retaining the feature of disputes between individuals, between corporations, and between nations, being resolved with the help of a neutral third party, is classified as a form of alternative dispute resolution, or ADR. That begs the question: Alternative to what? The answer: It’s the alternative to going to court for a settlement.

In a court, the government appoints a judge, who after having heard the arguments, supported by evidence from both sides, makes a judgment on the merit of the case and often determines who is right and who is wrong, and based on that, imposes the solution on the disputants. The solution might not be a win-win outcome for both. The party who has won the case might not feel he or she has been justly awarded, and of course, more often than not, the party who has lost the case tends to feel that justice has not been served. In any case, the parties cannot decide who will be the judge. The state does. A court judgment usually results in a win-lose outcome for the disputants, but on occasions, could even result in a lose-lose situation.

In arbitration, which is a form of ADR, the arbitrator is agreed upon by the disputants. Once the arbitrator is appointed, his or her power is very similar to that of a judge. He or she listens to the arguments from both parties and decides how the dispute is to be settled, and his or her decision, like that of the judge’s decision, is binding on both parties. The results are the same as in a court judgment.

How, then, is mediation different?

One of the fundamental principles in mediation is that the mediator is there not to judge who is right and who is wrong. Though I am a medical doctor, I am also trained as an accredited mediator. In my opening statement to the parties at all mediation sessions, I always tell them: “I am not a judge and not an arbitrator. I am here not to say who is right and who is wrong. My job is to facilitate the two of you to resolve the difference between you two over the matter under dispute today.” The best mediation outcome is to have an agreement that is a win-win outcome for both parties and the relationship between the parties restored. Think of the international tensions today. If international mediation could achieve those objectives, it is worthwhile, therefore, to set up a body that specializes in settling international disputes, be that between nations or between corporations.

There are many forms of mediation, such as facilitative, interest-based, evaluative, etc. But they all have that underlying principle that the mediator does not act as a judge.

In August 2019, the United Nations Convention on International Settlement Agreements Resulting from Mediation, also called the Singapore Convention on Mediation, was open for signature in Singapore, and China was one of the signatories. Traditionally, China and other Asian countries steeped in the Confucian culture tend to favor the use of mediation over a law court in the settlement of disputes. Although Singapore has set up the Singapore International Mediation Center already, it is worthwhile to promote and strengthen the use of mediation in settling international conflicts in the world in general, and in Asia in particular, by Hong Kong’s setting up such an international body. It’s wise that Hong Kong calls its proposed institution “international organization for mediation” rather than “mediation court”. If the body were to be called International Mediation Court, the use of the word “court” might deter some parties from using the Hong Kong body to settle disputes by mediation. The name International Organization for Mediation is more appropriate and will encourage its popular use.  

The author is a hematologist practicing in Singapore. He is also a principal mediator of the Singapore Mediation Centre. He does mediation at the Singapore State Court as a State Court volunteer mediator, as well as for the Singapore Ministry of Health Holdings, on medical complaint cases. In addition, he is an accredited mediator by Regent’s University London.

The views do not necessarily reflect those of China Daily.