“Welcome to a crazy world of people packed into a peculiar little island,” it beckons. Although new countries are supposed to be exhilarating—total immersion into a place so very different—I woke up the next morning groggy and exhausted as I made my way to the Hong Kong International Arbitration Centre (HKIAC). Despite the rainy, humid, hot weather, I barely notice it as we crawled from one underground building to the next. What a brilliant and efficient metro system—air conditioned too! Somehow an entire underground world exists beneath us—allowing the city folk to escape the erratic weather emerging inside their final destination.
Each individual we spoke with echoed the growth of the ADR movement in Hong Kong as it transitioned and grew. Many of the speakers we heard had been a part of the movement, and they had helped create system designs to more effectively deal with conflict.
Particularly fascinating to me was the various dispute resolution methods that grew out of the construction industry. As the population rapidly increased, the construction industry burgeoned. As the construction industry expanded, so too did construction related conflicts. Given the complexity of construction projects, having an effective dispute resolution mechanism is essential! The options are really endless: “cooling off periods,” negotiations, mediation, mini-trials, arbitration, litigation, etc. Dispute resolution advisors or dispute resolution boards became popular as an avenue to expeditiously make decisions during an ongoing contractual relationship. If parties proceed to arbitration, the board’s decision can still be reexamined by an arbitration tribunal when the main contract has concluded. Sometimes these “advisors” periodically check-in on site to ensure that things are running smoothly. These proactive steps help to minimize the likelihood of the conflict escalating and proceeding to arbitration or court, which requires addition time and resources.
Growing up a carpenter’s kid and now currently doing construction-defect arbitration/litigation, I found it quite amusing to learn about the ups and down of dispute resolution in the construction world in Hong Kong. Traveling has a way of adding a new perspective to things and making puzzle pieces fall into place.
At a different level, the legal system in Hong Kong was very much about rights and legal obligations! This was a recurring theme among speakers, professors, and dispute resolution institutions. It was finally absorbed and fully understood when an attorney from the law firm Deacons said it: “I don’t like mediation. Justice is about legal determination of right and wrong.” That mindset is very likely to hinder the ability to resolve disputes in an effective manner. As kids, when my sisters and I fought, we wanted to know who the judge (our mom) said was right. But as we became older and wiser, we realized sometimes it was best to avoid the judge all together. Forgive, forget, or correct the issue without assigning blame. Sometime it was easier to glue the ceramic vase together and put it back on the shelf without deciding who broke it (thereby avoiding punishment). There is something carnal and pleasing about blaming others. In reality though, placing the blame does not always help the situation.
It seems so much more beneficial to focus on interests and integrative bargaining than to focus on the raw human desire “to be right.” There is of course a time and a place for determination of “right and wrong.” At least in some areas, it is clear that rights must be determined (equitable issues, quiet title, injunctions, civil rights, human rights, violent crimes). But a blanket application of this anti-mediation sentiment will surely be the demise of Hong Kong! I do not mean to dwell on the words of the Deacon attorney or single him out. I know attorneys from around the world echo this sentiment. Additionally, the United States is probably one of the most litigious countries in the world (our insane discovery practices are just a small slice of how extremely litigious our culture really is!). As I mediate more and more cases, I see the desire “to be right” unfolding before me. In my attempt to help the parties see the benefits of mediation, I try to move the parties away from “right and wrong” and instead focus on resolving the dispute together.
Any advice from the experienced practitioners or accomplished mediators out there? What do you do to help the parties come to the table, to help the parties move past blame, and to reach a resolution?