SINGAPORE CONVENTION WEEK: Insights into a US$1B international dispute

By Ng Xin Yi

Why spend money and time to fight a case when you can make a deal where it benefits both parties?

Mediation is never about settling the issue but resolving it instead. This was heavily emphasised in the $1-billion international dispute that was successfully mediated by Mr George Lim SC in Seoul last year. 

In a panel discussion organised by the Singapore International Mediation Centre (SIMC) during Singapore Convention Week, Mr Lim ‒ together with opposing counsel for the case: Ms Sae Youn Kim (for POSCO) and Mr Gregory Williams (for FuelCell Energy) ‒ shared how they resolved a seven-year-long matter in 3.5 days. The settlement agreement was signed three months later. It was a rare mediation which was published (click here for the Global Arbitration Review story) as listed FuelCell Energy was required to make a US stock exchange filing.

“The mediation started out rocky,” said Ms Kim. The first attempt at mediation in San Francisco did not proceed and had to be canceled after much planning. As tension rose, parties began to feel anxious. Instead of calling the mediation off, both parties decided to continue to push ahead and scheduled another hearing. 

Parties agreed to hold the mediation in Seoul. Even with the mediation finally taking place, it did not start out smoothly. Neither party wanted to start the conversation. The mood in the room was heavy. Suddenly, the scent of freshly brewed tea and mooncakes wafted through the cold, stiff air. 

To break the ice, Mr Lim, who is also SIMC Chairman, had bought premium tea and delicious mini-mooncakes from Singapore for the parties. The mooncakes were a festive delicacy as the Mid-Autumn Festival was just around the corner. 

“My clients were taken aback as I did not prepare them for it,” chuckled Mr Williams.

Ms Kim, who previously had another matter successfully mediated at SIMC by Mr Lim, disclosed to the audience that she had informed her clients that the mediator might serve tea! Even though her clients had not been entirely taken by surprise, the tea and mooncakes eased the tension and helped kick start the mediation process. 

Serving tea and mooncakes was not merely an act of hospitality. The parties’ reactions also gave Mr Lim valuable insights into their personalities. Personalities play a big part in mediation, said Mr Lim, The more positive the parties are, the smoother the negotiation will be. 

“As a mediator it is crucial to appreciate and understand the personalities of the parties,” he added.

 

The mediation took 3.5 days to settle all but one item on a long list of issues. When asked by moderator Mr Thio Shen Yi SC about the secrets behind this mediation, Mr Williams said, “Since the parties involved in the mediation want something that only the other party can give, why not make a deal?” He went on to explain that a mutually beneficial deal was the main focal point behind most of the issues the parties talked about.

Another secret: focus on the future instead of the past. Without a doubt, there were bumps in the mediation process, but instead of trying to go past them, the mediator and the parties put them aside and came back to them at a later time so that the parties could maintain their momentum and not be discouraged by obstacles. At times when both parties were frustrated and discouraged at not being able to resolve an issue, Ms Kim would always remind her clients of all the good things that had happened, the number of issues resolved and how many more were left. 

Reflecting on the experience, she reminded everyone, “Once you go over a hill, you do not want to look back.”  

When asked about how important lawyers are in the mediation, all the panelists agreed that lawyers are just as important as mediators. 

“Lawyers are someone that the clients will turn to for advice when they are stuck,” Ms Kim pointed out. “They all play a part in the mediation process from the start to the end, therefore it is important that they get the proper training they need.” 

Mr Williams also added that lawyers are not only there to guide the pace of the mediation but also act as a helpline.

The mediation was a rousing success with both parties coming to a mutual agreement which resulted in future business and a continuance of the business relationship after a lengthy long-drawn dispute spanning several jurisdictions. 

Under the facilitative guidance of mediator and their counsel, parties were able to focus on the overall benefits of a resolution which met their commercial interests, and could go beyond their strict legal rights in order to satisfy their true business objectives.

And it took a pot of tea and sweet mooncakes to set them down that path.