Mr S R Nathan, Former President of The Republic of Singapore Date: 29/08/2012
The Honourable the Chief Justice of Singapore Chan Sek Keong,
Judges and Judicial Commissioner of the Supreme Court of Singapore,
Ladies and gentlemen.
1. In our Asian culture, mediation has long been used in resolving conflicts. As a mediator, we who are brought up in different customs and beliefs, also learn with experiences how important it is to understand and tolerate the culture of others, if we’re to preserve harmony in the process of mediation. Mediation thus allows parties to consensually come together, in a neutral setting, and fully explore their issues and solutions together. Thus “saved face” and more importantly, due respect shown to each party helps to preserve valued relationships built up in the process of mediation. Unfortunately, over time, as our economy grew and society became caught up in the endless pursuit of material wealth, a fault-based culture has developed in our society. Formal adversarial processes have become the preferred modes of dispute resolution.
2. I believe the time has come for society to re-embrace mediation and reacquaint ourselves with the benefits of peaceful dispute resolution. I therefore feel the Title of my lecture aptly describes where I found myself, being an intermediary during complex and multi-party disputes and conflicts, early in my career.
3. In my 50-odd years in public service, I gained experience in mediation when I intervened and solved employment problems affecting seafarers in the 1950s, and workers in the 1960s, when I was an activist during the formative years of the NTUC. I shall reflect on some of these experiences and try to draw lessons and implications from them that would be useful in mediations.
ATTEMPTS AT MEDIATION – 50-ODD YEARS AGO
4. My role in the process of mediating disputes involving seafarers began with my intervening as an intermediary on behalf of the seafarers.
5. These disputes involved individual seafarers’ rights or the collective grievances of a ship’s crew members. The other party in these disputes was the ship’s Master or the ship owner and its agents. In issue was often the “Master and Servant” relationship that regulated work and discipline on board. Backed by archaic 19th century laws (the Merchant Shipping Acts), justice was usually only available to the “Master”. Foreign flag ships had their terms of employment governed by the laws of the respective flag countries, under whose registry the ships plied. The Embassy or Consulate concerned became the final arbiter for those disputes, but were difficult to access. As a result, aggrieved seafarers usually had little recourse to justice or no forum to air their grievances.
6. My job designation was Seamen’s Welfare Officer of the Marine Department. I went into the job with no knowledge of what my role was to be. I soon came to realize that the seafarers’ problems I encountered were in fact industrial relations problems. With no Trade Union to represent them in such disputes, I thus became an intermediary between them and their employers. I was the accidental mediator. I had no status in law that empowered me to intervene. Why employers accepted my intervention, however reluctantly, I am unable to explain. No employer questioned my role or my right to intervene. Perhaps it was my official title and my position as a government official that convinced them. Mediators do not always have to be formally appointed. I became one out of need, demonstrating my abilities and establishing my credibility along the way.
7. The disputes I encountered ranged from wrongful premature dismissal in a foreign port, unsettled wage claims and disputes arising from shipboard discipline. Invariably, the process of negotiation began with the Ships’ Masters refusing to talk, simply asserting their absolute authority as “Master” on board and their right to maintain shipboard discipline.
8. The seamen would approach me, telling me their side of the story. I listened to their claims. I took them seriously even though I sometimes had my personal doubts. To win their confidence and play the role of “protector” I had to disregard such doubts from influencing me. I would distill the dispute into a cogent statement which they would then confirm. Often, I had to manage my emotions when listening and not make pre-judgments.
9. After that, I would reason and persuade the Master or agent. Initially, my intervention as an intermediary was often rejected outright, with the Master or agent being completely adamant and unwilling to discuss. As the mediator, I brought the ships’ Masters to the table by reminding them of what failure to resolve would cost them and their Company.
10. During these sessions, I was careful not to make pre-judgments which could antagonize the parties or show bias. My body language and facial expressions also had to appear neutral. Sometimes softening the parties before negotiations began, with persuasion. Managing their emotions was also necessary. I would then clarify the dispute and separate the various issues. When there were many issues, I would sometimes start with the big ones, and the smaller issues would get settled along the way. But sometimes to get the parties talking, I would start with the small items. Do what is solvable first to reduce the number of issues.
11. In shipping disputes, pressure brought about by the crew holding up the ship’s departure was the only way to get the dispute to be taken seriously by the Ship’s Master, because a vessel tied down in port meant additional costs to the ship owners. Such hurting stalemates forced the Master to accept my intervention, and allowed the affected ship to leave port on schedule, with the resolution of the dispute. As the mediator, I helped to narrow down views until both sides seemed ready to expeditiously solve the matter. It began with urging both parties through negotiation into a mutually beneficial solution. I knew and made known what consequences lay for both parties if no settlement was reached. As many of you here will know, in a hurting stalemate, helping parties to consider the damaging alternatives to a negotiated agreement is extremely advantageous. When parties sometimes refuse to continue, a timely reminder of the potential loss is an appropriate stimulus to get negotiations going again.
12. Mediation calls for both to “give and take” in the process of their engagement. As mediator, I encouraged parties to come up with various suggestions as to how their differences could be narrowed to reach an acceptable settlement. This was sometimes done separately with both parties, and sometimes together. I learnt that no one approach was always the most effective, and different problems needed different approaches.
13. Over time, my credibility as a “peacemaker” and ability as a mediator gained wider acceptance by the shipping community, and influenced the parties to accept my mediation and cooperate. It took several years before I was appreciated by the companies and their agents. Eventually I won their confidence as a mediator, perhaps because I tried my best to be dependable, and not to be cowed by any situation. I was calm in a crisis, and not easily flustered, ensuring that issues were addressed objectively and in a proper manner, without use of aggression.
14. The first lesson I learnt in mediating was to be patient and non-partisan – listening to both parties and remaining impartial. An example would be the allowing to both parties equal air-time. By treating parties equally, it showed them that I was impartial. Furthermore, knowing how each side tended to exaggerate its grievance and load it in its favour, I had to consciously choose not to make any pre-judgments in favour of one party or the other. In any mediation, you may feel strongly for the underdog, but however much you feel it, with a view to solving it, you cannot reveal it, particularly in your body language or facial expressions. You must detach yourself from it. Sometimes that may call for you to get out of the room and take a walk, find yourself, cool yourself down, and then go back to the room.
15. Another lesson I learnt was to persevere in getting parties to find a solution. For example, when there is a possible solution and the parties are apart, sometimes you have to “pujuk” the parties to come together. It is also important to make sure that neither party loses face. One senses this by reading and responding to their body language and facial expressions, especially when the potential outcome may not meet initial expectations. A man’s sense of hurt needs to be soothed. You cannot diminish one party in the eyes of the other, for example, by scolding that party in front of the other. If you need to talk to that party individually, you also cannot give the impression that you are going to scold that party. Ideally you would suggest something like “Can we go into the other room, I need to consult you on something”.
16. Adjourning in the middle of a mediation is also a useful tool in helping parties find a solution because time can be a tool to manage emotions, allow parties to cool off, and consider the solution calmly. But at the same time, there cannot be too much time given, because mediation must have a sense of momentum; an adjournment must be part of the process rather than a complete stop.
17. The seamen I dealt with came from a variety of cultures. Thus there was a need to be aware of the cultural sensitivities. Because the seamen could be Malay, Pakistani, Hainanese, Cantonese, Hockchew, Indonesian or others, I had to develop sufficient background knowledge about the jobs and the cultural sensitivities of particular ethnic groups on board. For example, many of the Chinese seafarers belonged to secret societies and disputes could result in confrontations by gangs, hence I would try my best to prevent such confrontations from happening. In addition, when I spoke to them, I found it much more useful to talk to the seamen directly rather than through an interpreter.
18. There was once the case of a serious indiscipline by the Singapore crew on board the “Johan van Oldenbarnevelt” – a Dutch-flagged cruise ship. One of the crew who served me in my cabin quietly alerted me of the lurking problem – the presence of secret society members threatening the crew and forcing them to contribute to the daily gambling pool. Convening a Town Hall style meeting with all the crew would have been useless because the gangsters would have attended and dominated the dialogue, leaving the crew intimidated by them. So I resorted to individual interviews of the crew as they came off duty each night, for almost 2 weeks, while the ship was heading to the US coast. This gave me the leads to identifying the culprits, and notify the Ship’s Master of the problem among the crew. When the ship reached New York and the weapons were unearthed by the boarding New York Police, the Master was able to quietly discharge them, without giving them pretext for stirring up further trouble on board on the grounds of “wrongful discharge”. In this case, keeping my ears to the ground and the rapport I had earlier established with the seafarers through the individual interviews enabled me to resolve this matter quickly without nasty repercussions.
19. In this situation, it was not evident what the source of the problem was at the outset. But by not rushing into the situation blindly, my prior relationships with the crew members and my credibility as a reliable peacemaker aided the resolution of the problem. By taking time to understand the dispute and not taking claims at face value, I could gain an understanding of the background and also a good sense of the key issues in the dispute. In this highly tense situation, approaching the conflict directly would have been unlikely to be effective. Likewise, tackling a problem head-on might not always be the best way.
LABOUR DISPUTES ASHORE
20. When I became involved in Trade Union activism in the 1960s, the NTUC was in the throes of its birth. The atmosphere was one of heightened pro-Communist agitation in furtherance of their political agenda. Pro-communist unions exploited workers’ dissatisfaction, fanning the flames of bitterness and hatred among workers who were only seeking better wages and working conditions. Strikes and disruptions to industries, commercial houses and other establishments were aimed to foment bitterness, frustration and hatred of the government. It was not a situation where mediation at the outset could have brought the parties together.
21. Once again, my role this time, in the Labour Research Unit (“LRU”) required me to be again an intermediary. This time it was between the disputing rival trade unions and employers. By being patient, spending time with my trade union clients, and tolerating their idiosyncrasies, I was able to build up relationships and obtain first-hand information on developments within the labour movement. I acquired a feel for the undercurrents and rivalries between personalities in a union. This information was invaluable, for it gave me a sense of what would resonate favourably with the majority of the affected workers. Simply put, once relationships are built, gains can easily be reaped.
22. Identifying the union spokesman who exerted a strong influence was useful to persuade the majority to accept a solution, and equally, when convincing them to water down a claim to a realistic level to achieve settlement without too much acrimony or serious disagreement with management, and without work disruptions. Therefore it was always useful to make sure and identify the true decision makers and have them with you on the issue at hand.
23. Sometimes my trade union clients needed to be persuaded of the weakness of these demand. I had to be careful that they did not think that this was sellout and I was partial towards their employers. With ingenuity, it was possible that even unreasonable claims got a fair hearing, even if points were conceded in the end. Patience, tolerance and a show of flexibility were key to maintaining confidence in my role at LRU, crucial to my preventing disputes from flaring up into demonstrations, work stoppages or even a strike.
CRISIS MANAGEMENT USING MEDIATION
24. Beyond such labour disputes, I was also the man in the middle, in a security-related crisis. This was a high-visibility, tense stand-off which had regional and international ramifications, depending on how it was handled and resolved. This was the “LAJU” hijack that took place in late 1974 involving 2 Palestinians and 2 members of the Japanese Red Army.
25. In the LAJU incident, the hijackers had taken over a Shell-owned ferry which plied between Pulau Bukom and Keppel Harbour. The crew was still on board. I was involved in my capacity as director of the Security and Intelligence Division of the Ministry of Defence. There was an 8-day local standoff before a mutually acceptable solution was found, giving the hijackers a way to be flown out to Kuwait, their chosen destination. Thirteen Singapore officials were to accompany them as a guarantee of their safe passage to Kuwait. I was designated to lead the team.
26. On route to Kuwait, my colleagues and I had to work to gain the trust of the hijackers and extract their undertaking to ensure our release on our arrival in Kuwait, in return for their safe return. Throughout the flight we built rapport and maintained a healthy interaction with the hijackers to gain their support for our ultimate release at the end destination. I did this by asking the leader, a Japanese, what memories of Singapore he would carry with him, and where he had learnt English. I made small talk with the hijackers, and I made it a point to reassure them that we would carry out our side of the bargain. This helped to gain their trust. This relationship-building proved very useful when we had to resolve the difference with the Kuwaiti authorities, about our release. You see, on arrival, we found that the Kuwaiti authorities were contemplating sending us with the hijackers, another team of fully armed hijackers from the Japanese Embassy in Kuwait that they had held hostage. They joined the aircraft for wherever the aircraft would be accepted. The hijackers I had brought along, on the other hand, wanted to remain in Kuwait. It was a long drawn negotiation that lasted several hours. Sitting through the negotiations on the tarmac, I had to be calm, before an agitated Kuwaiti Master; knowing when to listen, when to talk and to avoid rushing to find a solution to our predicament. Eventually, we resolved the standoff with the Kuwaiti officials, and my colleagues and I were released to return to Singapore, thanks to the intervention of the then Foreign Minister of Kuwait and now His Royal Highness the Emir of Kuwait.
27. What lessons can I draw from my experiences, if called upon to mediate again? Firstly, one will need to have a good grasp of the story, the whole story that ended up in the dispute. Depending on who claims to be the aggrieved party, he or she only has to be asked: “Can you tell me what happened from the beginning?” That will help determine how it all began. The mediator needs to know what information he has and what he doesn’t have. Thus, to understand the underlying interest of a disputing party, it is often useful to let them go on telling their story even if you think that it is unnecessarily detailed.
28. Another useful tool which may promote settlement is getting parties to realize the impact of an unresolved dispute. I have illustrated this in the case of the shipping disputes.
29. The mediator also has to be patient and present an unruffled and calm front, however unreasonable the agitation is. I had to brace myself to act in the general interests of both parties and not to let emotions affect my behaviour. To influence the disputing parties to give up some part of their claim also requires more than ordinary persuasion and often becomes a long drawn process. I found that demonstrating active listening was a sign to a party that I was listening sympathetically to his story and it was receiving the attention expected of me. It also showed that you are sincere. Through patient listening it is possible to signal to the parties that their views were being seriously heard, in the search for a solution.
30. Listening to my experiences, you would have discerned that in all the disputes I handled, I was the man in the middle. This is the man who above all else, must remain neutral and unprejudiced in order to be a successful mediator, whether in diplomatic relations or in the commercial disputes area. I hope that there were some useful ideas and techniques in what I have shared with you, that can equip you in mediation.
31. As we live in a multi-racial, multi-religious, and densely populated island, where people live cheek by jowl, and cars on roads are bumper to bumper, there can be many friction points. As we engage each other; seemingly small incidents can lead to major quarrels; each side for reasons of "face" will not budge. There will be a tendency to be trigger happy, outshout each other and call in the police, or worse threaten legal action. All of them generate heartaches and unnecessary emotional tensions, which can be averted if we resort to mediation. Let us rekindle the use of this peaceful form of dispute resolution, which, after all, has its roots right here in Asia.