Jurisdiction - Singapore
Reports and Analysis
Singapore – The Value Of Reframing In Resolving Disputes.

6 January, 2015

Reframing a statement in alternative wording is a key tool in mediation, allowing the parties to see their arguments in a new light and test their positions. This technique is also useful in other stages of the dispute resolution process.


Receiving And Reforming


Dispute resolution systems are based on the presentation of opposing viewpoints, which in turn give rise to a third viewpoint set out in a court judgment or an arbitration award.
This exchange of views can be rehearsed by a party through a process of reframing, which involves a third party listener absorbing what the party is saying, recording it, then presenting back to the party in a different form. It means that:

 

  • the listener is required to understand the argument fully;
  • the original party receives a new perspective on the issues; and
  • both the original party and the listener may be inspired with new ways of approaching a dispute.

Reframing can also be done through exercises that impose an external standard, such as preparing a summary list of issues. By these means a case is tested, examined from several angles, and expanded through the generation of new ideas.

Internal And External Reframing


Many companies require that an early case evaluation is undertaken before a claim is started. This is similar to a peer review that is typically conducted before a final investment decision is taken in a major energy project. The reviewer, usually an in-house counsel, records what has happened and re-presents it in a prescribed format which requires an assessment of the chances of success and the costs of not succeeding. This serves to reframe the dispute for the people involved so that they can choose how to proceed.


If the decision is taken to continue with the dispute, external counsel are appointed. It is best practice for such counsel to review the case at the outset, then restate it by preparing written advice. Such advice should include a summary of the arguments and a project plan of how to achieve the company’s goals.


Some systems, such as court litigation in England and Australia, add another layer. Additional external counsel (barristers) are appointed, and the case is presented in two further ways: it is reformulated and conveyed to the barristers via formal instructions, then restated, with the barristers’ views, in a formal opinion.


Through such checking and rechecking, a company can become comfortable about pursuing a case.


Reframing In Mediation


By the time proceedings have started, the case has been presented and represented several times. A good mediator knows, however, that reframing can still be useful. In particular, there can be value in reviewing the case again with a party, shorn of the one-sided language that it may have acquired, and with added emphasis on the party’s wider interests. This may help the party see the case in a new light.


More importantly, perhaps, the mediator can take a party’s case and translate it into neutral language, to present to the other side. This helps them to see the first party’s position without any distortion that may have arisen, on either side, as a result of the engagement between the parties up to that point.


Parties in turn can use the dialogue with the mediator as an opportunity to test the arguments on both sides, and to broaden the discussion from being focussed entirely on legal issues so as to take into account wider commercial and relationship factors.
Reframing is thus a key part of mediation. Indeed, in some cases it can be the main method by which a mediator brokers a deal.


Reframing In Arbitration


Through written and oral advocacy in arbitration, each side reformulates the other side’s case in order to expose weaknesses; and, in drafting the award, the arbitrator weighs and processes the parties’ arguments. Outside these formal steps, parties can continue to benefit from reframing in three main ways:

 

  • List of issues: A tribunal may require parties to agree and file a list that summarises the issues in dispute. A party may also draw up such a list for its own purposes. The process of summarising helps bring arguments into perspective, and the list can be a roadmap for the party’s submissions.
  • Chronology: Preparing a chronological list of relevant facts can be a useful reframing exercise, particularly because it is, on the whole, not a value-laden process: the principle of following chronological order is objective rather than subjective. This means a party sees its case in a neutral form.
  • Quality control meetings: The case review that is conducted at the start of a dispute should be repeated in periodic “sanity check” sessions involving a neutral third party. This helps avoid the effect of the “group-think” mentality that can distort perceptions of a case. It also helps a party keep its case on track, and make any necessary changes in direction in light of new evidence or arguments that have been presented by the other side.

Practical Tips

 

 

  • Use every opportunity for reframing that arises during a dispute, in order to test and refine your position.
  • Reframing should start at an initial stage: an early case evaluation can help you assess whether or not to proceed with a dispute and how to go about this.
  • Reframing is particularly important in mediation, as a means by which a mediator can help parties assess their cases honestly and objectively.
  • There are a number of techniques that can help you reassess your case during an arbitration, including lists of issues, chronologies, and quality control meetings.
  • Approach such reframing candidly, so as not to distort the arguments. Your wider interests should be taken into account as well as your legal arguments.

 

Ashurst Logo

 

For further information, please contact:

 

Ben Giaretta, Partner, Ashurst
ben.giaretta@ashurst.com

 

Akshay Kishore, Ashurst
akshay.kishore@ashurst.com

 

Ashurst Dispute Resolution Practice Profile in Singapore

 

 

International (with Local Law Capabilities) Dispute Resolution Law Firms in Singapore

Comments are closed.