Winning isn’t everything: What we really lose when we think we win

Reflecting on 30 years of practice, Francis Goh, Partner at Harry Elias Partnership LLP and SIMC Specialist Mediator, calls us to rethink what it means to win. Now more than ever, protecting what we truly value has never been more relevant.

Watch the full interview or read the interview transcript below. We thank Francis for sharing his views.

I have personally seen for myself, how clients who came in at loggerheads walk away with reputation, and relationships restored. And to me, that is real victory.

My name is Francis Goh, I’m a disputes lawyer. I’m at Harry Elias Partnership. I head the International Arbitration Practice Group, as well as the Private Client Advisory Practice Group.

How did you get involved in mediation?

Back then, in the 1990s, and I’m talking this early 1990s. Litigation was the way to go. Having someone say, ‘I’ll see you in court,’ or ‘I’ll sue you!’ wasn’t just something for the movies. That was what clients actually said to each other.

I remember in my third year of practice, we fought a bitter trial and at the end of it, the client looked at me and said, ‘Okay, Francis, well done. Thank you to you and your team.’ (I was under a senior partner back then.) And he says, ‘Your team won. But really, what did we win?’

And I that got me thinking – there has to be a better way, a more efficient way, a more humane way of resolving disputes. And so I was an early adopter of mediation.

Mediation allows you to get off the dispute bus at strategic junctures. It allows clients to actually reset, rethink and relook at their dispute in creative ways.

Living in a time of Covid-19, how has dispute resolution changed? What do you foresee in a post-pandemic world?

COVID-19 was a reality check for everybody in the world and I think it has brought time and cost efficiency into focus. What we’re seeing is that clients understand that litigation means time and costs – time and cost that may not necessarily have to be spent.

Mediation allows you to get off the dispute bus at strategic junctures. It allows clients to actually reset, rethink and relook at their dispute in creative ways, and it allows them to have a safe zone in a confidential mediation, where they can go to the other party and say, ‘Hey, let’s talk, let’s settle.’ And I think having mediation now go mainstream is such a powerful development, and it’s going to change the future of dispute resolution.

And I have personally seen for myself, how clients who came in at loggerheads walk away with reputation and relationships restored. And to me, that is real victory.

Can you illustrate ‘real victory’ for us?

I had this privilege of co-mediating a case with Wee Meng. Turns out that it was the number 100th case that SIMC has and that was really exciting.

What struck me was that it was two foreign parties, no connection with Singapore whatsoever. They were prepared to fly into Singapore, to have their case mediated under the auspices of the SIMC. These were international parties who felt that Singapore had the resources and the neutral forum to help them get their dispute resolved through mediation.

The parties were here fighting over defects, fighting over damages for delay. The other party was saying, ‘you haven’t paid me.’ So it seems like your classical fight-over-money-and-damages/defects type of case.

The atmosphere in the room was icy, tensed, and I think that would be understatements. Parties were not looking each other in the eye, they refused to talk to each other. And so very quickly, after the general session we broke up into private sessions, and that’s where we started chipping away. What started out as ‘I didn’t get paid, I want to get paid’ turns out to be just the surface. What was really underneath it, were hurt feelings. And let me fast forward now to the end:

At the end of the day, the two parties were talking to each other. Now this happened around December and shortly before Christmas. One of the parties told the other, ‘when we are back in home country, let’s meet up for dinner.’ All right, as icing on the cake, they also then wanted to do their Christmas shopping and everyone parted away happy and I think we had a great Christmas.

Mediation is the only process that I know of in my 30 years of practice now that is able to heal hurts, restore relationships and give genuine solutions. So am I a fan of mediation, of course. Is it going to be the trend of the future? Yes, I say bring it on.