In this spotlight profile, we are speaking to Jacky T.K. Lai, a mediator and barrister at IceHouse Chambers in Hong Kong. Jacky is a mediator and mediation advocate with experience in over 850 cases that includes disputes involving children and finances. Jacky has also utilized his expertise as a mediator to train others in the field (as Trainer with Hong Kong International Arbitration Centre (HKIAC), Training Qualifications UK (TQUK)/The Office of Qualifications and Examinations Regulation (Ofqual) and Hong Kong Professional Mediation Association (HKPMA), and as Coach with many other institutions).
Jacky, thank you for taking the time to speak with us today.
Can you tell us a little bit about your background and training?
I am a barrister called to the Bar in June 2007, mediator, arbitrator and lecturer on mediation and negotiation topics for universities and mediation institutions. I like to mediate on various sorts of cases including matrimonial matters. I find resolving conflicts through interest-based negotiations very satisfying, and I am grateful for the trust that I receive from the parties and learned friends.
I received my general mediation training in 2008 from the Accord Group in liaison with HKUSPACE, and my matrimonial mediation training in 2010 from Hong Kong Catholic Marriage Advisory Council (CMAC).
You have considerable expertise in your role as a mediator and as a mediation advocate. First, can you tell us why you advocate mediation first in any legal dispute?
Parties usually have too much information but lack of insight. With their entrenched long-time hatred towards one-another they become too emotionally entangled and entwined into an “Avenger” mentality, thereby losing sight of other dimensions and bigger goals in their lives. They often get tunnel-vision. Mediation gives them an opportunity to zoom-out and to hear from each other. Once communication starts, then understanding at a deeper level can commence. Of course, the parties may still choose not to settle, yet it is ensured that it is an informed decision, and not because of a lack of communication nor mutual understanding.
You have worked in numerous mediations and in various disputes not only matrimonial disputes. Is there a common theme that you notice in all your mediations that results in a successful mediation? Is compromise the key element to a successful mediation?
The common themes are: broader outlook on the disputes, new dimensions and new observations on life and the issues, a more realistic and a more objective assessment of the law, the facts and the evidence, as well as the perspectives of the opponents. Sometimes, they just need a platform, a facilitator, a face-saving setting to settle the case. We mediators are the catalyst in the sessions.
Compromise is NOT a key element to a successful mediation. Compromise is only a minimalist approach towards settlement.
What works in mediation is: Collaboration. Understanding. Communication. Objectivity. Positivity. Rethinking.
What can couples do to prepare for a successful mediation?
Have a pre-mediation meeting with a good mediator accompanied by their solicitor/counsel and supported by a trusted and beloved one. The pros and cons, the costs and benefits and the strategy and tactics, are all re-examined thoroughly, in a safe environment, and the couples are empowered to make decisions. Of course, trust and rapport are being built throughout the process, and the trauma, pains, suffering and fears are being acknowledged and addressed as well. If the wound is not healed, at least antiseptic is applied and a bandage is attached to it. Active listening and empathy are the key elements.
Through your experience, you have come across mediations where a resolution is simply unattainable. In your matrimonial mediations, what has been the key element of an unsuccessful mediation?
Inadequate insight, mutual understanding, active listening, rethinking, new dimensions or outlook of everything else are common themes. Tunnel-vision and inadequate wisdom and courage to walk a new path, objectivity, positivity are also common themes. Many times, the root is insufficient love towards themselves and the children.
In a nutshell, what is lacking is the absence of the essential elements of interested-based negotiations.
