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Settlement: a mix of creativity and reality
Effective communication is the quintessence of mediation! Mediators apply a variety of communication techniques during the mediation process, among which alternative analysis is one of the most frequently used methods.
During the mediation session, the mediator assists the parties in dispute to explore for different options, of which the contents are freely developed by the parties, sometimes beyond the imagination. With all those preliminary options, the mediator usually conducts an alternative analysis with the parties to evaluating the feasibility of all options and assists the parties to select the most pragmatic and acceptable settlement.
Retirement Insurance Plan
Ms. Wong, a housewife in Mainland China, frequently travels to Hong Kong for shopping. She opened a personal account in Bank A and deposited HK$500,000 when she was 7 months pregnant. On the same day, she also subscribed to a “financial product” for her unborn child with a view that she could withdraw money from that “financial product” freely.
One year later, however, Ms. Wong found that the “financial product” was in essence a retirement insurance plan with fixed investment tenure when she failed to withdraw money from it. She was surprised and lodged a complaint to Bank A requesting refund of her contributions.
However, Bank A denied any liability. It explained to Ms. Wong that she had the right to cancel her investment during the cooling off period but the bank did not receive any cancellation request from her in the said period and thus no refund could be arranged.
Ms. Wong claimed that she had not gone through the sales documents in details because she was in a rush for her prenatal care on the sale day. Moreover, she claimed that the policy of that “financial product” was not delivered to her address in Mainland China so that she could not discover the discrepancies between its product features and her expectation timely.
During the mediation process, the mediator encouraged both parties to treasure their relationships, whilst assisted them to identify the critical issues in dispute and explore for all options. The mediator then conducted an alternative analysis to identify the best option for them. Eventually, a settlement was reached. Both parties appreciated for the efforts of the FDRC and the mediator.
(The case study above is based on an actual FDRC case. Various information including names of claimant, financial institution and its staff, actual claim and settlement amount have been altered to protect confidentiality.)