Mr Tan sues his granddaughter for breach of director’s duties after she gives a lucrative contract to her boyfriend’s company. Melissa sues her childhood friend after he fails to repay a long outstanding loan. Cases like the above are common in Singapore’s courts.
But soon many disputes like these should be resolved amicably without the parties needing to go through a full court hearing. This is because last month (Sept) Parliament approved new powers for Singapore Courts to “order any party to any proceedings to attempt to resolve any dispute by amicable resolution” under amendments to the Courts (Civil and Criminal Justice) Reform Bill).
Expected to take effect early next year, the reforms signal that amicable processes will become a norm for all civil and commercial disputes. This marks a major expansion of the scope of court-ordered mediation which is currently only applied to family disputes involving children and magistrate’s complaints.
The changes give added force to the court’s exhortations for all disputants to first use amicable means, such as mediation and negotiation, to find practical solutions. Unless there was a genuine legal issue, parties would not need to expend resources on a full court action. This makes better use of personal resources for the disputants.
Greater Access to Justice for the Marginalised
With the severe impact of the Covid-19 pandemic on the marginalised, the amendments are timely. Amicable dispute resolution processes play a major role in increasing access to justice. The high costs of adversarial processes disadvantage the most vulnerable in society. Legal aid schemes cannot meet the significant demand from low-income users and are unable to address more complex needs. Many of the recipients of legal aid do not have the flexibility to take time from their jobs for protracted court hearings. They also have weaker social and family support for the inevitable mental stress caused by the acrimony of the adversarial process.
Compared to court hearings and arbitration proceedings which can take years to complete, most mediations take only a day. Parties do not always need to engage a lawyer. The mediator is able to assist parties to take into account their personal psychological and financial needs when shaping the outcome. The vast majority of mediated settlement agreements are not breached because the terms are practical. With a flexible mix of confidential private discussions and joint meetings, parties gradually gain a sense of emotional closure and are helped to finally move beyond the dispute.
Strengthen Social Cohesiveness
From the Parliamentary debates, it is evident that the amendments also serve a deeper purpose to foster greater cohesiveness in society. Prolonged physical distancing has resulted in mental distancing. Empathy and sensitivity levels for those who think and behave differently are lowered. Mediators and counsellors have highlighted a worrying increase in xenophobia, workplace tensions, family abuse and suicides.
Greater use of amicable processes will help heal the widened psychological and social divides. Mediators are trained to work with parties to manage their emotions, generate empathy, and move away from attributing fault. Discussions are confidential and aimed at achieving a sustainable solution that meets the practical and psychological needs of everyone.
Giving Justice a More Humane Face
For the court-led mediation process to achieve these commercial and societal goals three elements, in particular, deserve close attention:
1. Broaden Performance Indicators of Lawyers
With amicable processes featuring for all disputes, lawyers will be called to re-imagine their roles as stewards, not only of the outcome, but the process of problem-solving. Dispute lawyers in a law firm are often rewarded for a combative approach in the traditional adversarial system. The media more often glorifies the lawyer who can submit a winning argument in the courtroom than the one who helps his client settle.
This needs to change. Professional performance indicators for lawyers should recognise excellence in mediation advocacy. Notwithstanding the need for confidentiality, the Singapore Law Society should find a way to recognise innovative achievements in amicable dispute resolution in the same way that top litigators are distinguished as “Senior Counsel”.
Singapore law schools should also explore installing collaborative problem-solving skills in the core academic curriculum. Competencies in inter-personal communication and empathy-building will equip the graduates to meet the responsibilities of a progressive justice system.
2. User-oriented Mediation Framework
Critics of court-led amicable dispute resolution schemes have warned that cases involving valid questions of law were not being heard thus inhibiting the development of the rule of law. Greater clarity on how the court will exercise its powers in court-led mediation will enable parties to prepare themselves. For example, does the court appoint the mediator? Will the mediator be a judge or registrar, from a panel of certified mediators, or can parties choose their own mediator? What type of disputes will be directed to mediation? Can parties who have a strong legal case refuse mediation or appeal against an order to mediate?
Judge mediators at the State Courts and Family Courts recognise that their role in mediation is much more multi-faceted than their role as judges. Having to focus on human relationships and guide parties to practical solutions requires the mediator to suspend personal judgement and wear the hats of a counsellor, business consultant, psychiatrist, coach and teacher.
Users should be able to know beforehand what they can ask of a mediator and when the mediator is crossing an ethical boundary. The Singapore Mediation Institute (SIMI), established in 2014, is the standards body for mediators in Singapore. They adopt a transparent code of standards and ethics for mediation professionals. Holding all court-appointed mediators to the SIMI standards would help ensure professionalism and affirm the public confidence in our court system.
3. Shared Leadership Amongst Stakeholders
The Singapore Mediation Centre (SMC) has managed thousands of cases for mediation and is today the default mediation centre for most civil and commercial disputes. Established under the auspices of the Singapore Academy of Law, courts refer most of their matters to the SMC for mediation. The SMC is trusted by the disputants to appoint the mediator for their matter and to administer the mediation promptly and smoothly. With a settlement rate of 70%, the SMC has not disappointed the public’s trust and this institutional model has offered a high level of predictability to users. However, with increased awareness of mediation, there is an increasing preference for one to select one’s own mediator and case manager. Such flexibility is a key advantage of mediation.
To this end, the “ad hoc” models used in Hong Kong, Australia, and the United Kingdom has gained greater popularity over the institutional one. In these jurisdictions, parties identify their own mediator and mediation centre upon the court’s direction for mediation. Ad hoc models incentivise users to learn more about the amicable processes they can use.
Private mediators and mediation service providers are motivated to distinguish themselves by improving their skills and operations. Top mediators achieve settlement rates of 85% to 90%. During the pandemic, many of them nimbly embraced new technologies to continue keeping the cost of their services competitive. This enabled them to serve marginalised clients whose mobility had been affected by the pandemic. Designing a vibrant amicable dispute resolution system that serves those most disadvantaged by the traditional adversarial system requires openness to new ideas. Giving parties a clear option to choose between state-supported and private providers will drive innovation and keep justice affordable and accessible.
Healthy Maturity of Justice
The pathways offered by the courts for conflict resolution send an important signal to shift away from over-reliance on judge-led outcomes for disputes, and for disputants to take ownership of solving their own problems.
This is an important marker for the maturity of our society; a model of justice that prioritises mutual understanding, compassion, and respect.
The reforms require thoughtful execution. Nurturing a populace with a strong spirit of graciousness and empathy cannot be the prerogative of the courts alone. The public and private sectors must come together for Singapore to continue offering a harmonious and stable environment for businesses and the individual.
This article was first published in the Straits Times on 29 October 2021.
Aloysius Goh is the founder of Sage Mediation and a principal mediator with the Singapore Mediation Centre. He also serves on the International Mediation Institute’s Taskforce on Mediation Advocacy.
Low Lih Jeng is a certified international mediator and a senior consultant at Sage Mediation.
