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Singapore’s new Mediation Act – raising the bar to new heights in the dispute resolution arena

7 June 2017 Features
By Dr. Christopher To

With mediation becoming more globally fashionable, the Singapore Government in January 2017 passed into law a Mediation Statue (“Mediation Act”) to further solidify its innovative approach to assist disputants in resolving their difference in a cost and efficient manner.

In terms of the scope of application of the Mediation Act, it does not apply to all mediations in Singapore nor does it apply to mediations which stipulate some other existing mediation scheme as being applicable1. It applies only to those (a) mediations conducted wholly or in part in Singapore; or (b) elsewhere, provided that the underlying mediation agreement (between the parties) stipulates that the Mediation Act or Singapore law applies to the mediation.  In essence the Mediation Act could apply to mediations that are not physically situated within the territory of Singapore.

The Mediation Act introduces four innovative approaches to enhancing Singapore’s status as the preferred venue for resolving one’s disputes.

Enforceability

Previously, settlement agreements concluded as the result of mediations were only enforceable on the basis of one suing in contract. Parties could treat their mediated settlement agreements as court orders only if the dispute had been before the Courts.

The Mediation Act now provides an expedited process whereby parties can enforce their mediated settlement agreement as a court order, even if they have never been before the Singaporean Courts. In order to take advantage of this new innovative feature, the following criteria must be met:

  • The parties must agree to apply to court to have their settlement agreement recorded as a consent order;
  • The settlement agreement must be in written form2, thus creating a sense of certainty; and
  • The mediation must have been administered by an approved mediation service provider or certified mediator(s). This gives prominence to those providers and indirectly recognizes only certified mediators, which raises the stakes in mediators competency levels thus creating some form of quality assurance, which disputants can safely be assured that mediators have the right credentials to assist them in facilitating the resolution of their disputes. 

Of all the attributes, this aspect is likely to have the biggest impact towards mediations of an international context as it ensures that mediated settlement agreements possess the necessary ‘teeth’ to be enforceable. Notwithstanding any clarification to the contrary, the mediated settlement agreement will be treated as a court order so long as it is administered by a “designated service provider” or a “certified mediator”. Because an order by a Singaporean court may be recognized and enforced in other jurisdictions – either by reciprocal statutory scheme or via common law, this aspect is likely to have significant international ramifications in further spearheading Singapore’s status as the preferred dispute resolution hub.

Confidentiality

At present the confidentiality of mediation communications in Singapore is governed by a mixture of common law, equitable remedies and parties’ agreement. In reality, this leads to uncertainty when it comes to communications relating to mediation in particular situations that are not covered by any of the above sources of law.

The Mediation Act clarifies the situation subject to certain narrow exceptions. Discussions in the course of mediation are confidential3 and cannot be disclosed to third parties or in court or in arbitral proceedings. Additionally, under the Mediation Act leave must be obtained in order to admit mediation communications as evidence in arbitration/litigation4.

Stay on Legal Proceedings

The Mediation Act also empowers courts to stay proceedings commenced in breach of a mediation agreement on the application of the other party5. This allows parties to preserve their position in litigation pending the outcome of the mediation. The broad drafting style of the Mediation Act also enables the courts to give practical case management directives as part of the stay. It has been suggested these will include the abilities to set terms and conditions relating to the stay and stipulate timeframes for mediation proceedings.

Foreign Lawyers

Arguably the most talked about development within the international legal community is the removal of the restriction on counsel and mediators to practice Singaporean law. These restrictions, enumerated under the Legal Profession Act (Chapter 161), will no longer apply to mediations administered by an approved mediation service provider or certified mediator(s).

In practice, this will give parties more flexibility in appointing counsel and mediators that truly suit their needs without having to constraint their choice. A significant step forward, in Singapore’s drive to become a barrier free nation of one’s preferred venue for the resolution of disputes.

The passing of the Mediation Act further signals Singapore’s commitment towards its drive in prompting alternative forms of dispute resolution outside the court settings. The new statutory protections (in relation to confidentiality and suspending contemporaneous litigation) are powerful incentives for parties contemplating a venue to resolve one’s dispute to elect Singapore as their preferred choice. With Singapore’s commitment, drive and determination, we are bound to see further innovative trends in the arena of dispute resolution.

(Written with the assistance of Mr. Randalph Pasteur Lai, a student at the City University of Hong Kong, LLM programme on Arbitration and Dispute Resolution).


[1] s 6, Mediation Act
[2] s 4, Mediation Act
[3] These exceptions are contained in s 9 of the Mediation Act including inter alia circumstances when parties consent to a disclosure or where it is necessary to prevent/minimize injury or neglect.
[4] s 10, Mediation Act
[5] s 8, Mediation Act