[Editor’s notes]

In this Issue, special column of “Stones from Other Mountains” is devoted to the development of commercial mediation in Singapore, mainly introducing the history, representative ADR institutions, expert mediators and professional views on international commercial mediation. The following content is compiled based on relevant information for the benefits of reader. 

We welcome contributions from professionals who are interested in commercial mediation.

1. System Construction

The modernization of commercial mediation in Singapore began in the 1990s in response to the emergence of alternative dispute resolution (ADR) in Europe and the United States, and can be broadly divided into two phases - Localization and Internationalization, striding ahead of an earlier era of dispute resolution led by community leaders and elders. 

In 1994, Singapore revised its civil procedures to encourage out-of-court settlements and in turn, an improvement of judicial efficiency. The following year, the Primary Dispute Mediation Center (PDMC) was established in the Singapore Subordinate Courts to provide court-associated mediation services for pre-trial civil cases, mainly covering civil disputes with a value of less than S$250,000. In 1996, this type of Pre-Trial Conference was formally incorporated into the Rules of Court, which allowed the court to require, order or direct parties to attend a Pre-Trial Conference to address their disputes in a fair, expeditious and economical manner.

(1996 Singapore Rules of Court — Pre-Trial Conference)

The Singapore Mediation Center (SMC) was established in 1997 to create a harmonious and prosperous business environment. In 1999, the Supreme Court promulgated new Rules of Court, which detailed the intervention of mediation in the proceedings and granted parties a waiver of court fees or a refund if the case was submitted to the Singapore Mediation Centre for mediation.

In 2013, Singapore marked an important milestone in the history of its commercial mediation legal system when the “Working Group” led by Chief Justice Sundaresh Menon and Minister for Law K Shanmugam, specifically developed a plan to develop Singapore as a high ground for international commercial mediation.

In 2017, the Singapore Parliament passed the “Singapore Mediation Act” (hereinafter referred to as the Act), which established legally-systematic support for commercial mediation and strengthened the enforceability of settlement agreements reached through mediation. At the same time, the Act explicitly excluded itself to court mediation or mediation conducted under the direction of the court, including mediation conducted by judges of the Family Court, staff and volunteer organizations. In addition, as a response to the globalization of business, the Act denied the necessity of mediation proceeding in Singapore, and a relaxed eligibility of foreign lawyers and mediators to participate in mediation had also been realized in the Act as to facilitate the internationalization of commercial mediation in Singapore.

(2017 Singapore Mediation Act)

In August 2019, 46 countries as the first signatories officially signed in Singapore — the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation, ushering in a new era of cross-border commercial dispute resolution. Since then, the commercial mediation business in Singapore has embarked on a new phase of development. In February of the following year, the Singapore Mediation Convention Act was signed as the ratification document of the Singapore Mediation Convention and came into force in September of the same year, which once again contributed to the internationalization of commercial mediation in Singapore.

(2020 Singapore Convention on Mediation Act)

II.Professional Opinions

This issue features an excerpt from the article "International Commercial Mediation and Dispute Resolution Agreements" by Nadja ALEXANDER and Natasha TUNKEL of Singapore Management University, which appeared in the Research Collection School Of Law, Singapore Management University. The full article can be viewed at：

Research Collection Yong Pung How School Of Law Singapore Management University | Yong Pung How School of Law | Singapore Management University (smu.edu .sg)

This article outlines the basic concept of mediation; how it is distinct from, but can be used in conjunction with, other dispute resolution mechanisms, such as arbitration, legal structures, and practical guidelines for drafting mediation agreements in international commercial contracts.

The five well-known models of mediation practice in cross-border disputes are:

·Directive (or Wise Counsel) Mediation 

The role of the mediator is elevated to a more authoritative persona (sometimes comparable to a 'wise one') who is expected to provide guidance and even recommendations to the parties. This mediation approach draws on interest-based negotiation.

·Evaluative (or Expert Advisory) Mediation 

The mediator guides parties towards a realistic settlement by giving opinions and views on the strengths and weakness of the (legal) position of each party. Here, mediators may also suggest options for settlement. This mediation approach draws on position-based negotiation.

·Settlement (or Shuttle) Mediation

The mediator facilitates a position-based negotiation between the parties. They may separate parties and shuttle between them. Here, mediators may share their views on various aspects of the dispute with the parties, however they fall short of making concrete recommendations for settlement.

·Facilitative Mediation 

Here the principle of self-determination of the parties regarding the brokering of a solution is in the forefront. Accordingly, the mediator assists the parties to identify relevant interests and to create alternative solutions that satisfy each party's interests. This mediation approach draws on interest-based negotiation.

·Transformative Mediation

This mediation practice model focuses strongly on the relationship between the parties and, subsequently, resolving the dispute by creating better mutual understanding and changing how the parties interact with each other. This mediation approach draws on dialogue-based approaches to resolving differences.

III. Organizations

The establishment of the Singapore International Mediation Center (SIMC) is a major step forward in the internationalization of commercial mediation in Singapore. Established in 2014 as an independent, not-for-profit organisation, SIMC utilises its unique expertise in dispute management to help clients build lasting relationships based on the belief that there are opportunities for commercial cooperation even in the midst of disputes.

According to its official website, SIMC has 258 experts registered from 12 different countries and regions, most of them being senior lawyers, industry consultants, and scholars in the field of disputes, covering a total of 16 languages.

IV. Mediation Expert

A key contributor to improving and modernizing Singapore's civil justice system, Sundaresh Menon has served as the 4^th Chief Justice of Singapore since 2012. He has practiced law in private practice and public service for more than three decades and is well-known for his efforts to promote judical aid. On March 10, 2017, Sundaresh Menon, as Chief Justice of the Supreme Court of Singapore, analyzed why mediation should be considered as part of the rule of law at the Bar Association Forum on Mediation in Singapore. He not only recommended that ADR be included in the range of procedural options available to the judiciary, but went further to conclude that the affordability, efficiency, accessibility, flexibility and effectiveness of mediation are guarantees that mediation contributes to the rule of law.

(Judge Sundaresh Menon )

 (Mr George Lim SC)

Mr George Lim SC is the Chairman of the Board of Directors of the SIMC. Mr Lim received his training in mediation at CEDR, UK and Harvard Law School. He is a certified mediator with the International Mediation Institute. In 1997, Mr Lim helped to set up the Singapore Mediation Centre (SMC).He conducts mediations regularly at the SMC, and has successfully mediated many complex commercial and cross-border disputes.

Mr Lim served as the first Chairman of the Asian Mediation Association (2009-10). In 2011, he was appointed to the Board of the IMI, an international body which promotes professionalism in mediation. Mr Lim is the co-editor of Mediation in Singapore: A Practical Guide. In 2016, he was identified by The International Who's Who of Commercial Mediation as being among 341 of the world's leading commercial mediators. In its Legal Market Place Analysis 2016, Who's Who commented that George was"widely respected among peers for his ability to take the initiative and steer a mediation towards a successful outcome".

(Thanks for the expert advice of this issue from Mr. Wen Xiantao of the Department of Treaty and Law of the Ministry of Commerce, PRC)

[References]

1. Huang Yiwen, Wang Jie, 新加坡商事调解制度的发展及其启示, in商事仲裁与调解, Issue 3, 2020.

2. Long Fei, 新加坡ADR制度的发展及启示, in人民法院报, section 8, August 16, 2013.

3. Nadja ALEXANDER, Natasha TUNKEL, International commercial mediation and dispute resolution contracts, in Research Collection School Of Law (2022).

[Laws and Regulations]

1. Rules of Court（1996）

https://sso.agc.gov.sg/SL/SCJA1969-S71-1996/Historical/19960401?DocDate=19970307&ValidDate=19960401&Timeline=On&ProvIds=PO34A-#PO34A- 

2. Singapore Mediation Act（2017）

https://sso.agc.gov.sg/Act/MA2017?Timeline=On

3. Singapore Convention on Mediation Act（2020）

https://sso.agc.gov.sg/Act/SCMA2020?ValidDate=20220401