SECTION 1 INTRODUCTION TO MEDIATION
3.1.1 The mediation movement in Singapore was actively revived in the 1990s. Currently, mediation is not only used for private disputes but forms an integral part of the Singapore legal system. It is widely used as a mechanism of dispute resolution in courts, government departments, businesses and other specific industries.
SECTION 2 DEFINITION AND BENEFITS OF MEDIATION
3.2.1 In order to grasp the impact of the mediation movement in Singapore, it is necessary to understand the key concept and benefits of mediation.
A. Concept of mediation
(1) A neutral third party, the mediator, assists the parties in dispute to find a practical solution
3.2.2 Mediation is best described as a voluntary and confidential process in which the parties seek to find a practical solution to their dispute. The parties are guided in their decision-making process by a neutral third party, the mediator, who assists the parties in finding an agreeable solution.
(2) Mediation can be used for many purposes
3.2.3 Mediation can be used for many purposes, including settlement of disputes, management of conflicts, negotiation of contracts, policy-making and conflict prevention.
(3) Techniques of mediation range from evaluative to facilitative approaches
3.2.4 Depending on the parties and the matter to be decided, the mediator can adopt different mediation techniques. They range from an active involvement in the substantive outcome of the dispute using evaluative or directive approaches to a more facilitative model where the focus of the mediation process is to assist parties achieve a settlement by managing the process of negotiations between them.
B. Benefits of mediation compared to adjudicatory dispute resolution mechanisms
3.2.5 This definition reveals some of the benefits of mediation as compared to adjudicatory dispute resolution mechanisms such as litigation and arbitration.
(1) Neither parties would lose out as settlement agreements are reached voluntarily
3.2.6 First, as settlement agreements are reached voluntarily, unlike arbitration or litigation, parties do not run the risk of having a judge or an arbitrator deciding against them and losing their case.
3.2.7 Settlement agreements are also binding by virtue of the law of contract.
(2) Mediation saves time and costs
3.2.8 Second, as an informal and flexible process, mediation saves time and costs, being much faster than adjudicatory processes.
(3) Mediation encourages improvement of party relations
3.2.9 Third, unlike adversarial proceedings, it can lead to an improvement of party relations by overcoming or reducing communication problems.
(4) Mediation preserves privacy and is thus highly beneficial for businesses
3.2.10 Fourth, mediation is a process for parties who value their privacy. SMC, SIMC, its mediators and the parties are prohibited by contract from disclosing any information relating to the mediation.
3.2.11 Mediation is thus highly beneficial for businesses as the mediation process is confidential and as such is more likely to preserve the commercial goodwill of the parties and avoid long-term damage that often results from proceedings in court.
SECTION 3 MEDIATION IN SINGAPORE
A. Brief history of mediation in Singapore
3.3.1 Mediation is not a new concept to Singapore. Many Asian cultures practised mediation in one form or another in their communities, often by using respected elders as mediators. However, urbanisation and industrialisation and a focus on legal rights has led to an emphasis on litigation and dwindling of mediation and other informal dispute resolution mechanisms.
3.3.2 Mediation and other alternative dispute resolution practices were re-introduced into Singapore in the 1990s as the 1970s Western mediation movement spilled over to Singapore. It is these practices that determine Singapore’s mediation culture today.
B. The mediation movement in Singapore is largely institutionalised
3.3.3 There are two main categories of mediation practice in Singapore; court-based mediation and private mediation.
(1) Court-based mediation
3.3.4 Court-based mediation is mediation that takes place in the courts after parties have commenced legal proceedings. This type of mediation is mainly carried out by the State Courts (for civil disputes and minor criminal offences) and the Family Justice Courts. The former type of mediation is conducted by the Primary Dispute Resolution Centre (PDRC), which will soon be converted to the State Courts Centre for Dispute Resolution (in March 2015). Family Justice Courts’ mediation is currently conducted by the Family Resolution Chambers (FRC) and the Child Focused Resolution Centre (CFRC).
(2) Private mediation
3.3.5 Private mediation in Singapore is spearheaded and mainly carried out by the Singapore Mediation Centre (SMC), and the Singapore International Mediation Centre (SIMC).
(3) Other forms of mediation
3.3.6 A third prong of mediation practice, takes place in government agencies and industry-based bodies such as the Community Mediation Centres, Tribunal for the Maintenance of Parents and the Consumers’ Association of Singapore.
C. Mediation has received much support from Singapore’s judiciary
(1) The judiciary initiated the usage of pre-trial conferences which were subsequently formalised in 1996
3.3.7 The resurrection of mediation in Singapore depended to a large extent on the support of Singapore’s judiciary, in particular, the Honourable Chief Justice Yong Pung How.
3.3.8 The judiciary initiated Pre-Trial Conferences (PTCs) for civil cases in the Supreme and State Courts as early as January 1992. These PTCs, led by a registrar, served to evaluate the case for an optimal and efficient handling and encouraged the parties to settle their dispute via negotiation on a ‘without prejudice’ basis.
3.3.9 The use of PTCs was formalised in 1996 in the High Court and State Courts through O34A of the Rules of Court of Singapore. This order empowers the court to order the parties to attend confidential PTCs or to make other orders or directions as it regards appropriate for the just, expeditious and economical disposal of the dispute at any time after the beginning of proceedings.
(2) The judiciary introduced mediation in the courts with the launch of court-based mediation in 1994
3.3.10 The judiciary led the way in institutionalising mediation through the introduction of mediation in the State Courts in 1994.
3.3.11 The main objective was to reintroduce into Singapore culture a process to which it was not a stranger and to preserve family and societal harmony and cohesion. Other reasons included increasing productivity by reducing the costs of conflict and making more efficient use of public resources for conflict resolution.
3.3.12 In 2010, the State Courts encouraged the use of mediation by introducing the ADR Form at the Summons for Directions stage for civil disputes. Both lawyers and clients had to certify in this form that they had discussed ADR options, and had to indicate in the forms their decision concerning the use of ADR. In 2012, a “presumption of ADR” was introduced, in which all civil cases were automatically referred to mediation or other forms of ADR unless one or more party opted out. Refusal to use ADR for reasons deemed unsatisfactory by the registrar would result in cost sanctions under Order 59 rule 5 of the Rules of Court. Similar steps have been taken within the High Court in 2013, when the Practice Directions were amended in 2013 to allow a party wishing to attempt mediation to serve an “ADR offer”. The High Court highlighted that it would take into account the ADR offer and the response to the offer in deciding on appropriate costs orders under O 59 r 5 of the Rules of Court.
D. The Singapore government has been actively promoting mediation
3.3.13 The Singapore government has also adopted an active role in promoting mediation in Singapore and in encouraging parties to try mediation before resorting to litigation.
(1) A study was carried out in 1996 to see how the scope of mediation in Singapore may be expanded
3.3.14 In May 1996, a cross-profession Committee in ADR was formed to study how mediation could further be promoted in Singapore and to implement mediation beyond the courts. The Committee made two main recommendations, dividing the private mediation movement into commercial and community mediation.
(2) The recommendations made through the study were readily implemented
a. Creation of a commercial mediation centre in 1997
3.3.15 First, the committee recommended the creation of a commercial mediation centre under the Singapore Academy of Law. This centre, SMC, was launched on 16 August 1997.
b. Establishment of Community Mediation Centres in 1998
3.3.16 Second, it recommended the establishment of a network of easily accessible Community Mediation Centres to foster social cohesion. In order to achieve this, community leaders and volunteers were to be trained to be mediators. This was to teach communities how to resolve their own disputes.
3.3.17 This recommendation was implemented by the Ministry of Law. A Resource Panel on ADR was formed to oversee the development of a national ADR infrastructure. The Community Mediation Centres Act (Cap 49A) came into force in January 1998 and, shortly after, Singapore’s first Community Mediation Centre was officially opened in November 1998. The Ministry of Law supervises the CMCs and remains an active promoter of mediation and ADR.
(3) Other initiatives put in place to promote mediation
3.3.18 Other initiatives to promote mediation as the primary tool of dispute resolution include the recommendation by the Attorney General’s Chambers that all government departments should use mediation as their first option for dispute resolution and to include a mediation clause for referrals of disputes to SMC in government contracts.
(4) Developing Singapore as an international mediation centre
3.3.19 In 2013, the CJ and the Ministry of Law appointed a Working Group to look into developing Singapore as the centre of international commercial mediation. The key recommendations were: (1) the formation of the Singapore International Mediation Centre; (2) the formation of the Singapore International Mediation Institute; (3) the enactment of a Mediation Act; (4) extension of tax exemptions and incentives to mediation; (5) enhancing rules and court processes; and (6) reaching out to target markets and key industries.
SECTION 4 SINGAPORE MEDIATION CENTRE, SINGAPORE INTERNATIONAL MEDIATION CENTRE (SIMC) AND SINGAPORE INTERNATIONAL MEDIATION INSTITUTE (SIMI)
A. History of SMC
3.4.1 SMC was incorporated on 8 August 1997, and officially launched by the Honourable Chief Justice Yong Pung How on 16 August 1997. SMC is a non-profit organisation guaranteed by the Singapore Academy of Law. It is linked institutionally with many professional and trade associations and receives the support of the judiciary and the Singapore Academy of Law.
B. Roles and functions of SMC
3.4.2 SMC has successfully spearheaded the mediation movement in Singapore and is dedicated to the promotion of amicable and efficient settlement of disputes.
C. Statistics on mediation cases referred to SMC
3.4.3 As at 30 September 2014, more than 25000 disputes were referred to SMC. About 75% of the cases that are mediated at SMC are successfully settled. Of those successfully resolved, more than 90% were settled within one working day and of the disputants who participated in the mediations and provided feedback, 83% reported cost savings, 87% reported time savings and 94% would recommend the process to other persons in the same situation. Very often, parties save substantial legal, court and hearing fees when agreements are reached by mediation.
3.4.4 Almost all types of civil cases are mediated at SMC. SMC has handled cases where the disputed amount is in excess of S$200 million. To-date, the total quantum of disputes handled at SMC is in excess of S$3.2 billion. About 40% of SMC cases are referred by the courts.
D. Mediators in SMC
(1) SMC maintains a panel of Principal Mediators that have undergone formal mediation training
3.4.5 SMC maintains its own panel of trained and experienced Principal Mediators comprised of distinguished members of different professions and fields. They include Members of Parliament, former High Court Judges, Senior Counsel, architects, doctors, engineers, IT specialists, project managers, psychologists and university professors.
3.4.6 All SMC Principal Mediators have undergone formal mediation training and a strict evaluation before being appointed to the panel.
(2) SMC maintains an international panel consisting of internationally renowned neutrals
3.4.7 There is also an international panel consisting of internationally renowned neutrals. If disputes require technical expert knowledge, SMC usually appoints two mediators to the case to co-mediate the dispute. One of these mediators will be a professional of the industry concerned who is familiar with the subject matter of the dispute. The other mediator is generally a lawyer who will be familiar with the legal issues.
(3) Mediators are able to handle cases in languages other than English, such as Tamil, Malay, Mandarin and other Chinese dialects
3.4.8 SMC will also try to match the language abilities of the mediators to the disputants to facilitate the free flow of conversation between the parties and to avoid the mediation of cases through translators who may hinder the building of rapport between mediator(s) and parties. So far, besides English, cases have been successfully mediated in Mandarin and other Chinese dialects as well as Tamil and Malay.
(4) Mediators are bound by SMC’s Code of Conduct
3.4.9 Mediations under SMC’s auspices are governed by the provisions in the SMC Mediation Procedure. Clause 4 of this Procedure states that a mediator has to subscribe to SMC’s Code of Conduct. These provisions are binding upon all mediators appointed by SMC to mediate. They direct and guide the mediator through the mediation process with regard to issues such as confidentiality, neutrality and impartiality.
E. Mediation processes at SMC
(1) The mediation process may be initiated by a reference by the courts or upon request of one or more parties
3.4.10 The mediation process at SMC may be initiated in two ways; either the case may be referred to SMC by the courts or one or more of the parties may contact SMC directly with a request for mediation. If only one party makes a request, SMC will contact all the other parties and seek to convince them to attempt mediation.
3.4.11 After SMC has assessed the suitability of the case for mediation and if all parties agree to mediate, SMC may brief the parties on what mediation at SMC entails. This is to ensure that the parties make an informed decision and are committed towards finding a suitable solution to their dispute via mediation.
(2) SMC’s Agreement to Mediate must be signed by the parties
3.4.12 The first step for mediation at SMC is the signing of SMC’s Agreement to Mediate. By this Agreement, the parties are bound by the terms of SMC’s Mediation Procedure which requires them to give effect to the terms of any settlement reached.
(3) SMC will set a date and time for mediation
3.4.13 Then, SMC will designate a date and time for the mediation process (usually one week after initiation, or, on an urgent basis, within 24 hours). Mediation sessions are held at SMC’s premises to ensure neutrality.
(4) SMC will appoint suitable mediators
3.4.14 Also, SMC will appoint suitable mediators from its Panel of Principal Mediators. A party may reject the proposed mediator if it has valid reasons, such as conflict of interests. Meanwhile, the parties exchange concise summaries of their positions in the case and, if necessary, of important documents referred to in the summary.
(5) A brief description of the mediation process
3.4.15 On the day of the mediation, the mediator will lead and guide the parties through a problem-solving process. The lawyers of the parties play an important role in assisting the mediator and advising the parties during the settlement process. If the matter is settled, the parties will reduce in writing the terms of their settlement with the assistance of their lawyers and this settlement agreement will be signed by or on behalf of the parties.
SECTION 5 COURT-BASED MEDIATION IN THE STATE COURTS
A. History of Court-based Mediation
3.5.1 Court-based mediation was first introduced as a pilot project in 1994, when specially selected District Judges mediated a range of civil disputes. The Court Mediation Centre was established in 1995 following the pilot project. It was renamed the Primary Dispute Resolution Centre in May 1998. In addition, the multi-door courthouse was established within the Primary Dispute Resolution Centre (PDRC) in 1999. Its purpose was to assist and direct disputants in finding the appropriate dispute resolution mechanism within or outside the court system. Also, it seeks to increase public awareness of dispute resolution processes.
3.5.2 Court-based mediation was gradually extended to other disputes within the Courts. Mediation was introduced for minor criminal offences around 1996. Magistrate’s complaints that involved interpersonal relationships, such as disputes between neighbours, were referred for mediation. Since then, mediation for these minor offences have been institutionalised within the State Courts.
3.5.3 Mediation has similarly played a prominent role in family justice. Court-based mediation and counseling were introduced in the Family Justice Courts after the Family Court was established in 1995. The Family Resolutions Chambers were established in 2006 to consolidate the Family Justice Courts’ mediation programmes. In addition, the Child Focused Resolution Centre was set up in 2011 to carry out the legislative mandate of requiring divorcing parties with at least one minor child to undergo counseling and mediation. [I suggest adding a footnote here: For more information, refer to Joyce Low and Dorcas Quek, “An Overview of Court Mediation in the State Courts of Singapore”, in Mediation in Singapore: A Practical Guide (Sweet and Maxwell, 2015) at paras [9.003] to [9.011]. Or this chapter could be referred to at the end of the chapter]
B. Roles and functions of court-based mediation
3.5.4 Court-based mediation refers to mediation which is held in court once legal proceedings have commenced. With the introduction of the presumption of ADR in 2012, the vast majority of cases in the State Courts undergo CDR.
3.5.5 The current Courts Model of Mediation has been described as containing the following elements: (a) a facilitative approach in assisting the parties’ negotiations; (b) an emphasis on joint problem-solving between mediator, parties and lawyers; (c) the mediation usually involves discussion on legal merit of the case. The last feature is especially prominent, since court-based mediation takes place in the context of pending legal proceedings, and mediation is conducted in the shadow of the law. This usually takes place during the more advanced stage of mediation, and in private sessions when the mediator can conduct reality-testing together with the lawyer and client. [Again I suggest adding a footnote - For more information, refer to Joyce Low and Dorcas Quek, “An Overview of Court Mediation in the State Courts of Singapore”, in Mediation in Singapore: A Practical Guide (Sweet and Maxwell, 2015) at paras [9.054] to [9.085].
C. Statistics on mediation cases that have undergone CDR
3.5.6 Initially, mediation was only applicable to civil cases. Today, however, a wide range of cases are mediated including assessment of damages, disputes over costs of civil proceedings, maintenance applications, applications by spouses for personal protection orders, complaints to magistrates of offences involving neighbourhood and relational disputes and small claims.
3.5.7 Court-based mediation has had an enormous impact on the Singapore judicial system. Between 2011 and 2013, more than 22,000 matters have undergone CDR. Of these, 85% were successfully settled. In surveys conducted by the State Courts in 2013, 94.5% agreed that mediation services provided by the courts at PDRC have contributed to early settlement of cases and 94.9% agreed that there were cost savings for litigants.
D. Mediators in Court-based Mediation
(1) Judges were appointed due to high regard for persons in positions of authority in the Asian culture
3.5.8 Adapting Western Style mediation to the Asian/ Singaporean culture, the Singapore Court Mediation Model was introduced by the Honourable Chief Justice Yong Pung How in 1997. In Asian culture, there is a tendency to have high regard for persons in positions of authority. In this connection, retired Chief Justice Chan Sek Keong in Jonathan Lock v Jesseline Goh  2 SLR(R) 455 observed how “[f]eedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command… as well as the convenience to the parties of being able to directly enforce a court-mediated settlement by means of a court order”. The Honourable Chief Justice Chan highlighted how our model of court mediation is “sui generis, and is particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits of the claim and defence respectively”.
3.5.9 Judges have played a central role as mediators since court-based mediation was introduced in the 1990s. It has been commented, in this regard, that “[w]hile judicial mediation is less formal compared to a trial, the resultant ceremony of coming to court, attending before a judge and having an opportunity to present one’s case and views to the judge, are an important part of the process of case resolution at the courts”. Currently, court mediation is provided by a larger and diverse base of mediators including professional staff and volunteers from SMC. [Footnote: Joyce Low and Dorcas Quek, “An Overview of Court Mediation in the State Courts of Singapore”, in Mediation in Singapore: A Practical Guide (Sweet and Maxwell, 2015) at paras [9.031] to [9.040]].,
(2) Mediators are required to adhere to guidelines provided by the Courts and comply with the Courts’ Code of Ethics
3.5.10 Mediators are guided by the Code of Ethics and Basic Principles for Court Mediators, the State Courts’ Justice Statement and the Courts’ Guide on Best Practice for Mediation. These documents articulate the shared values that shape how mediations are conducted, and deal with fairness, accessibility, independence, , impartiality, integrity and responsiveness. The State Courts also have an internal Guide on Best Practices for Court Mediation, which sets out recommended practices for each stage of mediation. All court mediators (Judges, staff and volunteers) are required to comply with these guidelines.
E. Other court-based mediations: Family Justice Courts, Small Claims Tribunal and Magistrates' Complaints
(1) Mediation in the Family Justice Courts
a. A process by which family-related disputes may be resolved
3.5.13 Mediation is intended to be the process by which most family related disputes could be resolved.
3.5.14 The Court provides in-house mediation and counselling services free of charge. This practice was legally entrenched in August 1996 with the passing of the Women’s Charter (Amendment) Act where Section 50(1) provides for the court to refer the parties with their consent to mediation. From 2011 onwards, mediation and counselling are mandatory for divorcing couples with at least one minor child (ss 50(3A) to 50(3E) of the Women’s Charter). Mediation is currently provided by the Family Resolutions Chambers and Child Focused Resolution Centre in the Family Justice Courts.
b. Mediators usually have a legal, social work, psychology or family therapy background
3.5.15 The mediations are conducted by District Judges at the Family Court, court staff or volunteer mediators.
c. Mediations take place on a ‘without prejudice’ basis
3.5.16 The mediations take place on a ‘without prejudice’ basis and no matters disclosed during the sessions are admissible in court. Lawyers and parties are to be prepared to discuss their cases during the mediation and have all necessary documents ready. A similar provision exists for Muslim parties or parties married under Muslim Law who seek mediation or counselling for their family dispute.
(2) Mediation at the Small Claims Tribunals
3.5.17 The Small Claims Tribunals were established in 1985 with the passing of the Small Claims Tribunals Act. It handles disputes relating to contracts for the sale of goods or services or damage caused to property by torts not exceeding S$10,000 in value. Damages stemming from the use of motor vehicles are excluded from the provision.
3.5.18 Upon request the Tribunals also deal with disputes not exceeding S$20,000 if the parties submit a written request. Proceedings before the tribunals are conducted in a private setting and in an informal manner with several attempts to settle the dispute amicably before a referee hears the evidence and submissions of the parties and decides the case based on its merits.
(3) Magistrates’ complaints may be mediated by a judge, a court volunteer mediator or at the Community Mediation Centre
3.5.19 Under section 151 of the Criminal Procedure Code (Cap.68) a Magistrate can be informed of a criminal offence through a complaint. These complaints generally concern minor criminal offences and may be mediated by the magistrate himself or a court mediator.
3.5.20 Further, subject to the consent of the parties, Magistrates' Complaints concerning interpersonal relationships may also be referred for mediation at the Community Mediation Centre. If no settlement is reached and the complainant wants to proceed to trial, a summons may be issued against the alleged offender.
SECTION 6 LEGAL ISSUES IN MEDIATION
A. Status of settlement agreements arising from mediation
3.6.1 The legal status of settlement agreements will depend on the intention of the parties, the context of the mediation and the existence and nature of relevant statutory requirements.
(1) Private mediations
3.6.2 In most private mediations, parties would usually reduce the terms of the agreement in writing and sign on the document. It would be a legally binding agreement. As such, the enforceability of such settlement agreements is subject to normal contractual principles.
(2) Where there are pending court proceedings
3.6.3 I Where there are pending court proceedings, the settlement agreement may provide for its terms to be recorded as a consent judgment or court order. It is also possible for parties to agree to have the terms of the settlement subsequently recorded as a consent arbitral award.
B. The role of confidentiality in mediation
3.6.4 Mediation is often said to be a private and confidential process. As a matter of law, practice and policy, confidentiality in mediation is not a straightforward matter. In order to determine the scope of confidentiality, the law in relation to common law privileges, contractual principles, equitable doctrines and statutory regulations have to be examined.
(1) The two levels of confidentiality in mediation
3.6.5 The first is in relation to the process itself and the second is in relation to private meetings between the mediator and one of the parties during the process. The former is confidential in the sense that, apart from the mediator and the parties, no third party is to be privy to the proceedings. The latter refers to confidentiality in that no matter raised in private sessions should be disclosed to the other party by the mediator.
(2) Confidentiality at common law
a. Statements made on a ‘without prejudice’ basis are inadmissible
3.6.6 Generally, at common law, statements made on a ‘without prejudice’ basis during negotiations towards settlement of a dispute are inadmissible in subsequent court proceedings relating to the same subject matter. As such, the ‘without prejudice’ privilege is usually applicable in most mediations. However, the privilege is not absolute and in certain cases, ‘without prejudice’ matters may be raised where justice requires or circumstances exist giving rise to the non-applicability or waiver of the privilege.
b. A situation where there is a dispute between parties and mediator
3.6.7 At present, it would seem that the ‘without prejudice’ privilege only applies to the parties in mediation and not the mediator or the process. This poses a potential problem where there is a dispute between parties and mediator. In order to avoid these potential problems, most agreements to mediate contain a confidentiality clause which provides that the parties and the mediator are not to disclose to persons outside the mediation any information or document used in the mediation. These provisions have not yet been tested in the Singapore courts. Whilst such provisions afford a broader scope of confidentiality over the process and the parties, it is likely that some of the limitations on privileges under the law would also be imposed on such confidentiality clauses.
(3) Confidentiality in equity
3.6.8 In equity, persons who receive information in circumstances of confidence cannot make unauthorised use of the information. A court may grant relief if there has been actual abuse or threatened abuse of confidential information.
a. In Singapore, there are three elements which must be fulfilled for there to be a breach of confidence
3.6.9 In X Pte Ltd & Anor v. CDE  2 SLR(R) 575 996, the court cited with approval Coco v. AN Clarke (Engineers) Ltd  RPC 41 giving the elements of breach of confidential information as follows: (1) the information to be protected must have the necessary quality of confidence about it; (2) that information must have been imparted in circumstances importing an obligation of confidence; and (3) there must be an unauthorised use of the information to the detriment of the party who originally communicated it.
b. Mediators may be in breach of confidence if there has been unauthorised use of information without authorisation
3.6.10 Breach of confidentiality may apply in mediation where there has been disclosure of information which had been disclosed to mediators only for the purpose of the mediators performing their function as such. Mediators may be in breach of confidence where there has been unauthorised use of the information or disclosure to third parties without authorisation. In some situations confidential information disclosed in mediation may be commercially sensitive and mediators who use such information for their own benefit may be ordered to make restitution to the injured parties.
c. Certain privilege and secrecy statutory provisions exist to protect confidentiality of mediation
3.6.11 A number of statutory provisions exist to protect confidentiality of mediation through privilege and secrecy provisions. These provisions reinforce the common law position and in some cases extend the coverage. In Singapore, some examples of such protection would be sections 19 and 20 of the Community Mediation Centres Act (Cap 49A), sections 49(5) and 50(4) of the Women’s Charter (Cap 353) and section 23 of the Evidence Act (Cap.97), which are potentially applicable to communications made during a mediation session.
C. Mediation clauses
(1) Mediation clauses may be incorporated in contracts
3.6.12 Mediation clauses have been incorporated in some contracts. Such clauses are drafted to trigger the mediation process in the event that there is a breach of the contract or to require the parties to resolve potential differences through mediation before resorting to litigation.
3.6.13 A typical clause which is recommended by SMC would be worded as such:
“All disputes, controversies or differences arising out of or in connection with this agreement shall first be submitted to the Singapore Mediation Centre for resolution by mediation in accordance with the Mediation Procedure for the time being in force. The parties agree to participate in the mediation in good faith and undertake to abide by the terms of any settlement reached”.
(2) Enforceability of mediation clauses
D. Things to take note of while drafting mediation clauses
3.6.16 In Singapore, the Attorney General’s Chambers recommends that government contracts should carry a clause referring disputes to mediation, where appropriate.
3.6.17 Drafters of mediation clauses should be attentive to the following factors: (1) mediation clauses should be clear and certain; (2) they should be complete and comprehensive; (3) they should specify procedures to be followed by the parties in setting up and undertaking the mediation with some reference to the identity of the mediator and procedure to be followed or incorporated by reference to the mediation agreement or mediation rules of an agency providing mediation services; and (4) they should uphold the non-ouster principle by stipulating that the parties should first submit their dispute to mediation before they institute court proceedings.
E. Remedies for breach of mediation clauses
3.6.18 Where there is a breach of a mediation clause, parties are possibly entitled to the following 3 remedies: (1) stay of proceedings; (2) specific performance; and/or (3) damages.
(1) Stay of proceedings
3.6.19 In respect of a stay of proceedings, the Singapore High Court has a statutory power to stay proceedings pending arbitration. There is no corresponding statutory power to stay proceedings pending mediation. However, the Singapore Court of Appeal in Star Trans Far East Pte Ltd v. Norske-Tech Ltd & Ors  2 SLR(R) 196 has affirmed that the Singapore courts retain a residual inherent jurisdiction to order a stay of court proceedings in favour of arbitration where such cases are not covered by statutory provisions.
3.6.20 The grounds for invoking this jurisdiction are that the ongoing proceedings are frivolous, vexatious, oppressive or an abuse of the process of the court. In view of the foregoing, a similar inherent jurisdiction may exist to enable a defendant to apply to court to stay proceedings pending mediation where a plaintiff commences legal proceedings without first complying with an enforceable mediation clause.
(2) Specific performance
3.6.21 Specific performance is a remedy for breach of contract in which the court orders a contracting party to carry out obligations under the contract. Such a remedy is equitable and ordered at the discretion of the court. Although the possibility of granting specific performance has not yet been considered by the courts in Singapore, it remains a possible remedy given the difficulties in awarding damages for breach of such clauses. However, several problems may arise; for example, it would be difficult for the court to supervise the performance thereof.
3.6.22 Damages are designed to put plaintiffs in a position they would have been if the defendants had carried out their contractual obligations. As for damages as a possible remedy for breach of a mediation clause, a major difficulty would be to assess the quantum of damages suffered. In mediation, it would not be possible to determine the terms or the outcome of the mediation had the mediation clause been complied with.
SECTION 7 FUTURE DEVELOPMENTS AND CHALLENGES
3.7.1 The Mediation movement in Singapore has come a long way since the early 1990s. The government managed to revive mediation as an autonomous dispute resolution mechanism and, today, Singapore is one of the leading nations in the effective use of ADR in early stages of the judicial process with a high settlement rate. Also the private mediation movement has expanded largely since its inception in the mid-nineties. SMC remains at the forefront of the mediation movement in Singapore and Asia having been invited to train mediators in countries like the Philippines and as far as Malta and Austria.
3.7.2 However, much remains to be done. Mediation needs to be further promoted and ingrained within Singapore society to become the primary tool of dispute resolution.
1. Laurence Boulle, Teh Hwee Hwee, Mediation: Principles, Process, Practice (Singapore Edition), 2000
2. Lim Lan Yuan & Liew Thiam Leng, Court Mediation in Singapore, 1997
3. Judge Liew Thiam Leng, Alternative Dispute Resolution in Singapore
4. Keynote Address of the Honourable Chief Justice Yong Pung How at the International Mediation Conference on 18 August 1997, Singapore International Convention and Exhibition Center, Singapore.
5. Singapore Mediation Centre webpage
6. Marvin Bay, Shoba Nair, Asanthi Mendi, The Integration of Alternative Dispute Resolution Within the Adjudication Process : A Comparative Study of the Singapore Experience (2004), 16 SacLJ 501
7. J Lee, The Enforceability of Mediation Clauses in Singapore, (1999) SJLS 229
Updated as at 30 April 2015
By: Loong Seng Onn
Singapore Mediation Centre