Appropriate dispute resolution in our borderless new world
With the growth in economic partnerships such as the establishment of the ASEAN Economic Community and the signing of the Trans Pacific Partnership Agreement, we are witnessing an increasingly globalized and flattened world, with greater economic openness and mobility of labour and capital across borders. The growth in cross border trade will in turn inevitably be accompanied by an increase in transnational commercial disputes. Parties in such disputes may find themselves stranded in unfamiliar legal systems, relying on foreign legal counsel and faced with the uncertainty of enforceability of a foreign judgment.
In the keynote address delivered by the Chief Justice of Singapore at the Global Pound Conference* on 17 March 2016, in noting a shift in trend that access to justice by disputants is increasingly taking place beyond court-based approaches to resolve their disputes, his honour called for legal systems to offer a range of dispute resolution options, ideally one “that delivers justice that is customised to each type of case, keeping in mind the subject matter, the parties and the desired outcome”. In doing so, Chief Justice Menon said that it was timely that the commonly understood acronym “ADR” known as a reference to “Alternative Dispute Resolution” be embraced as a reference to “Appropriate Dispute Resolution”.
One of the means for accessing justice outside of litigation is mediation. In our borderless new world, mediation enables parties to cut across different legal jurisdictions to explore their issues and concerns, all of which need not be strictly legal. The neutral facilitator, called the mediator, guides parties through the issues and concerns in a private setting and allows parties to find their own mutually acceptable solutions. Mediation is also less costly and more time efficient than arbitration or litigation.
At the Global Pound Conference, mediation was also aptly described through a cactus analogy by Marcus Lim, Executive Director of the Singapore International Mediation Institute (SIMI):
“Mediation is like a cactus because the problems you face are thorny. But when you get past the thorns and resolve your problems, the cactus would bloom and you will see a flower on top. Mediation is like a cactus because it is able to survive in the harshest of environments, and just like how a cactus is able to find water in the desert for survival, mediation allows parties to dig deep down to find solutions that work.” (Marcus attributed the analogy to students who attended a mediation workshop supported by SIMI and SMC, called the "Peacemakers")
In seeking to resolve your commercial disputes, choose mediation as the appropriate dispute resolution process.
*The Pound Conference originated in 1976. It was named in honour of Professor Roscoe Pound, who some seventy years earlier, as the dean of the University of Nebraska College of Law, had spoken of the dissatisfaction with the courts and lack of respect for the law which existed in the United States at that time. The Pound Conference is credited with the emergence of modern dispute resolution systems that aimed to reduce reliance on conventional litigation.
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March 2016 Issue. For past issues, read more here.