Mediated Settlement Agreements Enforceable as Court Orders
The passing of the Mediation Bill comes at a time when mediation is doing very well, with SMC handling its highest number of matters since it was founded 20 years ago – 499 cases in 2016. It is hoped that this Bill will further promote domestic mediation and draw even more commercial mediation work to Singapore, strengthening Singapore’s position as an international dispute resolution centre.
There are four key features of the Bill. Most important for the commercial sector is that the Bill supports commercial mediation by strengthening the enforceability of mediated settlements. Previously, for matters not already in court, parties had to sue on the settlement agreement in order to enforce it. Now, once parties reach a settlement, they may agree to apply to court to have the written settlement agreement recorded as a court order. The settlement agreement is then immediately enforceable as an order of court. However, the mediation must be administered by a designated mediation service provider such as SMC, or conducted by a certified mediator under an approved certification scheme by an approved agency or organisation. These safeguards are to ensure that the quality of the mediated settlement agreement is appropriate for recording and enforcement as a court order.
Second, mediation communications, namely, anything said or done, documents prepared, or information provided in the course of or for the purpose of the mediation, including the agreement to mediate and the settlement agreement, are protected under the Bill. Mediation communications cannot be disclosed to any third party to the mediation unless they fall under certain exceptions (e.g. consent of the parties is given) and they cannot be admitted as evidence in any court, arbitral or disciplinary proceedings except with the leave of a court or arbitral tribunal.
Third, the Bill provides that any party to a mediation agreement may apply to court to stay legal proceedings on the same dispute. The court may make such orders as it thinks fit in order to preserve the rights of parties. Parties may thus mediate with the assurance that their legal position in court proceedings is preserved pending the outcome of the mediation.
Fourth, parties are free to use foreign mediators and counsel in mediation as restrictions on the practice of Singapore law in mediation are removed, provided the mediation is conducted by a certified mediator or administered by a designated mediation service provider.
The passing of the Mediation Bill, further strengthens and legitimises the position of mediation in the dispute resolution landscape.
For more information on mediation, please visit www.mediation.com.sg.
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February 2017 Issue. For past issues, read more here.