Events & Speeches

Justice Goh Joon Seng's speech at the 6th LEADR International Conference, Christchurch, New Zealand "Client Needs In the New Millennium - A Singapore Perspective"

Mr Chairman, Ladies and Gentlemen

Good Morning

When the subject of establishing a mediation centre in Singapore was first mooted in January 1996 and a committee under my chairmanship was formed to look into the proposal, LEADR was one of the institutions we looked to as a model for our proposed mediation centre. I am therefore honoured to be given this opportunity to share with you our vision on how mediation will evolve in Singapore in response to the changing needs of our society in the years ahead.

Let me begin with a brief overview of how mediation, as a dispute resolution mechanism, has developed in Singapore. Amicable resolution of dispute has long been part and parcel of the Asian culture. The long term benefits of maintaining social harmony through the exercise of reason and compassion were considered to be of greater value than the short term objectives of a rigid adherence to perceived legal rights and entitlements. More often than not, the parties in dispute would attempt to reach a settlement through negotiation. Such settlements were usually arrived at through the informal mediation of a village chief or a clan elder. The courts were regarded as an avenue of last resort. This attitude finds expression in a Chinese proverb which translated says "In death, avoid hell. In life, avoid the law courts".

With material progress and the dispersal of traditional communities because of urbanisation, litigation became more and more the norm for resolution of disputes.

It was against such a backdrop that court-based mediation was introduced in Singapore in the High Court and Subordinate Courts in the early 1990s. At pre-trial conferences and settlement conferences, parties to actions pending in the courts were encouraged to identify the issues, consider them objectively and reassess their respective positions with a view to resolving their disputes amicably. The discussions at such conferences would be conducted on a "without prejudice" basis before a registrar in the case of the High Court, and a judge or registrar in the case of the Subordinate Courts. The judge or registrar would serve as a facilitator. He might, at the request of the parties, give a tentative evaluation of the merits and suggest how the dispute might be resolved. If there was no settlement, the action would then be heard before a different forum. The objectives of this exercise were to promote early resolution of disputes and to minimise costs of litigation. Court-based mediation achieved a fair degree of success in facilitating settlement of court actions.

Initially, court-based mediation was applied to civil disputes only. It has since been extended to family court cases and some minor quasi-criminal cases involving relational disputes. But there will always be limits to what court-based mediation can accomplish. It is confined to actions pending in the courts. It is done as part or in the course of case management. However, the high caseload puts time constraint on court-based mediation. Therefore the potential of the mediation process for creating all possible options for a settlement cannot be fully realised. This led to the proposal for the setting up of the Singapore Mediation Centre or SMC.

The SMC began as the Commercial Mediation Service under the Singapore Academy of Law. After a successful pilot project launched in December 1996, the Commercial Mediation Service was corporatised as the SMC in August 1997.

The SMC offers to disputants, in particular those contemplating but have not commenced litigation, mediation professionally conducted as a viable alternative to litigation. Disputants who have already commenced proceedings in court or in arbitration are also encouraged to attempt mediation, to settle their differences privately and amicably and to work together to develop pragmatic solutions which satisfy all parties.

The SMC has the full support of the courts in Singapore because the judiciary is all for mediation as a mechanism for alternative dispute resolution or ADR. The courts have treated the role of the SMC as complementary to theirs. The parties to court proceedings identified by the registrars as suitable for mediation are encouraged to refer their disputes to the SMC. An incentive is also provided. Parties who have attempted in good faith mediation at the SMC, if it is not successful, will be given a waiver or refund of hearing fees by the courts. (See Registrars' circulars annexed.)

The SMC advocates the use of interest-based mediation in finding solutions to conflicts. This often results in the generation of a range of practical options, some of which may not be available in our adjudicating process. For example, in one case mediated at the SMC the parties in a dispute involving a few hundred thousand dollars came to a deadlock towards the end of the mediation all because of $10,000. Neither side would give in to the other. Eventually, they agreed to donate the $10,000 to a charity in their joint names. They were both relieved to put the matter behind them and complimented each other in finding, with the help of the mediator, such a face saving solution in the end.

The facilitative approach adopted by the SMC has proved successful. The number of cases referred demonstrates the level of acceptance of mediation as a method of dispute resolution. As at 20 September 1998, 297 cases have been referred to the SMC for mediation, including those referred to the Commercial Mediation Service. The settlement rate ranges from 75% to 85%. This has resulted in substantial savings in terms of legal fees and other resources that would otherwise have to be deployed for the adjudication of these disputes. What is particularly significant is that amicable relationships are re-established and goodwill restored.

However, we know we cannot afford to be complacent but must always seek, anticipate, and provide what the users or potential users of our services want and expect of us.

The volume of litigation in Singapore has been increasing in recent years. The rise could be contributed by two factors. Firstly, the increasing awareness of Singaporeans of their legal rights; and secondly, erosion of their traditional values in favour of consultation and the consequent shift towards an adversarial setting. The challenge confronting the SMC is how to ensure that mediation continues to be relevant in this changing environment.

We do not think that there is a specific form of mediation that is appropriate for all circumstances. Ultimately the type of mediation approach to be adopted in each case must depend on the personality of the disputants and the type of dispute. One of the strengths of mediation is that it is fluid and can be modified to suit the needs of the parties and the circumstances of each case.

Expert knowledge of the subject matter of a dispute may not be essential for effective mediation. But Singapore is largely an Asian city state. Its people have a traditional deference to authority and respect for knowledge. In this cultural setting, the mediator is the authority figure and knowledge of the subject matter would enhance his stature. The disputants therefore look to him for guidance and an indication as to how they should resolve their differences. To fulfil this role, it would be useful for the mediator in a dispute of a technical nature to have some expertise in that particular field. Indeed, the majority of disputants expressed a preference for mediators trained in the relevant discipline. They said they would be more comfortable presenting their case to someone who could quickly understand their problems and their concerns. Hence, we have trained and accredited to our panel, professionals from various disciplines, including those relevant to the building industry. This is because about 30% of cases mediated by the SMC are building construction related.

The purist who views mediation as mere facilitation of a settlement by a truly neutral third party, who offers no views whatsoever about the dispute or its outcome may cringe at what could be regarded as an evaluative approach. At the SMC, our mediators do not prod the disputants into settlement by evaluation of the strengths and weaknesses of the cases before them. But we subscribe to the view that the question is not simply whether a mediator should evaluate or not. That may be too simplistic a question, since all mediators do make their own assessment, in some form or another, based on the information presented. Whether you like it or not, they are involved in some degree of evaluation. Such evaluation will influence how the issues, questions and suggestions emanating from the mediator are framed. More often than not, those views are expressed to the disputants indirectly through a series of searching questions, whether we call it reality testing, or getting the parties to consider their BATNA, WATNA, or MLATNA.

The challenge for the SMC is to develop a protocol for managing such inevitable internal assessments by our mediators so that they can contribute to rather than hinder or undermine, the integrity of the mediation process. Such assessments, if not carefully managed, may result in user dissatisfaction with the mediation process. The mediators' impartiality is also likely to be questioned. An example of what we wish to avoid can be found in the mediation between the union of South Korea's motor company, Hyundai and the management of Hyundai in August this year. The dispute related to layoffs of Hyundai employees. Mediation efforts were led by the ruling National Congress for New Politics. The effort was however reported to have left a deep fissure between the ruling camp and labour unions on one side and Hyundai and employers on the other. The mediators had proposed that Hyundai drop damage and violence lawsuits it had filed against some unionists. In response to that, Hyundai executives accused the mediators of "killing the company only for the union". It was reported that one executive shouted, "If it was you who were beaten by workers and had ribs and a leg broken, could you drop lawsuits against them?" To that, a mediator replied, "I wouldn't mind even if my ribs were broken." The mediator then went on to protest and asked if the company had any respect for hierarchy and authority. Needless to say, no peaceful solution was arrived at in that case. We believe that we will in due course arrive at a balance in our approach fine tuned through the feedback process and dialogue sessions organised for our mediators. In short, we see the way ahead is to create a balanced blend of "leadership and interest based" model of mediation for Singapore.

I now turn to another feature of Asian culture which mediators at the SMC are advised to take note. That is the emphasis on "face". No one wishes to suffer loss of face. Hence, the mediators must try to facilitate communication between the parties and steer them away from issues which will lead to direct confrontation and from which they will subsequently be reluctant to back down so as to avoid humiliation. The mediators must therefore seek to insulate the parties from direct confrontation. If we are sensitive to this cultural feature, it could be harnessed to promote mediation because mediation is more likely to bring about a win-win solution than adjudication.

Mediation will play a greater role as more Singapore businesses go regional and global. Regionalisation and globalisation will give rise to cross border trade or commercial disputes. Further, with the return of Hong Kong to Chinese sovereignty, Singapore is likely to be increasingly chosen as the neutral venue for the resolution of disputes between multinational corporations doing business in or with China. All such disputes usually involve parties operating under different laws or different systems of law. As a result, the disputants may have different perceptions of their legal rights and entitlements. This makes mediation, with its emphasis on interests rather than strict legal rights, particularly suitable as a mechanism for resolution of such disputes.

We therefore intend to establish an International Panel of Mediators in the near future to provide our clients with a wider choice of mediators and to give them the benefit of foreign expertise in

mediation, especially in cross border trade and commercial disputes. That will be our first step to regionalise the operations of the SMC.

Singapore is a small island. We have no natural resources except our strategic location, and a hardworking educated work force. Our future economic drive is going to be more and more knowledge based. Information technology or IT will therefore be our engine of growth. SMC can be part of the infrastructure in support of Singapore as a regional IT hub by providing facilities for resolution of IT disputes. In preparation for this role, the SMC has established links with the Singapore Information Technology Dispute Resolution Advisory Committee or SITDRAC comprising members from the IT industry. SITDRAC is undertaking a study and will advise how the SMC can best handle IT disputes. In the meantime, SITDRAC has nominated several IT professionals to be trained and accredited to our panel of mediators. We will be ready for the next phase of Singapore's IT era.

The SMC is conscious that it should be alive to clients' needs and innovate where possible. In response to such needs the SMC now offers "neg-med" services, comprising the twin non-adversarial processes of negotiation and mediation. The SMC will organise a negotiation session for the parties to resolve their disputes by themselves. If that fails, the SMC will assign a mediator within 3 days to help them resolve their disputes. We understand that the SMC is the first mediation centre to provide this service. Disputants will find this service useful, as they are provided with a neutral venue in one of our mediation chambers with conducive environment for negotiations, backed up by secretarial support and mediation services, if necessary. The SMC intends to continue to create innovative processes and provide other new services.

Mediation will continue to remain relevant as a dispute resolution mechanism only if mediators accept that the mechanics of mediation are not static but will evolve with the times according to clients' expectations and requirements. This is what the SMC will keep in mind as it prepares to meet the clients' needs in the new millennium.

In conclusion, I am glad to say that I think the SMC has made great strides since its launch. The experience we have gained thus far has instilled in us confidence that we will be able to take on the challenges that will present themselves in the new millennium, in particular the following: firstly, the likely increase in cross border trade and commercial disputes involving foreign law and custom being referred to the SMC for mediation; secondly, IT disputes thrown up by our knowledge based economy in the coming years; and last but not least, the creation of a model of mediation and other ADR processes that will better meet the expectations of users of the SMC's services. Thank you.