Mediation and Civil Disputes

This article was written by Daryl Er (an intern of OTP Law Corporation) and Emelia Kwa (a trainee at OTP Law Corporation).

We have previously covered what mediation entails in our Basic Guide to Mediation. Having covered many instances where mediation could have been helpful in family cases, we decided to turn the focus a bit onto how mediation can be helpful in civil litigation matters.

What do you mean by civil litigation?

These are usually cases that start by a writ of summons or originating summons.

Where does one go for mediation then?

In addition to private mediators, there are two places you can consider when considering mediation for your civil dispute:

1.      The State Courts Centre for Dispute Resolution (SCCDR)

2.      Singapore Mediation Centre (SMC)

The mediators at the SCCDR are State Court Judges who have been specially appointed and trained in mediation, as well as court volunteers who are trained and accredited by the State Courts and the SMC.

The SMC also offers mediation for civil disputes, and their mediator panel consists of experienced judges as well as lawyers.

Is the mediation process different from family mediation (i.e. the process in the Basic Guide?)

No. Just like for family disputes, mediation for civil disputes involve the mediator acting as a neutral third-party. The mediator then assists parties in reaching an agreement by considering the positions of the parties and offering solutions based on their interests.

The mediator (who does not need to be a lawyer) can provide information about the law or facilitate discussion in order to help parties find the best solution to issues, but cannot represent either party or provide legal advice.

Information and documents are disclosed voluntarily by respective parties, and upon analysis, each will propose possible solutions to the respective areas of dispute. Mediation is conducted without prejudice, meaning that whatever is said during the sessions cannot later be used as evidence in court. Any decisions or agreements made by the parties during mediation will be embodied in an agreement, which upon signing by both parties, is fully enforceable in court.

Parties can also engage legal counsel for advice and to check the drafted mediated agreement.

What kinds of civil disputes can be mediated?

While not an exhaustive list, the Supreme Court Practice Directions has given some clues on the types of disputes that would be ideal for resolution through mediation:

·        Commercial disputes where disputants have an ongoing relationship that needs to be preserved

·        Small value construction disputes where the costs and time involved in having the matter resolved through the courts is out of proportion to the sums at stake

·        Neighbourhood disputes over noise, boundaries, right of way or user

·        Professional partnership disputes over dissolution or the respective rights of outgoing and remaining partners

·        Actions by liquidators in which the available assets are limited and likely to be consumed by the costs of the liquidators and litigation

·        Clinical and medical negligence cases where the victim needs to be heard in an environment which is less formal than a court room and where the medical professional may more easily apologise and explain

·        Most employment cases, including all forms of discrimination, in which the complainant and the defendant can confront each other in an informal environment which is less inhibiting than a tribunal or court

·        All types of claims where the costs of any proceedings are likely to equal or exceed the value of the claim

Judging from the types of disputes above, one can see that mediation is targeted at instances where:

·        Parties seek an amicable solution

·        Parties want control over the outcome

·        Parties want to preserve a lasting relationship with the other side

·        Parties seek to save time and costs

Of course, even if your situation is not covered by the list above, it is always open to you to engage in mediation if you feel like it would be helpful.

Factors in deciding whether to go for mediation

Pros

Primarily, mediation promotes an interest-based approach towards dispute resolution, where it considers the concerns and interests of each party in finding a middle-ground. These may be factors and concerns not admissible in court, and can also be resolved by solutions which cannot be granted in court.

Mediation allows for direct and open negotiations (unlike the selfish nature of litigation), which can encourage effective communication between parties and creative problem solving.

The cooperative and non-confrontational nature of mediation in turn leads to a more peaceful split between parties, which can facilitate amicable long-term relationships. As decisions are consensus-based, parties are likely to be more willing adopt a ‘give-and-take’ mentality in the interest of finding common ground.

Also, compared to litigation, mediation is a more cost and time-effective. Mediation usually cuts the high legal costs associated with preparation for trial, with the added benefit of a quicker resolution if parties can find an agreeable solution early in the process.

Finally, mediation also allows parties to take control of the outcome. In litigation, the eventual binding outcome is solely in the hands of the judge, and may not even be in the complete interests of either party. Mediation gives parties a chance to find solutions which are agreeable to both parties.

Cons

However, mediation does have its weaknesses. Firstly, a mediator cannot level any imbalance of power between the parties. Where there is educational, emotional, or power imbalances between the parties, the mediator is unable to intervene if the weaker party merely gives control of the decision-making process to the more dominant party. While an eventual agreement may be reached, this may lead to unjust outcomes where the agreement heavily favours the interests of only one party ahead of the other.

Secondly, successful mediation necessarily relies on the full cooperation of both parties, especially during the discovery process. Here, uncooperative parties may hinder progress if they refuse to provide important documents such as financial statements as all disclosure is voluntary.

Further, as lawyers are not constantly present during the negotiation process, they can only offer an objective view of the legal implications of any terms which arise in the draft mediated agreement. The professional objective opinions of lawyers who are unsure about the context upon which agreements were made may be counterproductive to mediation if they manage to persuade their clients to change their minds on agreed terms.

Lastly, failure in negotiation usually just means wasted time and money, as parties have to start afresh with the litigation process.