Mediation Symposium Keynote Address

Information:

Date:

2016-05-20

THE LAW SOCIETY MEDIATION SYMPOSIUM KEYNOTE ADDRESS
ASSOCIATE PROFESSOR HO PENG KEE

Good morning. I am happy to join all of you for this milestone- the Mediation Symposium. It’s great to see the many participating organisations, led by the Law Society, pool their expertise and resources to mount this important event.

I say this with some personal pride and satisfaction. In the 90’s, I had the privilege, as political office-holder in the Ministry of Law, of leading a multi-ministry and multi-agency Committee that studied how to advance the ADR cause in Singapore. The Law Society was represented on it. After several months of intense discussion, we submitted a Report to the Government, which the government accepted, that, amongst other things, pushed for the promotion of mediation in Singapore on a wide front. We had assessed what was happening worldwide, in particular, in Australia and the US. We also noted that in Singapore, the momentum had been set by the then Subordinate Courts, led by Senior District Judge Richard Magnus who, together with his officers, had initiated many ground-breaking initiatives that leveraged on the benefits of mediation. These included the CDR or Court Dispute Resolution process that leveraged on mediation, early neutral evaluation and mediation-arbitration. Professor Jayakumar, as Minister for Law, had said then that “the Committee has done a comprehensive study and made recommendations that are practical and relevant to our society.”

That Report led to the formation of community mediation centres or CMCs in Singapore. The Report also noted and supported the setting up of a commercial mediation centre under the auspices of the Singapore Academy of Law, which as we know, has come to pass and subsequently, has developed exponentially as the Singapore Mediation Centre. To consolidate the mediation movement in Singapore, the Ministry of Law (MinLaw) formed a Community Mediation Unit in 1997 within the Ministry, and also constituted a wider-based ADR Resource Panel that promoted mediation in a wide variety of settings. The Panel, with members hailing from diverse backgrounds such as mediators, lawyers, academics, arbitral and mediation institutions, community leaders, the Courts and several relevant Ministries, offered a ready and convenient platform for mediation practitioners in diverse areas such as consumer contracts, small commercial claims, banking and insurance, construction, family, surveying and valuing as well as real estate to share ideas and experiences. I had the privilege of chairing that Committee, and we had frank and useful conversations. In 2004, the Panel evolved into an Advisory Committee as the pieces of jigsaw were falling into place nicely. A high point for the Committee was the organising of a National ADR Forum in January 2005.

So, that is the context of how mediation started in Singapore. I had the privilege of championing its cause. 5 years after stepping down from political office, I remain committed as ever to the cause of mediation. I chair an Advisory Committee on Community Mediation at the MinLaw; a Board member of the Singapore Mediation Centre or SMC; a patron of the Eagles Mediation and Counselling Centre and as a church elder, do a fair bit of counselling and sometimes mediation as well.

Now, let’s “fast-forward” to the present. This Symposium presents a wonderful opportunity for all stakeholders, like we did in the mid-90’s to take stock - that is, to assess where we are, see how far we have come, project what else needs to be done and very importantly, together, resolve to do more to take the mediation revolution ever further forward!   And there is no better time than this.

Just recently, in March, Singapore successfully organised the inaugural Global Pound Conference. Led by MinLaw, SMC and the State Courts, and taking a whole of Singapore approach which involved many other ADR players, it provided a ready platform for mediation and ADR stakeholders from all over the world to gather to see how we can propel dispute resolution, including mediation, to the next level.  For a start, instead of describing ADR processes such as mediation and arbitration as “alternative” dispute resolution processes, i.e. alternative to litigation – thus putting litigation in focus as a mainstay of resolving disputes, Chief Justice Sundaresh Menon, in opening the Conference, suggested that we use the term “appropriate” dispute resolution process instead. I fully agree with this. Especially in an Asian context, mediation was really the traditional way of settling disputes in our extended families and kampongs of old. We imported litigation, as an adversarial process, from the West as a common law phenomenon.  So, really, the slate should be a clean one. This way, when a dispute is brewing and needs some intervention, the first question should not be whether to sue or not” but “what is the best approach to resolve the dispute”.

Next, many in this audience will know that education is key. Everyone must be informed about the benefits of mediation and how they can have recourse to it. Any misapprehensions about it should be dispelled. Any obstacles to seeking it should be eliminated. This education should be broad-based and widespread, encompassing not only potential disputants – whether SME businessmen, Board members of big, listed companies, neighbours, family members, consumers etc-  but also likely advisors and intervenors such as in-house lawyers, external lawyers, counsellors, the Police, Town Council staff etc. On this front, all of us must gear up.

In this regard, I encourage all our law firms to seriously introduce in-house courses and seminars where their lawyers will be trained on how to decide on what is the best ADR recourse i.e. most appropriate dispute resolution process. Better still, whilst we often laud the “litigators” in our top firms, let us take a broader, more inclusive approach and honour the top “dispute resolvers” in our law firms. Our lawyers need to undergo a mind-set change and think “ADR” instead of “litigation or settlement”.  At the outset of any brewing dispute, their first consideration should be how best would this matter be dealt with, to the best interests of the client. Indeed, changes in the Supreme Courts’ Practice Directions (Amendment No. 1 of 2016)  now makes it a lawyer’s professional duty to advise clients’ on the different ways disputes may be resolved using an appropriate ADR, in other words, ADR should be considered at the earliest possible stage to facilitate a just, expeditious and economical disposal of a civil case. On its part, SMC would like to see the emergence of more full-time mediators in Singapore, where those in the field are able to make a living from mediation as a profession. We have a few now, but we can do with more!

From the users’ point of view, I would encourage our companies’ Board of Directors to bone up on this issue too, and not just leave it to the paid officers of the companies they lead to decide how best to resolve brewing disputes. So Directors in our “C-suite” companies, please embed “ADR in your corporate DNA! Indeed, all of us living in compact, urbanised Singapore should embed mediation in our DNA. On this score, I commend CMC’s and the Singapore International Mediation Institute’s efforts in reaching out to our students to get them to “think-mediation!”

Another area is for us to find ways to effectively dovetail the use of mediation and arbitration. Well-framed “Arb-Med-Arb” clauses are one way to go. In this regard, SIMC and the Singapore International Arbitration Centre’s (SIAC) joint service, the Arb-Med-Arb protocol, which allows parties to reach a settlement through mediation, while ensuring that the outcome is enforceable as a consent arbitral award under the New York Convention is commendable. I understand that for domestic disputes, SMC is re-launching its med-arb protocol.  Yet another area is focused and cross training of mediators and arbitrators.  Indeed, mediation and arbitration should not be viewed as competitors. If we truly believe in what we advocate i.e. “what is the most appropriate way to settle this dispute” – whether it is litigation, arbitration, mediation or hybrid approaches leveraging on the best in each process (as well as specialist processes such as neutral evaluation), then all of us in the ADR sector should work together for win-win-win outcomes. Together, we then grow the pie, both domestically and internationally.

Together with education, there is also a need to forge ahead to raise the standard and quality of our mediators. On this score, the formation of Singapore International Mediation Institute (SIMI) in November 2014 is timely. I applaud its efforts in the area of accreditation. I also recognise the contribution of established trainers such as Community Mediation Centre’s (CMC) Dr Lim Lan Yuan, SMC’s George Lim SC and Loong Seng Onn and Harmony Mediation Group’s Linda Heng and encourage them to press on. Indeed, I would encourage all of you who are involved as mediators or as legal advisors to parties to mediation to tap this rich training resource.

I am happy that MinLaw remains as committed today to the promotion of mediation as it was 20 years ago when it enacted the Community Mediation Centres Act in 1998. Key milestones along the way include the nurturing of a strong corp of volunteer mediators at the CMC; support extended to the SMC in various ways; establishment of SIMI and SIMC in 2014; commencing the operations of Community Disputes Resolution Tribunal in late 2015 and putting out a draft Mediation Bill for public consultation which seeks to strengthen the legislative framework for mediation, incorporating features such as recording of mediated settlement agreements, affirming the confidentiality of mediation proceedings and providing the statutory basis for stay of court proceedings.

The Courts too have been outstanding in their support of ADR. In 2011, mediation was made mandatory for divorcing couples with children who were minors (under 8 years old), at the Family Court’s Child Focused Resolution Centre. This was extended in 2013 and 2014 to children under 13 years and 21 years respectively. In 2012, we saw the introduction of the Presumption of ADR in the State Courts. The Supreme Court in turn introduced the ADR Offer Procedure in 2013. And then earlier this year, amendments were made to the Supreme Court Practice Direction to make it the professional duty of lawyers to advise their clients on the possible use of ADR at the earliest possible stage.

Going forward, my hope is that the various mediation players in Singapore will pursue, indeed, embrace closer collaboration. It is good to see that there is some movement on this score.  But more can be done. Taking a “Singapore Inc.” approach, all the stakeholders should further develop their respective strengths to grow the collective pie - not just in terms of the number of cases, which I see is growing in our various centres, but more importantly and strategically, strengthening the eco-system; enhancing the mediation culture; projecting Singapore as an ADR hub. So for example, as SMC has a gained a strong reputation for the training of overseas parties, having conducted workshops in a spread of countries that include Myanmar, Fiji, Cambodia, Brunei, Laos, Thailand and Vietnam, it should be Singapore’s flag-bearer on this front.  Domestically, SMC’s strength in commercial mediation, specialist expertise such as CMC in community disputes as well as EMCC’s and Harmony Mediation Group’s experience in family dispute should be tapped. In the same vein, it is good to see that SMC and SIMC signed an MOU in 2015 to cooperate on general promotion, training and development, sharing of information and resources and also facilitating the introduction to international mediation bodies and projects. In terms of reaching out to students with the mediation message, it is good that CMC and SIMI have informally segmented their target audience. CMC reaches out to our secondary school students whilst SIMI targets more the tertiary students. In this regard, the launch of the Singapore International Dispute Resolution Academy is a step in the right direction which I hope will have the effect of further galvanising and indeed, synergising all these efforts. In summary, let us co-create a virtuous cycle to entrench ADR, especially mediation, in all sectors in Singapore and beyond.

With this rallying call, I congratulate all of you for being part of our Mediation Revolution. We have come a long way. But working even closer together, we can forge a brighter future for Singapore as an ADR hub. Thank you.