Mediation Practices in ASEAN: The Singapore Experience Teh Hwee Hwee*

Mediation Practices in ASEAN: The Singapore Experience Teh Hwee Hwee* Introduction The mediation movement in Singapore started in the 1990s. Since then, there has been rapid and continuous growth in the use of mediation to resolve legal and other disputes. As the Honourable Chief Justice Chan Sek Keong noted in a speech made in 2009: In less than 20 years, we have... implanted mediation into the genetic makeup of a large number of our lawyers and also members of the various professional, business and industry groups. 1 Mediation has delivered on many of its promises in Singapore. This paper discusses Singapore s experience with mediation and the factors that contributed to its success. It also proposes various ways for ASEAN nations to collaborate in the spirit of ASEAN, as symbolised by the ASEAN Charter, and to create a synergy that a single jurisdiction cannot achieve on its own. Traditional and modern forms of mediation Mediation has its roots in the Asian culture, and has been practised since the early days of Singapore s history. Traditional forms of mediation often involved the intervention of respected community leaders bringing disputants together to talk out their differences and counselling them along the way. For example, disputes within the Chinese community were generally settled according to Chinese rules and customs and, at times, would be conducted in * The author is the Deputy Registrar of the Supreme Court of Singapore and a member of the Board of Directors of the Singapore Mediation Centre. The author acknowledges with gratitude the invaluable assistance of Ms Eunice Chua, Assistant Registrar of the Supreme Court and Assistant Director of the Singapore Mediation Centre, in the preparation of this paper. The author also wishes to thank the Honourable Second Solicitor- General, Mr Lionel Yee, Ms Carol Liew (Registry of the Supreme Court of Singapore), District Judge Joyce Low and District Judge Dorcas Quek (Subordinate Courts of Singapore), Mr Pang Khang Chau (Attorney- General s Chambers of Singapore), Associate Professor Joel Lee (Faculty of Law, National University of Singapore), Mr Loong Seng Onn (Singapore Mediation Centre), and Ms Gloria Lim and Ms Elsie Tjoeng (Ministry of Law of Singapore) for their comments and/or for the information and statistics that they have provided. Any errors and omissions remain the sole responsibility of the author. 1 See speech of the Honourable Chief Justice Chan Sek Keong at the Launch of the Singapore Management University Centre for Dispute Resolution (16 April 2009), <http://app.supremecourt.gov.sg/default.aspx?pgid=2841&printfriendly=true> (accessed 30 December 2011) [Speech at launch of SMU-Centre for Dispute Resolution]. 1

Chinese clan associations. 2 Akin to the Chinese, the Malays in Singapore value personal relationships and trust, preferring non-confrontational solutions that are consistent with Islamic principles, and the informality of mediation conducted in accordance with customary standards and etiquettes of social interaction. 3 Disputes were also amicably settled by panchayat or community council of the Indian communities, and anecdotal evidence further suggests that mediations have also taken place in Hindu temples. 4 Traditional forms of mediation are similarly practised in Singapore s neighbouring countries 5 like Malaysia (in view of the emphasis on doing good, which comprises adab that requires the show of courtesy in word, deed and action, and rukun that encourages social harmony), 6 Indonesia (where consensual procedures for decision-making through the application of customary standards and criteria, or adat, are widely employed) 7 and Thailand (in line with the cultural disapproval for confrontation and emphasis on Buddhist values like compassion). 8 2 Laurence Boulle and Teh Hwee Hwee, Mediation Principles, Process and Practice (Singapore: Butterworths Asia, 2000) at p 191 [Boulle and Teh]; Lim Lan Yuan, The Theory and Practice of Mediation (FT Law and Tax Asia Pacific: 1997) at p 366 [LY Lim]. 3 Boulle and Teh, supra note 2, at p 191; Lim Lei Theng and Carol Liew, Community Mediation Cultural Roots and Legal Heritage, paper delivered on 27 March 1999 at the 2 nd Conference on Alternative Dispute Resolution: Mediation: Yesterday s Ideas, Today s Techniques, National University of Singapore, Conference Proceedings at p 34; LY Lim, supra note 2, at p 368. 4 Boulle and Teh, supra note 2, at pp 191 192; Joel Lee, The ADR Movement in Singapore in The Singapore Legal System (Singapore University Press: 1999) (Kevin Tan ed), at pp 414 47, 427. 5 See, for example, Bruce E Barnes, Culture, Conflict and Mediation in the Asian Pacific (Maryland, US: University Press of America, 2006) [Barnes]; Lim Lan Yuan, Mediation Styles and Approaches in Asian Culture, Conference Proceedings of the 2nd Asia Pacific Mediation Forum: Developing a Mediation Culture, Singapore (19 22 November 2003) (archived at <http://www.ausdispute.unisa.edu.au/apmf/2003/papers/limlanyuan.pdf>) (accessed 30 December 2011); Boulle and Teh, supra note 2; Conflict Management in the Asia Pacific (Kwok Leung & Dean Tjosvold eds) (Singapore: John Wiley & Sons (Asia), 1998) [Conflict Management in the Asia Pacific]; and Christopher Moore and Mas Achmad Santosa, Developing Appropriate Environmental Conflict Management Procedures in Indonesia Cultural Survival Quarterly 1995; 19(3): 23 29 [Moore and Santosa]. 6 Joel Lee and Teh Hwee Hwee, The Quest for an Asian Perspective on Mediation in An Asian Perspective on Mediation (Joel Lee & Teh Hwee Hwee eds) (Singapore: Academy Publishing, 2009) [Lee and Teh] at p 5; Barnes, supra note 5, at pp 91 92. 7 Boulle and Teh, supra note 2, at pp 189 190; Lee and Teh, supra note 6, at p 6; Moore and Santosa, supra note 5. 8 Boulle and Teh, supra note 2, at p 190; Thawatchai Suvanpanich, Thailand in Dispute Resolution in Asia (1997, M Pryles ed) at pp 261 92. 2

By the 1990s, however, traditional forms of mediation in Singapore had become less common due to urbanisation and increased exposure to western influences, 9 and more Singaporeans turned to the courts and other official forums to settle their disputes. 10 The modern mediation movement started when contemporary attitudes were increasingly litigious. That could not have been timelier, considering the palpable need in modern society for strong and long term social and business relationships that could survive disputes. 11 Modern forms of mediation There were three key initiatives that marked the start of the mediation movement in Singapore. Firstly, court-based mediation was introduced by the judiciary in 1994. Secondly, the Singapore Mediation Centre ( the SMC ) was established to provide private commercial mediation in response to a call by the Honourable Chief Justice Chan Sek Keong (then the Attorney-General) at the Opening of Legal Year in 1996 12 to encourage the mediation of civil disputes. Thirdly, community mediation was made available by the Ministry of Law through Community Mediation Centres ( CMCs ) that started operations in 1998. Court-based mediation, private commercial mediation and community mediation remain the main forms of mediation in Singapore today. This paper will focus on court-connected mediation at the Subordinate Courts, private commercial mediation at the SMC and community mediation at the CMCs. It will also highlight the work of some tribunals, government departments, and professional, industry and other groups involved in mediation. It should first be mentioned that mediation as is practised now is different from traditional forms of mediation because it is largely institutionalised. Traditional forms of mediation were ad hoc, informal and unstructured in nature. Documentation and written rules and code were 9 See speech of the former Chief Justice Yong Pung How at the Launch of DisputeManager.com (31 July 2002), <http://app.subcourts.gov.sg/data/files/file/ejustice/archives/cjspeech_launchdisputemanagerdotcom.pdf> (accessed 30 December 2011). 10 See ibid. See also the speech of the retired Justice Goh Joon Seng, the first Chairman of the Singapore Mediation Centre at the 6 th Lawyers Engaged in Alternative Dispute Resolution (LEADR) International Conference in Australasia on Alternative Dispute Resolution (3 October 1998), Christchurch, New Zealand, <http://www.mediation.com.sg/speech_5.htm> (accessed 30 December 2011). 11 See the speech of the former Chief Justice Yong Pung How at the launch of the Singapore Mediation Centre (16 August 1997), <http://www.mediation.com.sg/speech_1.htm> (accessed 30 December 2011). 12 See the speech of the Honourable Attorney General Chan Sek Keong (as he then was) at the Opening of the Legal Year 1996 (6 January 1996), <http://www.mediation.com.sg/speech_10.htm> (accessed 30 December 2011). 3

almost non-existent, and mediator training unheard of. In contrast, institutionalised mediation practice reflects the influence of mediation practices overseas, particularly those in the United States, Australia and the United Kingdom, and is characterised by formalities that take the form of mediation rules and procedures, mediators code of conduct, agreements to mediate, settlement agreements and prescribed fee schedules. Mediators are also required to undergo structured training programmes and assessed before they are accredited and allowed to mediate. The approach and methodology of traditional and institutionalised mediation are also quite different. 13 The issue relating to different approaches and methodologies of mediation will be dealt with later in this paper under the section Culturally appropriate models of mediation. It would now be appropriate to discuss Singapore s experiences with mediation, its best practices and the factors that contributed to the success of its mediation movement. Court-based mediation Court-based mediation was introduced through the Court Dispute Resolution ( CDR ) process in the Subordinate Courts in 1994. A Court Mediation Centre was set up a year later and it has since evolved into the present-day Primary Dispute Resolution Centre ( PDRC ). The PDRC provides CDR services for civil suits lodged in the courts. There are a variety of alternative dispute resolution ( ADR ) processes offered, including neutral evaluation for motor accident cases and personal injury claims, and mediation for all other civil matters. Judges who have been trained in mediation preside over the CDR sessions. The mediation process includes joint sessions with the judge who may at an appropriate time call for private sessions before engaging all the parties in finding a mutually acceptable solution. 14 The judge plays a pro-active role during the mediation and guides the parties in understanding each other s concerns as well as the implications of going for a trial in the event that there is no 13 Boulle and Teh, supra note 2, at p 192, 195; Lee and Teh, supra note 6, at pp 10 13. 14 See The Subordinate Courts of Singapore, Court Dispute Resolution/Mediation, <http://app.subcourts.gov.sg/civil/page.aspx?pageid=54106#public_process4> (accessed 30 December 2011). 4

agreement. If the parties reach a settlement, the terms of settlement are recorded by the judge, but if not, the case will proceed to trial as scheduled and it will be heard by another judge. 15 Mediation has further been extended beyond civil cases to other types of cases. Mediations are also conducted in the Family Court, which was set up in 1995 as a specialised forum to deal with all family disputes, protect family obligations and help the parties involved to avoid further acrimony. 16 In 2007, the Maintenance Mediation Chambers was set up as a specialised unit within the Family Court to deal with maintenance complaints for failure to provide financial support for a child or spouse, for breach of orders made by the Tribunal for the Maintenance of Parents, or for breach of Syariah Court orders pertaining to the nonpayment of iddah and mutaah. 17 Since 1996, Magistrates Complaints concerning interpersonal relationships, such as those involving relatives, friends and neighbours, were referred to mediation in the hope that this would help to heal the broken relationships or at least prevent future recurrences of similar events. After the complainant files a summons, a notice may be issued for both the complainant and respondent to appear for mediation before a Magistrate or in the CMC. 18 15 See paragraph 25 of the Subordinate Courts Practice Directions, <http://app.subcourts.gov.sg/data/files/file/practicedirections/masterpd_31082011.pdf> (accessed 30 December 2011). 16 Boulle and Teh, supra note 2, at pp 222 23; Liew Thiam Leng, Alternative Dispute Resolution in Singapore, available at <http://app.subcourts.gov.sg/data/files/file/e-adr/paper%20for%20spidr.pdf> (accessed 30 December 2011) at pp 21 22. See also the Family Court website, <http://app.subcourts.gov.sg/family/page.aspx?pageid=3656> (accessed 30 December 2011). Counselling services are also available in the Family Court but a clear distinction is made between mediation and counselling. The focus of mediation is on practical issues, such as division of matrimonial property, whereas the focus of counselling is on emotional ones. See further Joel Lee, Mediation in Singapore, a paper presented at a Round Table Conference on Mediation in Asia, Japan from 30 31 August 2010 at pp 3 5 [J Lee] and the Counselling and You brochure produced by the Family and Juvenile Justice Division of the Subordinate Courts, <http://app.subcourts.gov.sg/data/files/file/family/brochure/brochure_councellingandyou.pdf> (accessed 30 December 2011). 17 See Annual Report of the Subordinate Courts 2009 at p 20, available at <http://www.courtexcellence.com/pdf/subcourts_ar09.pdf> (accessed 30 December 2011). See also the Family Court website, <http://app.subcourts.gov.sg/family/page.aspx?pageid=3656> (accessed 30 December 2011). 18 Boulle and Teh, supra note 2, at p 224. Also see the Subordinate Courts Court Dispute Resolution/Mediation website, <http://app.subcourts.gov.sg/civil/page.aspx?pageid=54106#public_about5> (accessed 30 December 2011). 5

The value of court-based mediation is evident from the statistics: In 2009, there were a total of 23,096 civil, family and criminal cases that were mediated. Of these, 20,154 (or 87%) settled. In 2010, there were a total of 20,436 civil, family and criminal cases that were mediated. Of these, 17,913 (or 88%) settled. From January to September 2011, 14,948 cases were mediated, of which 13,051 (or 87%) settled. 19 It was also recently reported that mediation has resulted in a significant reduction in the number of magistrates complaints that proceeded to trial in 2010, about 90% of the cases were disposed of by mediation, up from 83% in 2008. 20 In terms of real numbers, the number of magistrates complaints that proceeded to trial fell from 22 in 2008 to only three in 2009, and for the first ten months of 2011, there were only two that proceeded to trial. 21 These statistics bode well for the future of court-based mediation, which is expected to continue to contribute to keeping case backlog at bay, reducing the trial waiting period and filtering out cases unsuitable for court room litigation. The success of court-based mediation in Singapore may be attributed to the focus on ethics and cultivating best practices. To that end, a Code of Ethics and Basic Principles on Court Mediation has been developed to provide guidance to judicial officers, court counsellors and volunteers who mediate in the Subordinate Courts. 22 Resources are also invested to create a sustainable system that evolves over time to remain relevant. Other than settlement judges, the pool of mediators was expanded in 2009 to include legally qualified persons who have at least three years of post-qualification experience, and who have undergone an Associate Mediator training and accreditation programme jointly conducted by the Subordinate Courts and the SMC. 23 The community is also involved, with the PDRC managing Court Support Groups comprising lawyers, social workers, court 19 Statistical information provided by the Subordinate Courts of Singapore. 20 KC Vijayan, Fewer neighbours take fight to court (6 December 2011) Straits Times. 21 Ibid. 22 The Code of Ethics and Basic Principles on Court Mediation is available online, <http://app.subcourts.gov.sg/data/files/file/cdr/code%20of%20ethics%20and%20basic%20principles%20on %20Court%20Mediation%20June%20201010.pdf> (accessed 30 December 2011). 23 J Lee, supra note 16, at pp 2 3; Joyce Low and Dorcas Quek, The ADR Form in the Subordinate Courts: Finding the Appropriate Mode of Dispute Resolution Singapore Law Gazette (April 2010) [Low and Quek] at p 18, available at <http://app.subcourts.gov.sg/data/files/the%20adr%20form.pdf> (accessed 30 December 2011). 6

interpreters and other lay persons trained as counsellors or mediators. This has allowed the PDRC to draw on community resources and align its actions more closely with the objectives of the community it serves. 24 Another contributing factor is that mediation is only one of a number of ADR mechanisms in CDR. The others, such as neutral evaluation, 25 are available as well. This approach provides flexibility to refer the cases for resolution using the most appropriate method, and ensures that only suitable cases are mediated. More recently, the Subordinate Courts released Practice Direction No. 2 of 2010, 26 which introduced an ADR Form to ensure that ADR is considered by the parties and their lawyers. The ADR Form requires solicitors to indicate the salient characteristics about the case and parties to certify that their solicitors have explained to them the various ADR options available and their benefits. Solicitors for each party are required to separately submit an ADR Form when taking out or responding to a summons for directions under Order 25 Rule 1 of the Rules of Court. By that stage in the court proceedings, all the pleadings would have been filed and the issues in dispute would have crystallised. This means that the parties will have a good understanding of each other s positions and will be well-placed to engage in mediation. In addition, the use of ADR at this stage will potentially save substantial legal costs that otherwise have to be incurred in preparing for a trial. Parties who manage to settle their disputes at the summons for directions stage or shortly thereafter can therefore reap considerable benefits. 24 Carol Liew, Recent Developments in Mediation in East Asia in ADR in Business: Practice and Issues across Countries and Cultures, Volume II, (Arnold Ingen-Housz ed) (Kluwer Law International, 2011) [C Liew] at pp 526 27. 25 See Registrar s Circular No. 3 of 2011, <http://app.subcourts.gov.sg/data/files/rc3%20of%202011.pdf> (accessed 30 December 2011), issued by the Subordinate Courts, which provides that with effect from 17 October 2011, the PDRC will commence a pilot programme to introduce neutral evaluation. Neutral evaluation involves the parties and their lawyers making succinct presentations of their case at a hearing to be presided over by a judge. As the process is explicitly evaluative in nature, the parties and their lawyers are expected to apprise the judge of all key evidence available to them at that juncture. Based on the arguments and evidence presented at the neutral evaluation hearing, the judge will deliver an evaluation of the relative merits of the parties claims and/or defences at the conclusion of the neutral evaluation hearing. See also Dorcas Quek and Seah Chi-Ling, Finding the Appropriate Mode of Dispute Resolution: Introducing Neutral Evaluation in the Subordinate Courts Singapore Law Gazette (November 2011), <http://www.lawgazette.com.sg/2011-11/247.htm> (accessed 30 December 2011). 26 Available at <http://www.singaporelawwatch.sg/legal/ln2/rss/noticedirect/67217.pdf?utm_source=rss%20subscription&utm_ medium=rss> (accessed 30 December 2011). 7

Upon submission of the ADR Form, the judicial officer will recommend that the matter proceed on one of three tracks: (a) mediation in the PDRC or the SMC; (b) arbitration at the Law Society Arbitration Scheme; or (c) adjudication in the trial courts. 27 This is a significant development as it compels the parties and their lawyers to deliberate on available options like mediation, and to make a considered decision accordingly. It will also ensure that the lawyers provide a risk-benefit analysis of litigation concerning the matter in question and advise on how best to proceed further. Indeed, although it will be possible for lawyers to simply go through the motions, the ADR form is a positive step towards encouraging a paradigm shift and a culture change in relation to dispute resolution. 28 Mediation by tribunals and government agencies In May 1996, a Committee on Alternative Dispute Resolution ( the Committee ) was formed by the Ministry of Law to look into how ADR processes, in particular mediation, could be further promoted in Singapore. The Committee observed that there was a need for a framework that encompassed fast, inexpensive and non-confrontational mechanisms for conflict resolution outside the court system. 29 In July 1997, the Committee recommended, inter alia, that a network of easily accessible CMCs be set up to foster community cohesion through the kindling of the old kampong (or village community) spirit. Community leaders and volunteers were to be trained to perform the roles of mediators and become the modern counterparts of the kampong ketua (or village headman) of the past. The recommendations of the Committee were accepted by the government in the same month. The Community Mediation Centres Act was promulgated and came into force on 9 January 1998. That Act provided for the establishment of CMCs to offer mediation services in connection with family, social or community disputes that do not involve any seizable offences under any written law. 27 Low and Quek, supra note 23, at pp 18 and 20. 28 Joel Lee, Court-based initiatives for mediation in Singapore [2011] Asian JM 60 at 63. 29 Report of the Committee on Alternative Dispute Resolution dated 4 July 1996. 8

There are three CMCs and seven CMC satellite mediation centres. 30 The cases of the CMCs comprise direct intakes, referrals from Magistrate Courts and referrals from other public agencies. 31 The bulk of the cases handled by the CMCs relate to disputes between neighbours (about 71%) and family disputes (12%). 32 The cases are mediated by a panel of 133 volunteer mediators from all walks of life, age groups, ethnicities and professions. 33 In line with the objectives of the CMCs and the nature of the disputes the CMCs deal with, the mediators use a highly informal process that focuses on restoring peace and amicable relationships between the disputants. The CMCs mediated 745 cases in 2009 and 503 cases in 2010. Out of a total of 5349 mediations conducted since the inception of the CMCs up to the end of 2010, the CMCs boast a settlement rate of 72%. 34 The progress made by the CMCs may be attributed to the support from the Government, which funds its operations and its programmes to increase public awareness of community mediation and its availability. 35 To that end, public road shows and exhibitions have been conducted by the Community Mediation Unit ( CMU ) of the Ministry of Law to educate the general public, 36 and in particular, youths. For example, since 2006, CMU has been organising a Youth Mediation Forum to enable students to gain insights into amicable conflict resolution through mediation. It has also through assembly programmes, peer mediation workshops and talks reached out to thousands of students from 60 to 90 schools each year. 37 CMU also works closely with grassroots organisations and other 30 With effect from 13 February 2012, there will be two CMCs, one located at the Subordinate Courts and another across the road from the Supreme Court. This is a move to centralise efforts with a view to maximising available resources and to providing comprehensive services to the public. Information provided by the CMC. 31 Gloria Lim, Cheryl Lim and Elaine Tan, Promoting mediation as an alternative dispute resolution process to resolve community and social disputes A Singapore perspective, a paper presented at the 1 st Asian Mediation Association Conference from 4 5 June 2009, Singapore, at p 5 [G Lim et al]. 32 See CMC Annual Report 2010/2011 at p 10, <http://app2.mlaw.gov.sg/linkclick.aspx?fileticket=2aebbramo8q%3d&tabid=310> (accessed 30 December 2011) [CMC Annual Report 2010/2011]. 33 See id., at pp 13 14. 34 See id., at pp 8-9. 35 G Lim et al, supra note 31, at pp 7 9; C Liew, supra note 24, at p 527. 36 See CMC Annual Report 2010/2011, supra note 32, at p 31. 37 See generally CMC Annual Reports 2008/2009, 2009/2010 and 2010/2011, <http://app2.mlaw.gov.sg/publications/annualreport/tabid/310/default.aspx> (accessed 30 December 2011); C Liew, supra note 24, at p 527. 9

frontline partners to ensure that community and social disputes are referred to the CMCs and that the CMCs continue to be effective in resolving such disputes. 38 Mediation services are also provided by numerous agencies and tribunals such as the Ministry of Manpower, 39 the Industrial Arbitration Court, 40 the Maintenance of Parents Tribunal, 41 the Strata Titles Board 42 and the Intellectual Property Office. 43 Some of these mediation services are supported by a legislative framework that provides a basis for the consideration of mediation or even at times, mandating it. Apart from the Community Mediation Centres Act, provisions for mediation have been woven into pieces of legislation such as the Women s Charter, section 50(1) of which empowers the court to consider the possibility of a harmonious resolution and, with the consent of parties, refer them for mediation. In the same vein, but without requiring the consent of parties, under section 42(4)(b)(i) of the Medical Registration Act, a Complaints Committee may refer a matter for mediation between the registered medical practitioner and the complainant when it considers that no investigation of the practitioner s conduct is required. Similarly, under section 5(6) of the Maintenance of Parents Act, the Tribunal shall, before hearing an application for maintenance orders by parents, refer the differences between the parties to a conciliation officer for mediation. As for the Industrial Relations Act, 38 See CMC Annual Report 2010/2011, supra note 32, at p 2. 39 The Ministry of Manpower offers mediation services for disputes between employers and employees under the auspices of its Executive Mediation Unit, as well as mandatory tripartite mediation under the framework of the Industrial Relations Act. See Greater protection for PMETs (27 January 2010) The Straits Times, <http://www.straitstimes.com/sti/stimedia/pdf/20100127/sg-1.pdf> (accessed 30 December 2011); A Guide to Tripartite Mediation, <http://www.mom.gov.sg/documents/employmentpractices/tripartite%20mediation%20brochure.pdf> (accessed 30 December 2011). 40 Mediation is carried out by the Registrar of the Industrial Arbitration Court to help parties resolve their disputes so as to avert arbitration. See IAC Proceedings, Industrial Arbitration Court website, <http://www.iac.gov.sg/home/pages/proceedings.aspx> (accessed 30 December 2011). 41 See Commissioner for the Maintenance of Parents, Ministry of Community Development Youth and Sports website, <http://app1.mcys.gov.sg/aboutmcys/ourpeople/divisionsatmcys/familyformationstability/familyservice sdivision/tribunalforthemaintenanceofparents.aspx> (accessed 30 December 2011). 42 See General Information on Application for Collective Sale of Property, Strata Titles Board website, <http://www.mnd.gov.sg/stb/generalinformation.html> (accessed 30 December 2011). 43 See Hearings & Mediation, Intellectual Property Office of Singapore for more details, <http://www.ipos.gov.sg/topnav/svc/hearings+and+mediation.htm> (accessed 30 December 2011). 10

Part IVA, which took effect on 1 February 2011, makes provision for a system of tripartite mediation to resolve disputes involving executive employees. 44 Private mediation Many of the private commercial mediations in Singapore are conducted under the auspices of the SMC. After the idea of setting up a national mediation centre was mooted at the 1996 Opening of the Legal Year by the Honourable Chief Justice Chan Sek Keong, then the Attorney-General, the Supreme Court and the Singapore Academy of Law launched a pilot project for the provision of a private commercial mediation service. 45 It is different from the mediation provided by the Subordinate Courts as it is not part of the court process. Also, unlike court-based mediation, it is chargeable. 46 As institutionalised private mediation was new to the legal profession then, a significant amount of time and effort was invested in educating lawyers about mediation, to enable them to advise their clients on the option. Much of that was done at pre-trial conferences in the Supreme Court, where the mediation process, advantages and costs of mediation, and the role of the lawyers in that process was explained. 47 In less than a year, 84 cases (most of which were matters pending before the High Court) were referred for mediation, with a 75% success rate for those mediated. 48 The mediation service under the pilot project was taken over by the SMC, which was set up in August 1997 as a company limited by guaranteed of the Singapore Academy of Law. Its primary functions include the provision of ADR services, training and accreditation of mediators and the promotion of mediation in Singapore and beyond. 44 Executive employee is defined in section 30F of the Industrial Relations Act to refer to employees receiving a salary not exceeding $4,500 a month and who are members of a trade union which has not been given recognition by the employer under section 17 of the Industrial Relations Act. 45 Boulle and Teh, supra note 2, at p 207. 46 In addition to an administrative fee of $250, the current schedule of mediation fees of the Singapore Mediation Centre starts from $900 per party per day. See <http://www.mediation.com.sg/pdf/mediation_annex_c.pdf> (accessed 30 December 2011) for the complete fee schedule. 47 Boulle and Teh, supra note 2, at pp 208 209. 48 Id., at p 211. 11

The SMC has since grown from strength to strength. It now provides a range of ADR services besides mediation, including adjudication, 49 neutral evaluation and the Singapore Domain Name Dispute Resolution Service, 50 although its focus continues to be on the mediation of high value commercial disputes. 51 An example of such mediation was that between Singapore Airlines and British Airways concerning their First Class seats. Singapore Airlines and British Airways had initiated legal proceedings against each other after British Airways claimed that Singapore Airlines had infringed its patent when Singapore Airlines introduced its First Class seat beds or skysuites in 1998. After two days of mediation at the SMC, the parties acknowledged the other s legitimate concerns that gave rise to [the] dispute and were pleased to have found a sensible compromise. 52 The legal suits were withdrawn. As of 1 December 2011, the largest claim that was referred to the SMC involved a claim of about S$151 m. Its annual caseload is above 100 matters. In 2010, the SMC mediated 118 cases with a settlement rate of 73.7% and 114 cases in 2011 with a settlement rate of 79%. Majority of the matters that settled were mediated within a day. 53 The SMC maintains three panels of mediators. The panel of principal mediators comprises former High Court Judges, Senior Counsel, lawyers, doctors, architects, engineers, IT specialists and other professionals. The panel of associate mediators includes mediators who 49 Adjudication occurs under the framework of the Building and Construction Industry Security of Payment Act (Cap 30B, 2006 Rev Ed). The SMC Adjudication Procedure Rules may be found at <http://www.mediation.com.sg/adjudication.htm> (accessed 30 December 2011). 50 The Singapore Domain Name Dispute Resolution Service ( SDRS ) provides a low-cost and quick mechanism for parties to resolve their disputes concerning the use of.sg domain names. A party wishing to challenge a.sg domain name registration will lodge a complaint with the Secretariat of SDRS, who will appoint an Administrative Panel to resolve the dispute. If parties agree, mediation will be attempted first, but if either party does not agree to mediation or if mediation is unsuccessful, the Administrative Panel will decide the dispute. See <http://www.disputemanager.com.sg/sdrp/what.htm> (accessed 30 December 2011) for more details. 51 The SMC also has a mediation service for smaller claims of S$30,000 or less. Called the Small Case Commercial Mediation Scheme, it provides a simple and hassle-free system to deal with disputes relating to tenancy agreements, car repairs, unpaid salaries and renovation matters. Mediations under the scheme have enjoyed a settlement rate of about 90%, of which most of the cases are settled within four hours. See <http://www.mediation.com.sg/mediation_sccms.htm> (accessed 30 December 2011). The SMC further has a mediation service called the Family Law Mediation Scheme to help parties going through divorce or separation, and to deal with related ancillary issues such as custody, maintenance and division of matrimonial assets. The mediators are family lawyers who are experienced with matrimonial proceedings. See <http://www.mediation.com.sg/mediation_family_law_pilot_prj.htm> (accessed 30 December 2011). The fees under both schemes are lower than the fees prescribed under the SMC s standard fee schedule. 52 See the 18 February 2000 Press Release issued by Singapore Airlines and British Airways, <http://www.mediation.com.sg/pdf/sia-ba.pdf> (accessed 30 December 2011). 53 Information provided by the SMC. 12

have been accredited by the SMC more recently, and they are involved mostly in the mediation of cases under one of the specialist mediation schemes discussed below. The international panel of mediators consists of mediators who are internationally recognised peacemakers. Members on that panel may be called upon to mediate complex disputes between parties from different jurisdictions. As at 1 December 2011, there were 146 associate mediators, 142 principal mediators and nine international mediators. 54 Mediations at the SMC are governed by a standard Mediation Procedure, 55 which clearly outlines the mediation process, explains the role of the mediator, the mediation centre and the parties, and contains stipulations for confidentiality. After a case is referred to the SMC, the SMC will match the expertise and experience of the mediators to the case to leverage on the subject matter knowledge of the mediators. It also matches the language abilities of the mediators to the parties to avoid mediation through translation, which not only slows down the process but hinders the rapport-building between the mediators and the parties. Where appropriate, cases are co-mediated. For example, for a technical building and construction dispute, an architect or engineer may be assigned to conduct the mediation together with a lawyer. During the mediation, the mediators facilitate the negotiation between the parties and guide the parties through a problem-solving process. As the SMC adopts the facilitative approach to mediation with a focus on the interests of the parties, the dichotomy between process and substance is maintained in that the mediators control the process within which the parties discuss the substantive issues in dispute but the mediators will not intervene in the substantive issues, whether by evaluating the merits or suggesting the solutions for such issues. However, the SMC s Code of Conduct 56 and the Mediation Procedure do allow a 54 The nine international mediators are (in alphabetical order of their last name) Mr Martti Ahtisaari, former Finnish President and Nobel Peace Prize Laureate; the Honourable Michael J. Beloff, QC, prominent English barrister; Professor Antonia Handler Chayes, Professor of Practice in International Politics and Law, Fletcher School of Law and Diplomacy; Ambassador K Kesavapany, Director, Institute of Southeast Asian Studies and former Singapore High Commissioner to Malaysia; Professor Tommy Koh, Ambassador-At-Large at the Ministry of Foreign Affairs of Singapore; Professor Karl Mackie CBE, CEDR Chief Executive; Dr Christopher W. Moore, author and partner of CDR Associates; Professor Michael Pryles, Chairman, Singapore International Arbitration Centre; and Sir Laurence Street, former Chief Justice of the Supreme Court of New South Wales. Information provided by the SMC. 55 See <http://www.mediation.com.sg/mediation%20procedure_1%20april%202007.htm> (accessed 30 December 2011). 56 See <http://www.mediation.com.sg/pdf/mediation_annex_b.pdf> (accessed 30 December 2011). 13

mediator to evaluate the parties case if requested by all the parties involved to do so, and if he is satisfied that he is able to make the evaluation. In practice, mediators often find that they need to respond to the expectations of parties and their lawyers to provide direction and guidance regarding the substantive matters in dispute, and hence, the strict dichotomy between process and substance may not be rigidly maintained. 57 Lawyers are usually present at the SMC mediations and play an important role in assisting the mediators and advising their clients during the settlement process, including the drafting of the settlement agreement. The success of the SMC lay in its introducing private commercial mediation to the legal profession and creating a space for it in Singapore s civil justice system. This was possible in large part due to the support for the SMC from both the Supreme Court 58 and the Subordinate Courts, 59 which have a system in place for referring cases to it. In 2011, 68 out of 146 or 46.6% of the cases dealt with by the SMC were referred to it by the Supreme Court Registry or by Judges or Registrars of the Supreme Court. 60 The SMC s success was also due to the judiciary s endorsement of mediation as a method of dispute resolution. This endorsement was most recently reflected in an amendment to Order 59 Rule 5(c) of the Rules of Court, which took effect in September 2010. Order 59 Rule 5(c) explicitly mandates the Courts, in exercising their discretion as to costs, to take into account all the circumstances of the case, including the parties conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute resolution [emphasis added]. This provision supports mediation by introducing the spectre of costs sanctions, for example, where parties have unreasonably refused to consider mediation, thus encouraging lawyers and parties to consider the use of mediation to resolve their disputes. 57 Lee and Teh, supra note 6, at p 17. 58 In the Supreme Court, when cases are ready for their first pre-trial conference, they are referred to the SMC, which will issue a letter explaining the benefits of mediation and inviting the parties to consider mediation. This is done again when a case reaches its 14-month mark (these would usually be fairly complex cases on the brink of trial). Additionally, during pre-trial conferences as well as the hearing of interlocutory applications, the judges and registrars of the Supreme Court may suggest mediation to the parties on an ad hoc basis where a case appears suitable for mediation. See also Boulle and Teh, supra note 2, at p 216. 59 The Subordinate Courts have also utilised pre-trial conferences to discuss the possibility of resolving a case by ADR either at the SMC or the PDRC. See paras 18, 89, 102, 111 of the Subordinate Courts Practice Directions, <http://app.subcourts.gov.sg/data/files/file/practicedirections/masterpd_31082011.pdf> (accessed 30 December 2011). Settlement Conferences (involving the use of mediation or neutral evaluation) are also provided for in para 25 of the Subordinate Courts Practice Directions. 60 Information provided by the SMC. 14

Another factor which contributed to the SMC s success in entrenching private commercial mediation in Singapore s legal landscape was the extensive consultation with and education of members of the Bar that was undertaken at the time when the Supreme Court and the Singapore Academy of Law launched the pilot project to provide private commercial mediation. That exercise generated support for mediation and allowed for feedback from the lawyers to be gathered to improve the mediation service that the SMC eventually inherited from the pilot project, according to the requirements of the users and their stated preferences. The SMC s success lay also in promoting and expanding the use of mediation to numerous other industries and the business community. This may be seen from the specialist mediation schemes that have been developed over time to deal with niche areas that benefit from particular types of treatment or require particular expertise and experience. The following are some examples: (i) The Alternative Dispute Resolution Sports Scheme was launched in early 2008. Under this scheme, the SMC partners with sports organisations 61 and other ADR service providers 62 to resolve sports related disputes (e.g., disputes pertaining to athlete selections, discipline and contractual disputes). 63 (ii) The Medical Mediation Scheme was set up jointly with the Ministry of Health in 2008 to resolve healthcare disputes. The disputes may relate to patients or their families claims for financial compensation against the doctor or hospital, other claims for lapses in the standards of the clinical services delivered by medical practitioners, and billing and financial matters. 64 61 These include the Singapore Sports Council and the Singapore National Olympic Council. 62 These include the Singapore International Arbitration Centre and the Singapore Institute of Arbitrators. 63 Press release by the Singapore Sports Council at the launch of the ADR Framework for Sports on 7 January 2008, <http://www.ssc.gov.sg/publish/corporate/en/news/media_releases/2008/alternative_dispute.html> (accessed 30 December 2011). This scheme utilises a blend of mediation and arbitration to allow disputants to first mediate their dispute, and in the event that mediation is unsuccessful, proceed for arbitration. See C Liew, supra note 24, at p 521. 64 When an application is made under the Medical Mediation Scheme, the SMC will arrange a mediation session for both parties and will appoint a doctor-mediator (and if necessary, a co-mediator familiar with court procedures especially if litigation has been commenced). The scheme hopes to preserve the relationship between the parties (particularly where continued medical care by the same healthcare institution may be required), help patients and family members achieve closure in a potentially sensitive and emotional dispute, as well as protect health-care providers from public scrutiny and loss of reputation. See C Liew, supra note 24, at p 521; see also 15

(iii) Another scheme related to the medical field is the SMC-Medical Council Mediation Scheme, which is governed by the SMC-Medical Council Mediation Rules. The Medical Registration Act was amended in 2010 to give the Complaints Committee of the Singapore Medical Council the power to refer matters for mediation where it was unanimously of the opinion that no investigation of the conduct of the registered medical practitioner was necessary. 65 (iv) In 2010, the Council for Private Education Mediation-Arbitration Scheme was set up to resolve a growing number of disputes arising from or relating to the provision of services by a registered private education institution. 66 This scheme is enshrined in the Council for Private Education Act and the Private Education (Dispute Resolution Schemes) Regulations 2010. 67 (v) More recently in 2011, the Council for Estate Agents Mediation-Arbitration Scheme was established to resolve disputes between a licensed estate agent and his or her client. The relevant legislative provisions are the Estate Agents Act 2010 and the Estate Agents (Dispute Resolution Schemes) Regulations 2011. 68 Another illustration of the success of the SMC in promoting the use of mediation may be seen from its launch of the Mediation Charter in September 2011. The Mediation Charter is a Ministry of Health, Inquiries and Complaints Guide, <http://www.moh.gov.sg/content/moh_web/home/aboutus/feedback/inquiries_and_complaintsguide.html> (accessed 30 December 2011). 65 Upon referral, the SMC will appoint a mediator and a co-mediator, where necessary, and will make the arrangements for the mediation, including organising a venue and date for the mediation, and organising an exchange of summaries of cases and documents. See Section 42(4)(b)(ii), Medical Registration Act (Cap 174, 2010 Rev Ed) and Rule 5.1, Singapore Mediation Centre and Singapore Medical Council Mediation Rules. See also the Second Reading Speech by Mr Khaw Boon Wan, then the Minister for Health, in Parliament on 11 January 2010. 66 See Brochure for CPE Mediation-Arbitration Scheme, <http://www.cpe.gov.sg/cpe/slot/u54/publications/dispute%20resolution%20brochure.pdf> (accessed 30 December 2011). 67 The legislation provides for dispute resolution services to be provided by the SMC and the Singapore Institute of Arbitrators. See Council for Private Education Act (Act 21 of 2009), available at <http://www.cpe.gov.sg/cpe/slot/u54/legislation/private%20education%20act/pe%20act%20(cap%20247a). pdf> (last accessed 30 December 2011); Private Education (Dispute Resolution Schemes) Regulations 2010 (S272/2010),available at <http://www.cpe.gov.sg/cpe/slot/u60/docs/private%20education%20(dispure%20resolution%20schemes)%2 0Regulations%202010.pdf> (last accessed 30 December 2011). 68 The SMC is one of the approved mediation centres prescribed by the Estate Agents (Dispute Resolution Schemes) Regulations 2011. See Second Schedule, Part I, Estate Agents (Dispute Resolution Schemes) Regulations 2011. 16

pledge that organisations undertake to signal their commitment to promote mediation through five core actions, including using mediation as a first resort to resolve the organisation s disputes with other persons or organisations. 69 The 26 organisations that signed the Mediation Charter include Citibank, McDonalds, and Marina Bay Sands Singapore. 70 One of the most effective methods employed by the SMC to successfully promote the use of mediation to the different industries and the business community is, in the author s view, the training and education workshops that it conducts on a regular basis. Many of the mediators, whether mediating in the Subordinate Courts, the CMCs or under the auspices of other mediation schemes have undergone training at the SMC. During the training, participants are exposed to the concept of mediation, trained in mediation techniques, and practise those techniques through role-play. This process allows the participants to experience first-hand how the underlying interests of disputing parties, particularly their emotional and relational needs, may best be met through the non-adversarial process of mediation. Through the training, many participants come to a realisation of how effective mediation can be and become themselves enthusiastic advocates of mediation in their respective spheres of influence. The SMC has since extended its training activities and ventured overseas. It has conducted numerous workshops, including those for the Judiciary of Brunei, the Courts of the Dubai International Financial Centre, the Court of Appeals of the Philippines, the Supreme Judiciary Council of the State of Qatar and the Office of the Judiciary of Thailand. 71 To round off this section on private mediation, mention should be made that mediation services are also provided by other professional, industry, trade and consumer bodies, such as the Consumer Association of Singapore Mediation Centre, which primarily deals with consumer-to-business disputes and tourist-to-business disputes, 72 the Financial Disputes Resolution Centre, which specialises in the resolution of disputes between financial 69 See welcome address by the Honourable Justice Belinda Ang, Chairman, SMC, at SMC s annual appreciation lunch and launch of the Singapore Mediation Charter (9 September 2011), <http://www.sal.org.sg/lists/speeches/dispform.aspx?id=92> (accessed 30 December 2011). 70 Singapore Mediation Charter signatories, <http://www.smcmediationcharter.sg/signatories.html> (accessed 30 December 2011). 71 Information provided by the SMC. 72 CASE, Mediation, <http://www.case.org.sg/mediation.html> (accessed 30 December 2011). 17

institutions and consumers using a mix of mediation and adjudication 73 (such as those caused by the collapse of Lehman Brothers in the wake of the financial crisis in 2008), 74 the Law Society s SCMediate Scheme for the mediation of disputes between law practices by Senior Counsel 75 and the Law Society s Cost Dispute Resolve scheme for the mediation of disputes on legal costs, 76 just to name a few. 77 Culturally appropriate models of mediation Taking a broad and general view, common models of mediation include settlement mediation, facilitative mediation (sometimes referred to as interest-based mediation because it is most commonly practised with a focus on the interests of the parties), therapeutic mediation and evaluative mediation. 78 Settlement mediation seeks to encourage incremental bargaining towards a compromise point between the parties positional demands. The dispute is defined based on the parties own view of the problem and the type of mediator is usually one with a high status who is not necessarily trained in the techniques of mediation. In facilitative or interest-based mediation, the main objective is to manage a process for the parties to identify their underlying needs and to negotiate to meet those needs. A mediator with expertise in mediation processes is required to conduct this form of mediation, but he does not necessarily need knowledge of the subject matter in dispute. Evaluative mediation is 73 FIDReC, About Us, <http://www.fidrec.com.sg/website/background.html> (accessed 30 December 2011). 74 FIDReC Annual Report 2009/2010 at p 18, <http://www.fidrec.com.sg/website/annualreports/fidrec%20ar%202009-2010.pdf> (accessed 30 December 2011). 75 The Law Society of Singapore: SCMediate, <http://www.lawsociety.org.sg/membership/benefits/support_schemes/scmediate.aspx> (accessed 30 December 2011). 76 The Law Society of Singapore: Cost Dispute Resolve, <http://www.lawsociety.org.sg/public/you_and_your_lawyer/cost_dispute_resolve.aspx> (accessed 30 December 2011). 77 Mediation services are also offered by the Singapore Institute of Surveyors and Valuers Mediation Centre, the Institute of Estate Agents Mediation Board, the Association of Employment Agencies, the Singapore Institute of Architects, the Renovation Conciliation and Arbitration Procedure Programme of the Renovation and Decoration Advisory Centre, the Eagles Mediation and Counselling Centre, and the Family Mediation and Counselling Services provided by mosques. See Speech at launch of SMU-Centre for Dispute Resolution, supra note 1, Annex. 78 Boulle and Teh, supra note 2, at pp 28 30. See also Henry Brown and Arthur Marriott, ADR Principles and Practice (Sweet & Maxwell, 1993) at p 115, which refers to the facilitative and evaluative models; Simon Roberts, Three models of family mediation in Divorce Mediation and the Legal Process (Robert Dingwall and John Eekelaar eds) (Clarendon Press, 1988) at p 144, which refers to various models of family mediation. 18

more focused on legal rights and duties, with the objective of reaching a settlement within the anticipated range of court outcomes. The mediator will have expertise in the substantive areas of the dispute and does not necessarily have to be qualified in the use of mediation techniques. Finally, therapeutic mediation deals with the underlying causes of the parties problem with a view to improving their relationship as a basis for resolution of the dispute, which is characterised in terms of behavioural, emotional and relationship factors. The mediator requires expertise in counselling or social work in order to understand the psychological causes of the conflict. As mentioned earlier, mediation as is now practised is different from traditional forms of mediation because of the influence from the mediation movement in the West. Other than the formalities that are associated with institutionalised mediation practice, the approach and methodology are also different because the facilitative or interest-based model, which was imported into Singapore in the 1990s during the early days of Singapore s mediation movement, is widely adopted by mediation programmes and service providers. In traditional forms of mediation, the mediator is usually a person trusted and held in high regard by the disputants. He will bring his own life experiences and knowledge to bear on the dispute, which may take the form of an assessment of the merits of the positions taken by the parties or guidance on a reasonable way to settle the dispute. He may also utilise moral persuasion to resolve the disputes between the parties, even chiding them for their roles in the dispute. 79 In this regard, elements of the settlement and the evaluative models of mediation may be found in traditional forms of mediation. 80 In contrast, under modern forms of mediation where the facilitative or interest-based model is adopted, the mediator may be a perfect stranger to the parties who is assigned to mediate the dispute for a professional fee by a mediation service provider. His role is mainly in orchestrating a process for the parties to identify and prioritise their interests and generate options to satisfy the identified interests; facilitating reality testing of the parties case with objective criteria; encouraging the parties to communicate their needs and feelings to promote understanding and relationship-building; and urging the parties to consider their readiness to commit to any possible option for settlement. He generally refrains from rendering advice, or commenting on the merits of the case or the 79 Boulle and Teh, supra note 2, at p 192; Lee and Teh, supra note 6, at pp 10 11; HB Chia and SH Chu, Mediating Across Culture Are We Supplementing Our Cultural Values Through Mediation? The Alumnus, July 1999, p 20. 80 Lee and Teh, supra note 6, at p 13. 19

behaviour of the parties. He also usually does not recommend, propose or suggest possible settlement options. In other words, party autonomy and self-determination form the basis for this non-interventionist approach. The parties are deemed to know more than the mediator about the situation and the whole process is geared towards empowering them to shape the outcome of the dispute for themselves. 81 The question that was raised was whether such a model is appropriate to Singapore s Asian context. To address the question, the SMC set up a multi-disciplinary study group to study the question. A book entitled An Asian Perspective of Mediation was eventually published in 2010. 82 It contends that certain Western-oriented cultural assumptions inherent in the facilitative or interest-based model are incompatible with those operating in Singapore s Asian context. These Western-oriented assumptions include the primacy of the individual and his expectations of autonomy (which puts the disputing parties first and in the centre), the priority accorded to the interest of the individual (which gears the mediation process towards maximising and satisfying individual interests), the preference for direct and open communication in dealing with differences (which encourages open debate and candid expression of feelings), and the inclination towards an unconditional constructive approach to maintaining good relations (which is for the practical purpose of securing a good outcome or to facilitate future dealings). 83 They are not compatible with the corresponding Asian values and beliefs that have been identified as the primacy of social hierarchy and expectations to fulfil obligations in hierarchical relationships (which requires a mediator to be an individual of high social status and be at the heart of the mediation to provide authoritative guidance), priority in observing proper conduct (where satisfying and maximising individual interests may not be considered acceptable behaviour), communication and conduct gearing towards preserving harmony, relationships and face (which does not accept expressions of views and feelings that may be perceived as confrontational, preferring more subtle ways of communication), and an approach to relationships that is context-dependent (which renders the cultivation and maintenance of good relations with in-group members a matter of priority and an end unto itself, as opposed to a single preference for maintaining relationship that is 81 Id., at p 12. 82 Lee and Teh, supra note 6. 83 Id., at pp 34-40. 20

applicable to one and all). 84 When the Western-oriented assumptions are applied without modifications, tensions are created and the effectiveness of mediation diminished although as a conceptual paradigm, the facilitative or interest-based model appears universal in the objective it strives to achieve. 85 The publication suggests that it is possible to modify the facilitative or interest-based model and reap maximum utility from it by replacing the Western-oriented cultural assumptions and leveraging on appropriate aspects of the Asian context throughout the mediation process, beginning from the stage of pre-mediation, through the mediator s opening statement, parties presentations and mediator s summary, joint sessions, private sessions, the mediated outcome and closing statement, to the stage of post-mediation. 86 Examples include appointing an authority figure as a mediator, and preferably one who has equal connection to the parties, to lead the parties towards settlement with his influence and the rapport he shares with them. While exploring the interests of the parties, the mediator should not merely take into account individual interests, but should consider collective interests as well as those relating to the preservation of face, order and relationships. In this regard, the mediator may suggest possible options for settlement that saves or enhances the face value of the other party, or even suggest that the parties give face to him by making certain compromises to settle the dispute. The mediator may also suggest standards of legitimacy and what is fair. In managing the communication of the parties, the mediator may consider calling a private session earlier and using it more extensively than as prescribed by the facilitative or interest-based model, which advocates the use of joint sessions as much and as far as possible to encourage direct communication, in order to avoid any communication that may be perceived as confrontational or disrespectful. The book An Asian Perspective of Mediation seeks to present one of many possible Asian perspectives. It is proposed in the later part of this paper that ASEAN State Members should collaborate in the presentation of other perspectives on mediation with a view to improving the effectiveness and utility of mediation as a means for dispute resolution. 84 Id., at pp 54 70. 85 Id., at pp 40 42. 86 Id., at pp 71 108. 21

Collaboration and Mediation in ASEAN The spirit in which the ASEAN Founding Fathers gathered in Bangkok in 1967 to create an organisation that would help bring about a Southeast Asian region of peace, freedom and prosperity, and the spirit of the new ASEAN as symbolised by the ASEAN Charter, 87 share the same ethos as the spirit of mediation. Promoting the use of mediation is therefore a natural area for fruitful collaboration among ASEAN countries. To illustrate, article 1(1) of the ASEAN Charter provides that one of the purposes of ASEAN is to maintain and enhance peace, security and stability and further strengthen peaceoriented values in the region. 88 Article 2(2)(d) states as one of the principles ASEAN and ASEAN countries shall act in accordance with: reliance on peaceful settlement of disputes. 89 In relation to the settlement of disputes, article 22 of the ASEAN Charter provides: 90 General Principles 1. Member States shall endeavour to resolve peacefully all disputes in a timely manner through dialogue, consultation and negotiation. 2. ASEAN shall maintain and establish dispute settlement mechanisms in all fields of ASEAN cooperation. More specifically, article 23(1) of the ASEAN Charter and article 4(1) of the ASEAN Protocol on Enhanced Dispute Settlement Mechanism state that Member States which are parties to a dispute may at any time agree to... good offices, conciliation or mediation. 91 Article 2 of the Treaty of Amity and Cooperation in Southeast Asia ( the TAC ) states the settlement of differences or disputes by peaceful means to be one of the guiding fundamental principles, and further provides at article 13 that in case disputes on matters directly 87 The Roadmap for an ASEAN Community 2009-2015 at p 1, <http://www.aseansec.org/publications/roadmapaseancommunity.pdf> (accessed 30 December 2011) [Roadmap for an ASEAN Community]. 88 ASEAN Charter, <http://www.aseansec.org/publications/asean-charter.pdf> (accessed 30 December 2011). 89 Ibid. 90 Ibid. 91 Ibid.; ASEAN Protocol on Enhanced Dispute Settlement Mechanism <http://www.asean.org/16754.htm> (accessed 30 December 2011). 22

affecting [states parties] should arise, especially disputes likely to disturb regional peace and harmony, states parties shall at all times settle such disputes among themselves through friendly negotiations. 92 The TAC further provides for recommendation to parties in dispute appropriate means of settlement such as good offices, mediation, inquiry or conciliation. 93 In order to facilitate the achievement of the aforesaid goals and obligations, it will be helpful to examine the use of mediation in three contexts. First of these is the context of disputes between one ASEAN Member State and another. Under paragraph A1.3 of the Roadmap for an ASEAN Community 2009-2015 ( the Roadmap ), ASEAN Member States have pledged to establish programmes for mutual support and assistance in the development of strategies for strengthening the rule of law, judiciary systems and legal infrastructure. 94 Under paragraph B2 of the Roadmap are action plans to develop existing modes of pacific settlement of disputes and to strengthen conflict management and resolution capabilities through research, study and training. It is proposed that these programmes and action plans engage participants from senior levels in all branches of Government in ASEAN Member States. It is hoped that regular dialogues and joint training on mediation and other forms of appropriate dispute resolution will cultivate a common understanding of conflict management paradigms, and conflict resolution approaches and modalities. These senior officers who will undergo training together and who will have the opportunity to work together may then form a network of resource persons from ASEAN Member States to assist in conflict management and resolution activities as and when necessary. 95 It is submitted that it is such shared mindset and network that will ensure the sustained and effective development and implementation of ASEAN modalities for good offices, conciliation and mediation. The second context to consider is the resolution of transnational disputes, whether between businesses or individuals of ASEAN Member States or between the businesses or individuals of ASEAN Member States and nationals of non-asean countries. In order to promote 92 Treaty of Amity and Cooperation in Southeast Asia, Bali, 24 February 1976 <http://www.asean.org/1217.htm> (accessed 30 December 2011). 93 Ibid., see article 15. 94 Roadmap for an ASEAN Community, supra note 87, at para A1.3, p 8. 95 Id., at para B2, pp 13 14. 23

international trade and economic activities, investors and businesses must be given full confidence that, if and when necessary, they have access to an efficient dispute resolution system to settle their differences fairly and expeditiously. Such a system of dispute resolution may include mediation, which will allow disputes involving parties from different countries to be resolved in a private forum and in a manner that the parties are familiar with. In addition, the parties can choose mediators whom they think have the necessary expertise, and mediation procedures that they deem most appropriate. To this end, it is submitted that ASEAN Member States should consider establishing a permanent platform to share information with respect to their national policies and legal frameworks, with a view to sharing experiences and best practices, and drawing up blueprints to promote uniformity in the development plans and initiatives for the promotion and use of mediation in the courts; government departments; professional, trade and business associations; as well as the community. One of the advantages from such collaboration is that businessmen from countries outside ASEAN doing business with one ASEAN country would be comfortable with doing so in another, knowing that there are similarities in dispute resolution modalities. In this regard, it is also important for ASEAN Member States to work together to ensure that mediation as promoted and used in ASEAN adheres to international best practices and standards. The result will include improved business confidence in ASEAN and decreased expected costs of dispute resolution, consequently increasing the competitiveness of ASEAN as an economic region. Third, disputes may also arise between citizens of each ASEAN Member State. In addition to sharing experiences and best practices at a macro level as proposed above, it is proposed that ASEAN Member States collaborate to initiate or advance their respective national mediation movement. It is envisaged that a national mediation movement will cement mediation as an effective and viable dispute resolution option for the general public, through the development and promotion of appropriate mediation processes, procedures and rules, mediator ethics and codes of conduct, and case management techniques. In this regard, there is room for more collaboration between ASEAN Member States in the provision of capacity building programmes for mediator training and accreditation, as well as the training of trainers of mediation. The aim is to create a pool of highly skilled and committed practising mediators who can resolve disputes quickly, inexpensively and amicably, thereby contributing to the increase in productivity and the creation of harmonious living and working conditions in each 24

of the ASEAN Member States. These mediators will not only facilitate peacemaking in their spheres of influence, but champion the use of mediation in their respective countries, as well as spur the mediation movement forward regionally. In relation to the provision of a system of mediation for the resolution of transnational disputes, and creating or advancing the national mediation movement of ASEAN Member States, a possible initial avenue for collaboration is the Asian Mediation Association ( AMA ), of which five mediation centres in ASEAN are already members. AMA was established on 17 August 2007 at the initiation of the SMC. It started with a membership of mediation centres from five countries to, inter alia, create a non-political framework for, and to facilitate, regional co-operation in the provision of conflict management and resolution services. AMA currently has nine members, comprising the Hong Kong Mediation Centre (Founding Member); the Indonesian Mediation Centre (Founding Member); the Malaysian Mediation Centre (Founding Member); the Philippine Mediation Centre (Founding Member); the Singapore Mediation Centre (Founding Member); the Delhi Mediation Centre (Ordinary Member); the Thai Mediation Centre (Ordinary Member); the Indian Institute of Arbitration and Mediation (Ordinary Member); and the Ministry of Labour, Industrial Relations and Employment of Fiji (Mediation Unit) (Associate Member). AMA s objectives and principles and its membership, structure, and decision-making mechanism are set out in its Charter. 96 Other than to facilitate regional co-operation in the management and resolution of cross-border disputes, the other objectives of AMA may be stated as follows: (a) to provide access to the best regional expertise for conflict management and resolution; (b) to share resources, best practices and local knowledge of different jurisdictions; (c) to establish a system of referral; (d) to set up platforms and jointly organise international conferences and training events to promote and advance mediation and ADR; (e) to cooperate in research and development to advance ADR and develop a culturally appropriate model of conflict management and resolution for Asia; and (f) to promote close relations amongst mediation centres in the region. In line with these objectives, a Protocol for the Referral of Disputes was drafted, under which AMA Members may refer to another AMA Member a dispute which it deems itself not to be in the best position to mediate, or which it 96 See <http://www.asianmediationassociation.org/pdf/amacharter.pdf> (accessed 30 December 2011). 25

deems may be more appropriately mediated at another mediation centre. 97 The Protocol also stipulates a standard process by which the referral is to take place. To-date, there have been two AMA Conferences, 98 where informative plenary and discussion sessions were held. Finally, as alluded to earlier, the formulation of a culturally appropriate model of mediation is very important to its efficacy and the level at which it is accepted as a mode of dispute resolution. The book An Asian Perspective of Mediation presents but one perspective of mediation in the Asian context of Singapore in the hope of improving the effectiveness and utility of the mediation as a means for dispute resolution. It is submitted that ASEAN countries should share in their best practices and band together to formulate one or more ASEAN perspectives of mediation. Such collaboration will improve the mediation processes in the respective ASEAN countries, and contribute to the advancement of the study and use of mediation in the region as a whole. Further, the creation of one or more ASEAN perspectives of mediation is consistent with building an ASEAN identity one comprising our collective personality, norms, values and beliefs as well as aspirations as one ASEAN community. 99 Conclusion As may be seen from the above discussion, the mediation movement in Singapore had the support of the Government and the Judiciary right from the start. The unequivocal endorsement has been crucial in giving mediation in Singapore the requisite momentum, and setting the stage for its progress and achievements. But beyond the hard facts and statistics are numerous untold stories of people who are saved by mediation from the nightmare of looming courtroom battles and who have had their relationships mended. That is one of the reasons for there to be a community of mediators who mediates for free or who are paid fees that are a small fraction of their usual professional charges; a community of mediators who 97 See <http://www.asianmediationassociation.org/pdf/smcamaprotocolreferral.pdf> (accessed 30 December 2011). 98 The first conference was held in Singapore from 4 5 June 2009 with the theme Mediation diversity Asian and beyond, see <http://www.asianmediationassociation.org/resources.html> for the conference materials (accessed 30 December 2011). The second centered on the theme Rediscovering Mediation in the 21 st Century and was held in Malaysia from 24 25 February 2011, see the 2 nd AMA Conference Flyer, <http://www.asianmediationassociation.org/pdf/20110224%202nd%20ama%20conference%20flyer.pdf> (accessed 30 December 2011). 99 Roadmap for an ASEAN Community, supra note 87, at para 42, p 87. 26

mediates for the sheer satisfaction they find in peacemaking and re-connecting people. It is hoped that collaboration within ASEAN through the suggested and other ways will multiply manifold the benefits of mediation that Singapore has experienced throughout the region. 27