Legal Framework for Mediation PDF

00:15 Thank you for coming for this module on legal framework for mediation. Rules! Without them we live with the animals, says John Wick in Chapter 4. And same for mediation. There is a legal framework that governs the whole structure of mediation. For our short course today, I will be dealing wit...

00:15 Thank you for coming for this module on legal framework for mediation. Rules! Without them we live with the animals, says John Wick in Chapter 4. And same for mediation. There is a legal framework that governs the whole structure of mediation. For our short course today, I will be dealing with the following statutes and the following basis of rules. 00:42 First will be the legal sources and we will explore that a little bit. We will then consider the legal basis underpinning mediation. We will have a look at the Mediation Act 2017. We will see what are the rules dealing with the conduct of lawyers. And finally we will look at the conduct of parties and the all important cost consequences if the rules dealing with mediation are not followed. 01:13 legal sources. In Singapore, we know that the primary source of all law comes from the statutes, the statutes followed by the subsidiary legislation, followed by practice directions which are issued by the courts and case law. And of course, there will be the commentaries by parties and sort of academics that... 01:42 courts can take into consideration. For our first level, we are looking at what are the various statutes governing mediation. There are a few. Of course, top would be the Mediation Act 2017, because it is dealing with mediation. But well before the Mediation Act itself, there\'s a whole host of statutes that deals with mediation. In fact, 02:10 For example, there is the Community Mediation Centers Act 1997. There\'s the Family Justice Court Act 2014. There\'s the Supreme Court of Judicature Act 1969. There\'s the Protection from Harassment Act 2014. There\'s the Legal Profession Act 1966. And also the Women\'s Charter 1961. So you will see, actually, 02:39 The rules governing mediation is not something that is very recent. It is actually something that is founded in our earliest set of laws. What has happened, of course, in recent time is that mediation has gained prominence. Mediation has gained traction. And that\'s why it is important for you, as the mediation advocate, to be fully aware of all these legal sources. Because all of these legal sources 03:06 has a bearing on you as the mediation advocate. And that\'s very important. We are all lawyers, so we need to be mindful of all these rules. In respect of subsidiary legislation, again, several that you may be familiar with, but for me to let me just highlight some. There\'s of course the Mediation Rules 2017, there\'s the Family Justice Rules 2014, there\'s the ever-loved Rules of Court, there\'s the Small Claims Tribunal Rules. 03:37 There is the legal professional conduct rules, that 2015. Finally, there\'s the Women\'s Charter, Mediation and Counseling Prescribed Persons Rules 2011. So many rules, so many legislations, so many statutory legislation. We need to be, we need to remember this. Okay? Do we have to memorize it? Of course not. But we need to be alive that these rules exist and we, as advocates, will go and check it up. 04:07 Okay, where is relevant? In respect of practice directions, we know that Supreme Court has a set of practice directions. The state court has it, the family court has it, and the Singapore International Commercial Court also has it. We know these practice directions are updated regularly, and it is for you and for me as advocates to be updated all the time. It\'s part of our CPD requirements. Case law. You would have thought 04:37 Really? Is there case law dealing with mediation? Of course. There\'s a whole host. And your reading materials will show you some. But the end result of all these cases is the following takeaway points. One, mediation agreements that has been reached at mediation can be recorded in the order of court, the ultimate level. It can be. Second level, cost. 05:07 Mediation or the lack thereof can result in cost orders against or for a party. We will come back to this later, but I want to flag this out early. For example, in the case of LegisPoint LLC versus TehChun I, the cost of mediation work can be taken into account when determining party-party costs. So the courts recognize that mediation is a very essential part of the legal process nowadays. 05:37 So please bear this in mind. Whatever you do relating to mediation is important. Let\'s talk about mediation. How do parties go for mediation? Is it by law that they are prescribed and they are dictated to go for mediation? Or is it voluntary, as we\'ve been taught, that parties must agree? So the real answer would be, of course, it can be a combination. 06:07 for mediation is what is called the mediation agreement. Parties must agree to mediate, right? The going for mediation, parties can agree. And in fact, this is the most portion of it, right? Sometimes statutes or legislation may prescribe mediation as the first step to be taken. And that\'s what we need to bear in mind as well. Last but not least, of course, you will find that the courts or some authorized bodies do give directions to ask parties to try. 06:38 Because mediation, the mindset of mediation is the new ethos. Try to settle before you go to court. But these three methods that I\'ve just highlighted is to empower and to allow parties to have a variety of ways to go for mediation. So that is something that we need to bear in mind. Just to recap, you can go for mediation by agreement, by statute requirements, or by court\'s direction. 07:08 Right? Now, for agreement, some of the questions that sometimes as advocates we are asked, can you enforce this sort of agreement? Can you force parties to mediate? The short answer would be yes. You can force party to comply with their contractual obligations to go for mediation. You can\'t force parties to settle, but you can require them to adhere to their contractual obligations. 07:38 If you agreed to go for mediation first, then you need to follow if parties insist. There are several cases on this. Cable and wireless PLC versus IBM United Kingdoms is one. Hartronics Corporation is another. And you bear this in mind. Agreement, right? Agreement usually is party A, party B. Sometimes you will find that there are cascading agreements or what\'s called multi- 08:08 Here, dispute resolution agreements, where you have top level, middle level, low level, all going for being required to go for mediation under a project. We see this very often in construction projects, where if the main contractor is, the developer has the dispute with the main contractor, the other lower ones could be required to join in the mediation. 08:34 Now this can be done by way of agreement, which is usually the case, because it\'s just cost effective to have one mediator solve all the underlying issues. Or you could have separate mediations, depending on the nature of each individual case. So that is again something to bear in mind. You can go for mediation by agreement, and it can be multi-party. Let\'s talk about going to mediation by statute. So there are several acts, there are several statutes, that 09:04 deal with mediation and the power or the requirement to go for mediation first. We see this often. First, of course, would be our building level statutes, right? The Building Maintenance and Strata Management Act, for example, Section 89, you can be required to go for mediation when you go before the strata title board. The Industrial Relation Act, 1960, can also require you to go for mediation. Employment claims, right? Medical registration acts. 09:33 Criminal Procedure Act code, all of this can require you to go for mediation. And it becomes part of our culture, part of our ethos, that if you\'re on this line, you must tell your clients to be open for mediation. And again, we will come back to this concept of telling the clients that you need to go for mediation. 09:55 Last but not least, remember I talked about the court\'s direction? So the rules of court, the inherent jurisdiction of the court, you\'ll find that the court sometimes intervene and suggest to parties, are you sure you want to go forward? Why don\'t you go for mediation first? And you then consider when can this sort of direction be given? It can be given at any time. Many of us have seen on the eve of trial or after the first date, the court suggests, you know, why don\'t you take off, try for mediation? 10:25 And they do. Parties go on a very quick mediation module the next day. They try to resolve it within one day. And you will find, to your surprise sometimes, it gets settled. Even if parties are all ready for trial, even if parties were in the midst of battle, you can still go for mediation. And that\'s the key. Mediation allows parties that off-ramp, that off-road, that allows them to get off. And why do they do so? 10:53 Ultimately, it will be whether you\'re going to win, whether your witnesses are strong, whether costs that will flow from that. A last example would be, for example, like data protection. Also has this requirement where the court can require parties to try to settle by mediation. 11:11 Rules of court, right? The all-encompassing and all-governing rules of court 2021. Okay? And maybe I just highlight this specifically for you all. Because the court have this power. Let me read off. I quote, order five, rule three. The court may order the parties to attempt to resolve the dispute by amicable resolution, right? Rule two, indecide rule three to, sorry. 11:38 In deciding whether to exercise its powers under paragraph 1, the court must have regard to the ideals and other relevant circumstances, including whether the parties have refused to attempt to resolve the dispute by amicable resolution. Without affecting the court\'s power, if the party informs the court that the party does not wish to attempt to resolve the dispute by amicable resolution, the court may order the parties to submit a sealed document setting out the party\'s reasons for such refusal. 12:07 the sealed document will only be opened by the court after the merits of the action are determined. Right? And then, and then, the reasons of why you didn\'t want to go for mediation will be taken into account when the court is determining costs. 12:25 And so we will come back to this later. The court has powers to require you to attempt. If you don\'t want to attempt, you need to have a very good excuse. What is a very good excuse is uncertain, to be very frank, right? It may well be that you have attempted before and failed. You have attempted multiple times, but I will say this, if the court at the time that it orders you to attempt, perhaps the prudent course is to 12:54 Try one more time because you never know what can happen. You never know that the parties at that point in time may be ready to mediate or may be ready to settle. So long story short, don\'t have a closed mind whenever it comes to mediation. Whenever somebody suggests mediation, it\'s an opportunity. It\'s an opportunity for you to try to save costs for your clients. 13:23 It\'s an opportunity for you to do good, because you can then resolve a matter without the need for judicial time to determine the right and the wrong. Because we know there\'s no guarantee success in any matter, right? 13:38 Now, let me talk about another topic, which was of relevance. I\'m going to talk about this new, relatively new statute called the Mediation Act of 2017. So what is mediation? And this is the nature of mediation. So we try to define it. And the Mediation Act 2017, Section 3 defines mediation as follows. It\'s a process comprising of one or more sessions. 14:07 in which one or more mediators will assist parties to a dispute to do all or any of the following with a view to facilitate the resolution of the whole or part of the dispute. Identifying the issues, exploring and generating options, communicating with others and trying to voluntarily reach an agreement. That\'s mediation. 14:29 You, as the mediation advocate, is going to be part of this process. You will be the one trying to identify the issues in conjunction with the mediator. You will, together with the mediator, try to explore and generate options. We\'ve learned all of this, right? You will help with the communication between yourself and the parties, right? So that they can try and really try to reach an agreement. And that is ultimately the goal. 14:58 Now, does the Act apply to everybody, everywhere, all the time? Well, the Mediation Act applies to mediations conducted wholly or partly in Singapore, or where the agreement provides this for it to be for the laws of Singapore to apply, or for the Mediation Act to specifically apply. It is not applicable when the mediation or any other process is conducted under any other written law, or any other\... 15:28 directions by other bodies. Just as a quick question for you to think about. The mediation is conducted wholly or partly in Singapore. How do you have a mediation that is conducted partly in Singapore and partly overseas? In today\'s world, there is this concept known as hybrid mediation, where parties, some in Singapore, some overseas, will participate in the mediation. When you are 15:57 holding yourself as a mediation advocate in such a situation, you will find that you will have to have more skill sets. You will have to be mindful of speaking through the virtual platform, whether it\'s MS Teams or Zoom or other virtual platforms. And you then need to connect with the parties. Your skill sets to try to bridge the, or demonstrate the seven elements as you would have learned earlier, would come into play, right? 16:27 the interest, the option generating, the relationship building, the testing of the BATNA and so on and so forth. All this will have to be done by you, with you, together with the client. 16:43 It is also possible for there to be a stay of court proceedings pending mediation. So this is what happens, and we see it often. The court sometimes will hold on to a case conference or have longer directions to allow parties to go for mediation. Do not be shy to inform the court that parties want to attempt mediation. And you will find that the courts are very pro-mediation, because it gives you all an opportunity to settle the matters amicably. 17:13 And the Mediation Act actually aids parties in trying to settle. How? Simply. All these earlier concepts about without prejudice, confidentiality, and forcibility used to be just in the realms of agreement. But today, in recognition of its importance, we now have all this codified. The concept of parties not able to communicate what takes place in the mediation. 17:42 is now codified under the Mediation Act. The without prejudice nature also codified. So the landscape, the framework in which mediation is being encouraged is being laid. We, as advocates, need to explain these tools, these parameters, this structure to the clients so that they have a better buy-in. That is what we, as mediation advocates, need to do as well. 18:13 Now, I want to talk to you about the next level, which is settlement agreements and its importance. One of the key objectives of the Mediation Act was to be able to have settlement agreements enforceable across various jurisdictions, especially in family matters or international trade. If you settle something here\... 18:42 Will you be able to enforce it somewhere else? So the Mediation Act gives power to those countries that ratify to enforce the mediation agreement in various jurisdictions, quite similar to the Arbitration Act and the New York Convention. So we now have the Singapore Convention that deals with this same principle. Again, the takeaway for you must be this is something for you to use. 19:11 to encourage your clients to adopt mediation, to encourage your clients to be able to settle the matter with full confidence that it can be enforced. Because the flip side to being enforceable is that people will voluntarily not try to violate those agreements. If you think you can get away with it, you will, or you could. But today, with this act in place, you come with the mindset that if you settle, it\'s gonna be binding. 19:40 and people will voluntarily abide by it most of the time, unless something else, a supervening event happens. Again, these are things that we as advocates need to encourage our clients and to explain to other people. 19:56 Now, the benefits of mediation I don\'t need to go through with you all. We know what the benefits are. I would now like to discuss and share with you some thoughts regarding the conduct of lawyers as mediation advocates. Some of these that I will tell you or talk to you about, you may sound obvious to you, right? Of course that\'s the way it is, but you will realize that in the whole scheme of things, in the whole spectrum of lawyering, 20:26 There are some who know, there are some who don\'t know. So it\'s good to always refresh our memories and to try to relive what we say. There are several duties you\'ll find. And first and foremost will be the easiest and the most obvious of all. Be respectful and courteous and act in good faith. Right? As lawyers. Respectful, courteous and in good faith. Sounds very easy, right? 20:55 How many of you have written nasty letters to your counterparts? Right? How many of you, right? Or how many of us, rather, because I\'m also guilty of it sometimes, even though it\'s very little, right? Sometimes we write letters which are more forceful than is needed. Why? Because we are trying to protect and advance the interests of the clients. But let\'s always remember, we are a noble profession. 21:25 The default position is everyone, no matter whether they have the same view, differing view, we are all here to try to advance justice. We are part of the judicial system. Just as we are respectful and courteous to the courts, we should be respectful and courteous to each other. It makes life much easier. Of course, we need to advance and act in the best interest of our clients. No need to say. But we can do it. 21:54 together with being respectful. Right? And the next level, and I will talk about this, is we as advocates need to always consider when an ADR process is needed. Okay? That should be the mindset. Do I need to go to court all the time for every matter? If I don\'t, then it benefits your clients. If you can suggest to your clients, there\'s a better way to solve the problem rather than going to court. 22:24 We all know, do all our clients love to go to court? Are all our clients yearning to spend money? They may say it, but the truth is, of course not. But so is our duty, our duty, our obligation to try to always evaluate and use various ADR processes to advance the client\'s interest. And this includes advising on mediation. Because mediation is now\... 22:53 the in thing, right? It has, in theory, all the benefits with no drawbacks. So why not? 23:04 Right? So let\'s recap a bit. Let\'s be respectful, courteous, and to act in good faith. Is it I say one? No, it\'s not I say one. It\'s the professional conduct rules, rule 8A. Right? Duty to advance interest, rule 5-2. Right? Duty to evaluate ADR processes, rule 17-2E. Right? So these are the rules that when we tell the clients, 23:33 we are actually complying with our own professional obligations. If you don\'t tell the clients, you would, in theory, be in breach of these obligations. And that\'s not good. So we need to advance this. Remember the rules, and they assist us to help justify what we do. Now, let me draw one particular rule to you. And that is the Supreme Court Directions rule. 24:02 Let\'s say this. It is the professional duty of advocates and solicitors to advise their clients to consider ADR processes as well as to give their clients sufficient information about the different ways in which their disputes may be resolved using appropriate form of ADR. In this connection, the attention of advocates is drawn to Rule 17.2e of the Legal Professional Professional Conduct Rule. So let me pause here. 24:33 giving a direction. We have that duty. Does it matter that you think it\'s useless? Does it matter you think it will be fruitless? The short version is it doesn\'t matter. We have that duty. It\'s a continuing obligation. And you never know. Today or yesterday, they may not be willing to settle. Today, they may not. But tomorrow, they may. Right? 25:00 There\'s a whole range of reasons why people change their minds and why positions shift. We, as advocates, need to be mindful of this and continually live the ethos that ADL is better than going to fight. And you only fight if there\'s no other choice. 25:18 Right? Now, practice directions talks about this ADR and it applies to all civil and all civil claims. So it applies. Family court justice, family justice rules also applies. Okay? I give you one case, and that\'s for you to read up and you\'ve probably seen your notes. That\'s the case of Jonathan Locke versus Jesslyn Goh. And the court said this, the role of counsel in pursuing their client\'s interest in a court of law. 25:48 where the paltry monetary claims were involved was to exercise the degree and responsibility expected of an officer of court and to advise their clients to settle disputes with minimum time and minimum cost. Let\'s take a minute to reflect on this. The role of counsel is to advise the clients to exercise some responsibility when the claims are small. If you have\... 26:18 a \$2,000 claim, a \$20,000 claim, and you want to bring it on appeal and go for trial, is it going to be cost effective? Rule 101. The clients may say to you, I want. Do I say, sure, since you want, let\'s do. May all have no choice, right? But we have a duty to make sure that we have advised the clients. We need to put all this in writing, because one day\... 26:46 If things go south for you, people may say, I was not told. Then what do you do as mediation advocates, right? So we need to properly advise. Clients need to be informed and they need to make a considered decision, right? And sometimes we have to do it two or three times to satisfy this obligation. 27:08 Right? Now, let\'s talk about why we have all these rules and what can the court do about it. Right? At the end of the day, the court regulates the conduct of lawyers, the court regulates the conduct of proceedings. Right? One of the greatest tools that they have is this question of cost. Right? What is the\... 27:36 appropriate party and party costs to be ordered. On the one extreme, you will find that costs can be ordered against solicitors personally. You have seen this, you have read it. You may think it shouldn\'t, it will never apply to me, but it could. On the one hand, it can be cost is ordered against you personally, not the client. Next, there are the situations whereby 28:06 The winning party also has to bear the cost of the losing party. We have seen how these rules work. If the other side makes an offer to settle or makes a proposal which you didn\'t consider, the winning party could be made to pay the cost of the losing party on a higher scale. What is the effect of such a ruling? Quite apart from it devastating your clients, right, mentally, right? You would have to reflect yourself. 28:34 What did you do wrong? Or what did you do such that the court thought it fit that the usual rule of cost following the event should not apply? It does not do you well. So this is something that we have to be very mindful all the time, every time, anytime. Next, of course, there\'s each party bears own cost. Again, a possibility. Or no orders has to cost. 29:04 Or finally, of course, it is cost follows the event. So there\'s a spectrum of what the cost orders can be. Right? Rule five, order five, rule one, rules of court 2021. A party to a proceeding may consider making an offer. Rule two, a party is to make an offer before commencement unless the party has reasonable grounds not to do so. Right? An offer for a makeable resolution of this order means making an offer to settle. 29:34 the action or appeal or making offer other than by litigation, whether in hold or in part. Order five rule one. So let\'s take a minute. The mindset now is not just after you comment, then you think about offering to settle. The mindset now is before you start, think about settling. Look before you jump. Look before you cross the road. 30:05 Save costs if you can before proceeding starts. After proceeding starts, also this obligation continues. Do you want to continue? Do you want to appeal? These are the costs mentality that you must have. Why? Because if you don\'t settle, when you could have settled, it could come back to bite you. 30:31 Right? Order 21, rule 2, 2A. 30:39 This is the motherhood statement here, right? In exercising its power to fix or assess cost, the court must have regard to all relevant circumstances, including efforts made by the parties at a makeable resolution. Okay? The parties that do not adhere to that duty may face cost consequences, which we saw just earlier. So let me repeat, the court will have regard to all relevant circumstances. Now, let me be the first to tell you, 31:09 in an adversarial system, who\'s going to point out your mistakes to the court? You think you will? No, it won\'t be you, it will be your opponent. Somebody will point out whether you had complied with your rules or not. Somebody will say, Your Honour, they didn\'t consider mediation. We wanted to settle earlier. We were pro-mediation. But the other side didn\'t want. 31:38 When the court is faced with these sort of arguments, you need to think, how will the court look at it? Will it look for you in your favor or against you? So fellow colleagues in the profession, we ask this question. There is only do or do not. There is no try. You will do what we have discussed, 32:07 dispute resolution. Don\'t say I\'ll try. No, do or do not. There is no try. Thank you very much for your attention.