Singapore Mediation Act 2017, PDF

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1  3 LEGAL FRAMEWORK mediation.com.sg mediation.com.sg Legal Framework A. Legal Sources B. Basis of...

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1  3 LEGAL FRAMEWORK mediation.com.sg mediation.com.sg Legal Framework A. Legal Sources B. Basis of Mediation C. Mediation Act 2017 D. Conduct of Lawyers E. Conduct of Parties and Costs Consequences 3 A. Legal Sources  Statutes  Subsidiary Legislation  Practice Directions  Case Law 4 A. Legal Sources  Statutes Mediation Act 2017 Community Mediation Centres Act 1997 Family Justice Court Act 2014 Supreme Court of Judicature Act 1969 Protection from Harassment Act 2014 Legal Profession Act 1966 Women’s Charter 1961 5 A. Legal Sources  Subsidiary Legislation Mediation Rules 2017 Family Justice Rules 2014 Rules of Court Small Claims Tribunals Rules Legal Profession (Professional Conduct) Rules 2015 Women’s Charter (Mediation and Counselling) (Prescribed Persons) Rules 2011 6 A. Legal Sources  Practice Directions Supreme Court State Courts Family Justice Court Singapore International Commercial Court 7 A. Legal Sources  Case Law UJN v UJO SGFC 16: recording of settlement agreement reached at mediation as an order of court Legis Point LLC v Tay Choon Ai SLR 1269: costs of mediation work can be taken into account when determining party-and-party costs Sita Jaswant Kaur v Surindar Singh s/o Jaswant Singh 4 SLR 838: binding nature of an agreement made after mediation depends on the usual contractual principles and whether there was an intention to enter into a legal binding settlement. 8 B. Basis of Mediation  By Agreement  By Statutes or Subsidiary Legislation  By Court’s / Authorised Body’s Directions 9 B. Basis of Mediation  By Agreement Mediation Agreement  Cable & Wireless Plc v IBM United Kingdom Ltd EWHC 2059 (Comm): stay of court proceedings granted pending ADR proceedings Multi-tier DR agreement  Heartronics Corporation v EPI Life Pte Ltd and others SGHCR 17 at The Court held that the multi-tier dispute resolution clauses were regarded as a unitary dispute resolution mechanism. The defendant’s repudiatory breaches of the mediation portion of the ADR clauses had rendered the arbitration portion of the clauses inoperative. Hence, the defendant was unable to rely on the arbitration agreement. Accordingly, the Court dismissed the defendant’s application to stay in the court proceedings. 10 B. Basis of Mediation  By Statutes  Examples: Building Maintenance and Strata Management Act 2004 s 89(2) Industrial Relations Act 1960, s 30G Employment Claims Act 2016, s 3(1) Supreme Court of Judicature Act 1969, First Schedule at Medical Registration Act 1997, s 47 Land Titles (Strata) Act 1967 s 84E(6A)(a) Criminal Procedure Code 2010, s 16(1)(c) 11 B. Basis of Mediation  By Court’s / Authorised Body’s Directions  Examples: Rules of Court (O. 5, r. 3) Personal Data Protection Act 2012, s 48G 12 B. Basis of Mediation  Rules of Court 2021 (O. 5, r. 3) Power of Court (1) The Court may order the parties to attempt to resolve the dispute by amicable resolution. (2) In deciding whether to exercise its power under paragraph (1), the Court must have regard to the Ideals and all other relevant circumstances, including whether any of the parties have refused to attempt to resolve the dispute by amicable resolution. (3) Without affecting the Court’s power under paragraph (1), if a party informs the Court that the party does not wish to attempt to resolve the dispute by amicable resolution, the Court may order the party to submit a sealed document setting out the party’s reasons for such refusal. (4) The sealed document will only be opened by the Court after the determination of the merits of the action or appeal and its contents may be referred to on any issue of costs. (5) The Court may suggest solutions for the amicable resolution of the dispute to the parties at any time as the Court thinks fit. 13 C. Mediation Act 2017  Mediation as defined by the Act  Applicability of Mediation Act  Stay of Court Proceedings  Confidentiality  Without Prejudice Privilege 14 C. Mediation Act 2017  Mediation as defined by Mediation Act 2017, s 3: A process comprising of one or more sessions in which one or more mediators will assist the 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: (a) Identify the issues in dispute; (b) Explore and generate options; (c) Communicate with one another; (d) Voluntarily reach an agreement. 15 C. Mediation Act 2017  Applicability of Mediation Act, Mediation Act 2017 s 6 Apply when:  the mediation is wholly or partly conducted in Singapore; OR  the agreement provides that this Act or the law of Singapore is to apply to the mediation. Not applicable when:  any mediation or conciliation proceeding, process, scheme or framework conducted under, or provided by or under, any written law;  unless otherwise provided in an order under subsection (3), any mediation conducted by, or under a direction by, a court; … 16 C. Mediation Act 2017  Stay of Court Proceedings – Mediation Act 2017 s 8 (1) Where any party to a mediation agreement institutes any proceedings before a court against any other party to that agreement in respect of any matter which is the subject of that agreement, any party to that agreement may apply to that court to stay the proceedings so far as the proceedings relate to that matter. (2) The court hearing the application may make an order, upon such terms or conditions as the court thinks fit, staying the proceedings so far as the proceedings relate to the matter. 17 C. Mediation Act 2017  Confidentiality Mediation Act 2017  9. —(1) Subject to subsections (2) and (3), a person must not disclose any mediation communication relating to a mediation to any third party to the mediation.  Exceptions, see ss 9(2) and 9(3) of Mediation Act 18 C. Mediation Act 2017  Confidentiality Definition of “mediation communication”, see s 1:  “mediation communication”, in relation to a mediation, means — (a) anything said or done; (b) any document prepared; or (c) any information provided, for the purpose of or in the course of the mediation, and includes a mediation agreement or mediated settlement agreement;  c.f. common law scope of confidentiality 19 C. Mediation Act 2017  Without Prejudice Privilege Mediation Act, s 10. A mediation communication is not to be admitted in any evidence in any court, arbitral or disciplinary proceedings except with the leave of a court or an arbitral tribunal under section 11. 20 C. Mediation Act 2017  Without Prejudice Privilege Definition of “mediation communication”, see s 1:  “mediation communication”, in relation to a mediation, means — (a) anything said or done; (b) any document prepared; or (c) any information provided,  for the purposes of or in the course of the mediation, and includes a mediation agreement or mediated settlement agreement; 21 C. Mediation Act 2017  Without Prejudice Privilege Cases:  Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd 4 SLR(R) 807 at Even though a statement is not expressly made ‘without prejudice’ the law holds that it is made without prejudice because it was made in the course of negotiations to settle a dispute QUARE: Is mediation a course of negotiation to settle a dispute? See Mediation Act, s 4. 22 C. Mediation Act 2017  Without Prejudice Privilege Cases:  Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd 3 SLR(R) 40 Waiver of waiver privilege by producing the document in the court C.f. Krishna Kumaran s/o K Ramakrishnan v Kuppusamy s/o Ramakrishnan 4 SLR 232 See S 3 of the Mediation Act 2017 23 C. Mediation Act 2017  Mediated Settlement Agreement Drafting Mediation Settlement Agreement  Contract formation: Offer Acceptance, Consideration, Certainty, Intention to enter legal relationship, etc. 24 C. Mediation Act 2017  Mediated Settlement Agreement Checklist for Settlement Agreement  Party to the agreement / third parties  The scope of claim being settled  Formality  Disposal of court proceedings  Warranties  Conditional or unconditional settlement?  Default provisions  Payment arrangement/tax/legal costs  Confidentiality  Governing law and jurisdiction  Capacity and authority to settle 25 C. Mediation Act 2017  Mediated Settlement Agreement Subject to Contract doctrines  Tiong Swee Eng v Yeo Khee Siang 3 SLR 1141 at to A settlement agreement was simply a species of contract to which the general legal principles laid down in Lim Koon Park v Yap Jin Meng Bryan 4 SLR 150 in relation to an actionable misrepresentation apply. NOTE: Exceptions on confidentiality and without prejudice privilege, s 9(2) and (3) of Mediation Act 2017 26 C. Mediation Act 2017  Settlement Agreement recorded as consent Order Requirement – Mediation Act 2017, s 12: (1) Where a mediated settlement agreement has been made in a mediation in relation to a dispute for which no proceedings have been commenced in a court, any party to the agreement may, with the consent of all the other parties to that agreement, apply to a court to record the agreement as an order of court. (2) The application must be made within -- (a) 8 weeks after the mediated settlement agreement is made; or (b) such longer period as the court may allow. 27 C. Mediation Act 2017  Settlement Agreement recorded as consent Order Formality – Mediation Act 2017, s 12 read with Mediation Rules 2017, s 2 (a) the name of each party to the mediated settlement agreement; (b) the name of each mediator conducting the mediation; (c) the name of the mediation service provider (if any) administering the mediation; (d) the name of each certification scheme (if any) under which each mediator conducting the mediation is certified; (e) the date on which the mediated settlement agreement is made; (f) the terms of the settlement reached by the parties at the mediation. 28 C. Mediation Act 2017  Settlement Agreement recorded as consent Order Court’s Discretion – Mediation Act 2017, ss 12(3) and (4) (3) Subject to subsection (4), a court may record a mediated settlement agreement as an order of court if — (a) the mediation is administered by a designated mediation service provider or conducted by a certified mediator; (b) the agreement is in writing and signed by or on behalf of all the parties to the agreement; and (c) the agreement contains such information as may be prescribed. 29 C. Mediation Act 2017  Settlement Agreement recorded as consent Order Court’s Discretion – continued (4) The court may refuse to record a mediated settlement agreement as an order of court if — (a) the agreement is void or voidable because of incapacity, fraud, misrepresentation, duress, coercion, mistake or any other ground for invalidating a contract; (b) the subject matter of the agreement is not capable of settlement; (c) any term of the agreement is not capable of enforcement as an order of court; (d) where the subject matter of the dispute to which the agreement relates involves the welfare or custody of a child, one or more of the terms of the agreement is not in the best interest of the child; or (e) the recording of the agreement as an order of court is contrary to public policy. 30 C. Mediation Act 2017  Mediated Settlement Agreement in Family law UJN v UJO SGFC 16  That is not to say the Settlement Agreement should be ignored it its entirety; rather, it is for the Court hearing the ancillary matters to consider the Settlement Agreement, whether it is binding, and if so, to what extent it is should be given effect. Consistent with pre-mediation decisions, see Sita Jaswant Kaur v Surindar Singh s/o Jaswant Singh 4 SLR 838 at and 31 C. Mediation Act 2017  Enforcement of Settlement Agreement As a Court Order  Enforcement of Court Order/Arbitral Award  Mediation Act 2017, s 12(5) (5) A mediated settlement agreement that is recorded under this section as an order of court may be enforced in the same manner as a judgment given or an order made by a court. As a Contract  Recourses for Breach / Repudiation 32 D. Conduct of Lawyers  Duty to be respectful, courteous and to act in good faith  Duty to advance and act in client’s best interests  Duty to evaluate the use of ADR processes  Duty to advise on mediation 33 D. Conduct of Lawyers  Duty to be respectful, courteous and to act in good faith PCR 2015, Rule 8A – Conduct of ADR process  Duty to advance and act in client’s best interests PCR 2015, Rules 5(2)(j), 17(1)  Duty to evaluate the use of ADR processes PCR 2015, Rules 17(2)(e) 34 D. Conduct of Lawyers  Duty to advise on mediation Supreme Court Practice Directions 53: (2) It is the professional duty of advocates and solicitors to advise their clients to consider ADR as well as to give their clients sufficient information about the different ways in which their disputes may be resolved using an appropriate form of ADR. In this connection, the attention of the advocates and solicitors is drawn to Rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015. (6) The attention of advocates and solicitors as well as all the parties is drawn to Order 21, Rule 4(c) of the Rules of Court 2021. Advocates and solicitors should advise their clients on potential adverse costs orders for any unreasonable refusal to engage in ADR. 35 D. Conduct of Lawyers  Duty to advise on mediation Supreme Court Practice Directions 2021  PD 53: Duty of advocates and solicitors to advise their clients to consider ADR  Appendix D: Guideline for advocates and solicitors advising clients about ADR State Courts Practice Directions 2021  PD 34(5): A presumption of ADR applies to all civil claims filed in the State Courts.  PD 34(8): Where the court is of the view that an ADR process is suitable and the party/parties have opted out of the ADR process for unsatisfactory reasons, this conduct may be taken into account by the Court when making subsequent costs orders. Family Justice Court Practice Directions  11(1A): Mediation and/or counselling directed by court 36 D. Conduct of Lawyers  Duty to advise on mediation Observation in Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline SGCA 56 at :  The role of counsel in pursuing their clients’ interests in a court of law where paltry monetary claims were involved was to exercise the degree of responsibility expected of an officer of the court and advise their clients to settle the dispute with minimum fuss and minimum cost. 37 D. Conduct of Lawyers  Duty to advise on mediation Other Cases:  Maxx Engineering v PQ Builders Pte Ltd SGHC 71: Where the High Court dealt with the issue of whether a party can be compelled, through the remedy of specific performance, to refer a dispute to mediation in line with their contractual obligations. The parties’ choice to refer their dispute to mediation should be respected. 38 E. Conduct of Parties and Costs Consequences  Rules of Court 2021, O. 5, r. 1 and r. 2  Rules of Court 2021, O. 21, r. 2(2)(a)  Supreme Court Practice Directions 53  State Courts Practice Directions 34  The consideration of whether a party has unreasonably refused ADR 39 E. Conduct of Parties and Costs Consequences  Rules of Court 2021 (O. 5, r. 1) Duty to consider amicable resolution of disputes 1.—(1) A party to any proceedings has the duty to consider amicable resolution of the party’s dispute before the commencement and during the course of any action or appeal. (2) A party is to make an offer of amicable resolution before commencing the action unless the party has reasonable grounds not to do so. (3) An offer of amicable resolution in this Order means making an offer to settle the action or appeal or making an offer to resolve the dispute other than by litigation, whether in whole or in part. (4) A party to any proceedings must not reject an offer of amicable resolution unless the party has reasonable grounds to do so. 40 E. Conduct of Parties and Costs Consequences  Rules of Court 2021 (O. 5, r. 2) Terms of amicable resolution 2.—(1) An offer of amicable resolution and any rejection must be in writing. (2) An offer of amicable resolution must be open for acceptance within a reasonable period of time and in any case, for at least 14 days, unless the parties otherwise agree. (3) The terms of an offer that has been made and not accepted must not be relied upon or made known to the Court until after the Court has determined the merits of the action or appeal and is dealing with the issue of costs. (4) Any offer of amicable resolution which does not state an expiry date expires once the Court has determined the merits of the action or appeal to which it relates unless the offeror has stated otherwise. 41 E. Conduct of Parties and Costs Consequences  Rules of Court 2021 (O. 21, r. 2(2)(a)) Power of Court (2) In exercising its power to fix or assess costs, the Court must have regard to all relevant circumstances, including efforts made by the parties at amicable resolution. Parties that do not adhere to the duty may face consequences on costs 42 E. Conduct of Parties and Costs Consequences  Supreme Court Practice Directions 2021 para 53 and Appendix D (2) It is the professional duty of advocates and solicitors to advise their clients to consider ADR as well as to give their clients sufficient information about the different ways in which their disputes may be resolved using an appropriate form of ADR. In this connection, the attention of advocates and solicitors is drawn to Rule 17(2)(e) of the Legal Profession (Professional Conduct) Rules 2015. (3) The guidelines in Appendix D of these Practice Directions on advising clients about ADR apply. (4) ADR must be considered before the commencement and during the course of any action or appeal in order to facilitate the just, expeditious and economical disposal of civil cases. This is especially where ADR may save costs, achieve a quicker amicable resolution and a surer way of meeting the parties’ needs. 43 E. Conduct of Parties and Costs Consequences  State Courts Practice Directions 34 (5) A “presumption of Alternative Dispute Resolution” applies to all civil claims filed in the State Courts. For this purpose, the Court may refer appropriate matters for parties to attempt the amicable resolution of disputes through one of the Court alternative dispute resolution modalities (“Court ADR modalities”) during a case conference. 44 E. Conduct of Parties and Costs Consequences  State Courts Practice Directions 34 (con’t) (6) As the use of Court ADR modalities gives parties the opportunity to resolve their disputes faster and more economically compared to determination at trial, parties who wish to undergo Court ADR at an earlier stage must file a request using Form 2 of Appendix A1 to these Practice Directions. (7) The provisions pertaining to matters undergoing Court ADR modalities are provided for in Practice Directions 38, 42 to 44. 45 E. Conduct of Parties and Costs Consequences  State Courts Practice Directions 34 (con’t) (8) Where the Court is of the view that an ADR (including Court ADR) process is suitable, and the party/parties have opted out of the ADR process for reasons deemed to be unsatisfactory, this conduct may be taken into account by the Court when making subsequent costs orders pursuant to Order 21, Rule 2(2)(a) of the Rules of Court 2021, which states: “In exercising its power to fix or assess costs, the Court must have regard to all relevant circumstances, including — (a) efforts made by the parties at amicable resolution;” 46 E. Conduct of Parties and Costs Consequences  Test: Whether a party has unreasonably refused ADR  Halsey v Milton Keynes General NHS Trust 1 WLR 3002 at (The Halsey Checklist, non-exhaustive) (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success. 47 E. Conduct of Parties and Costs Consequences  Churchill v Merthyr Tydfil EWCA Civ 1416 The Court recently considered the Halsey Checklist The Court held at that it could lawfully stay proceedings for, or order, the parties to engage in a non-court based dispute resolution process provided that the order made does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. 48 E. Conduct of Parties and Costs Consequences  Other Cases: Nigel Witham Ltd v Smith and another EWHC 12 (TCC), at “ It is a common difficulty in cases of this sort, trying to work out when the best time might be to attempt ADR or mediation. Mediation is often suggested by the claiming party at an early stage. But the responding party, who is likely to be the party writing the cheque, will often want proper information relating to the claim in order to be able to assess the commercial risk that the claim represents before embarking on a sensible mediation. A premature mediation simply wastes time and can sometimes lead to a hardening of the positions on both sides which make any subsequent attempt of settlement doomed to fail. …” 49 E. Conduct of Parties and Costs Consequences  Other Cases: Nigel Witham Ltd v Smith and another EWHC 12 (TCC), at “…Conversely, a delay in any mediation until after full particulars and documents have been exchanged can mean that the costs which have been incurred to get to that point themselves become the principal obstacle to a successful mediation. The trick in many cases is to identify the happy medium: the point when the detail of the claim and the response are known to both sides, but before the costs that have been incurred in reaching that stage are so great that a settlement is no longer possible. ” 50 E. Conduct of Parties and Costs Consequences  Other Cases: PGF II SA v OMFS Co 1 Ltd 1 WLR 1386 at “…silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.” 51 E. Conduct of Parties and Costs Consequences  Other Cases: Legis Point LLC v Tay Choon Ai 3 SLR 1269 The costs of mediation work is claimable: The costs of mediation work could also have been taken into account by the Court when awarding party-and-party costs. 52  THANK YOU mediation.com.sg mediation.com.sg