Dispute Resolution Methods PDF

4 common modes of dispute resolution:: negotiation, mediation, arbitration, litigation Who are the decision makers? What is the natural process, costs, duration, focus Negotiation - It is an interest-based consensual, confidential process - Decision maker: Parties => they decide weather to am...

4 common modes of dispute resolution:: negotiation, mediation, arbitration, litigation Who are the decision makers? What is the natural process, costs, duration, focus Negotiation - It is an interest-based consensual, confidential process - Decision maker: Parties => they decide weather to amicably resolve the matter - Process: Flexible and informal - Cost: Relatively inexpensive -> because no third party service provider - Duration -> Short or long => the matter can be resolved in any duration of time - Focus of the matter: problem solving, focuses on possible future relationship Mediation - It is an interest-based consensual, confidential process that results in a binding settlement agreement - Decision maker: Parties => they decide weather to amicably resolve the matter - Process: Flexible and informal - Involving only an independent 3rd party, it is confidential, voluntary, non-adversarial. No power to impose decisions on 3rd parties - Cost: Relatively inexpensive - Duration -> Relatively Quick commencement to conclufion - Focus of the matter: problem solving and future oriented, focuses on possible future relationship - Result in a binding settlement agreement Arbitration - Decision maker: Neutral arbitrator makes teh decision. He imposes his decision in the form of an Award - Process: driven by a rigid institution driven set of procedural rules. It is confidential yet adversarial - Cost: Relativelye expensive -> pay lawyers, arbitrators, arbtiral institution, experts - Duration: arbitral institutions rules so it takes a fairly long process before reaching a hearing - Focus of the matter: Fault finding, legal principles, liabilities, what to do about a pass event Litigation - Decision Maker: Judge who makes judgmetn and imposes that decision - Proces: Rigid and formal governed on rules of court. It is adversairla and non confidential - Cost: Relatively expensive -> pay lawyers, experts etc - Duration: Takes a while before hearing even takes place - Focuses of the matter: Fault finding, liabilities (who is aliable?), legal rights, what happened in the past event and putting parties ina aposition as if the past event did not happen What is the process like during mediation Process? - Consensual and party-initiated - The mediator facilitates conversation between parties and creates a safe space for parties to communicate directly with each other to solve the dispute. - Facilitated by neutral, independent mediators - Disputants empowered to decide outcome amicably - Confidential, without prejudice and voluntarily entered into by parties Possible outcomes: - The Settlement agreement can result in a full settlement of all issues or partial settlement of some issues while the remaining issues are litigated or go for arbitration. - No settlement - Narrowing of issues / disputes - Because mediation provides a clearer understanding of what parties are fighting about- narrows down issues such that it highlights issues that pirates want to exercise their legal right over Role of the advocate in mediation Before dispute: - Every advocate has the duty to advice parties to consider amicable resolution of the party’s dispute BEFORE the commencement and DURING the course of any action or appeal. (Or 5 r 1) - In fact, “(Or 5 r 1(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.” - Definition of an OFFER of amicable resolution: 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.(Or 5 r 1(3)) - Upon receiving the offer of amicable resolution, a party to any proceedings must not reject an offer of amicable resolution unless the party has reasonable grounds to do so. (Or 5 r 1(4)) - Advise parties to include alternative dispute resolution clauses in contract. When dispute arises - The advocate still has the duty to suggest ADR during proceedings - Should asses and consider if mediation is a viable option - propose mediation for client’s consideration, where appropriate - prepare for mediation, including preparing clients and openings statements - Advocate should assist the mediator, while protecting the client’s interests - draft any settlement agreement with opposing party/counsel that accurately captures the points that have been agreed upon (the settlement terms) If parties wish to appeal, the advocate still has the duty to suggest for ADR Assist client to follow up on post mediation activities that may arise Common types of mediation and mediators Spectrum of mediation types Two types of mediation: Facilitative mediation, Evaluative mediation The style of mediation !! facilitative mediation evaluative mediation Also known as interest based, advisory, managerial mediation problem solving mediation Main objective THe main aim is to avoid legal to reach a settlement according to of mediation positions and negotiate based on the legal rights and entitlement of the parties’ underlying needs and parties within the anticipated range of interests rather than what they are court outcomes entitled to legally Type of Expert in mediation process and Have expertise in substantive areas mediator techniques. Does not have to have of the dispute. Does not have to have required necessary expert knowledge of the necessary qualifications or mediation subject matter because it is the techniques parties that know their underlying needs and interest Mediator’s main conduct the process, maintain a provide additional info, advise and role constructive dialogue between persuade parties, bring profesional parties and enhance negotiation expertise to the content of negotiation process Other less intervention by mediator, greater intervention by mediator who characteristics parties are engaged to talk to each has greater control over the outcome other and fashion creative interests around mutual interests Should i convince my client to attend mediation? Weigh the pros and cons Advantages! - Benefits to client - Quicker resolution of issue - Client is in control of outcome - ▪ Greater number of possible solutions and creative problem solving - ▪ Less costly as compared to other dispute resolution mechanisms - Therei s a prospect of confidentiality - Prospect of Preservation / improvement of relationship between disputants - ▪ Choice of mediator - Benefits for counsel - Greater client satisfaction because have guided client to solve disputes in a timely and cost efficient manner. This will increase client satisfaction and their loyalty - Opportunity to test the strengths and weaknesses of the client’s case, in case mediation fails and court proceedings were to commence Disadvantages of mediation as a dispute resolution process - No certainty of settlement - Because of party autonomy there is no certainty that parties will agree to amicably resolve their dispute. But in litigation there is a judgment or there is an award for arbitration that pronounces whether one party wins over the other. - No legal precedent - Due to the confidential nature of the mediation process, creative and successful mediation processes are not available for mediators to refer to. There is no case reference available unlike for litigation and arbitration - This means that mediation is not suitable for any pronouncement of legal entitlement of rights eg in a boundary dispute or interpretation of contract term where parties would require the findings of the mediation process to be publishable and publicly recognised to serve as as guide for future cases - No formal discovery process to compel the other party to disclose documents relevant to the process - Hence, any exchange of documents are reliant on the good faith and negotiation of both parties. Have to rely on voluntary disclosure- parties must trust that the other side will volunteer information which depends on whether both parties have developed trust and rapport with one another. - Depends on the skill of the mediator to tease out objective criteria, relevnt information that may guide parties to see whether options are fair and relevant to meet hte underlying needs and interest. Professional bodies in arbitration 1. SIMI: concerned with professional mediation standards and accreditation of mediators  2. SIDRA: Drives throught leadersehip in the ADR space 3. Courts (State courts, syariah courts, supreme courts, family justice courts) adopt mediation practices as part of the dispute resolution process a. Or 5 r 3(1) The Court may order the parties to attempt to resolve the dispute by amicable resolution. b. Or 5 r 3(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. c. Or 5 r 3(5) The Court may suggest solutions for the amicable resolution of the dispute to the parties at any time as the Court thinks fit. Commercial institutions Encourage access to justice and amicable disputes - Singapore Mediation Centre, Singapore international mediation centre, consumers association of singapore, community mediation centres, - FIDReC (Financial industry disputes resolution centre): Filing the non injury motor cases (cases of property damage) - TADM (Tripartite alliance dispute management): concerns employment disputes - - - Institutions that provide general mediation services Singapore mediation centre Singapore international mediation centre Community mediation centre Law society mediation scheme Industry specific mediation scheme Private organisations Singapore international mediation institute Singapore international dispute resolution academy Singapore mediation centre (focus on domestic disputes) Not for profit mediation organisation, started in 1997. Spearheaded commercial dispute Subsidiary of the SAL. Chairperson of the Singapore mediation centre is usually a sitting Supreme Court judge There is no actual jurisdiction limit 4 Panels of trained mediators: panel of senior mediators are made up of senior judges of the Supreme Court, retired judges Singapore international mediation centre (focus on MEDIATION but for international cross border commercial disputes)  Not for profit mediation organisation, started in 2014 pursuant to the recommendation of the Working Group Committee (MinLaw) Intention: to become a Hub for international commercial mediation The mediators have cross border disputes experience Arb-Med-arb protocol (allows for the mediation settlement to be converted into an arbitral award and enforced by parties that are signatories to the NYC Community mediation centre - started in 1998 under community mediation centres act 1997 - Provides mediation services for social, community or family disputes that do not involve a seizable offence eg disputes between neighbours - CMC aims to promote social harmony via resolving disputes through mediation - Ministry of law has oversight over CMC - No jurisdictional limit , handle any disputes of any type anywhere Law society mediation scheme (LSMS) - Look at general mediation cases - Compliments the law society arbitration schemes Launched in March 2017 as part of the law society of Singapore’s dispute resolution options - Provides mediation services for civil disputes - Law society mediation scheme- Law society of Singapore SMC Mediation and Industry mediation schemes Industry mediation schemes = mediation schemes dealing with particular types of industries These are industry mediation schemes under the SMC Mediation - Mediation procedure rules - Pertain to any civil case- any quantum, no geographical limits - Industry meditation schemes (All administered by SMC?) - Examples of industry mediation schemes: - Council for estate agencies mediation sub-scheme - Aims to help settle disputes between clients and estate agents - Applicable for disputes which arise in relation to estate agency agreements as well as the sale, purchase, lease of residential property - Fair tenancy industry committee - Only retail tenancy agreements - Aims to help settle disputes under the Code of Conduct for Leasing of Retail Premises in Singapore - Healthcare mediation scheme - Aims to help settle disputes between individuals and healthcare institutions eg patient care, quality of service  - Supported by MOH Holdings Pte LTd (Holding Coy of SG’s public healthcare clusters) - Singapore medical council mediation scheme - Aims to settle disputes between individuals and registered medical practitioners over issues such as serious misconduct (misdiagnosis, mistreatment, negligence), breach of duty, or neglect - Lodge complaint with the singapore medical council first before utilizing the scheme - Referral programme in partnerships with the SIngapore medical council complaints committee - Committee for private education mediation-arbitration scheme - This Committee is launched with teh Singapore institute of arbitrators and the Committee for private education - Aims to help settle disputes between students and private education institutions over issues relating to enrolment, course fees, disciplinary matters - Launched by the committee for private education in conjunction with SMC And the Singapore institute of arbitrators - IPOS Mediation promotion scheme - Copyright matters, passing off, patent - Funding scheme that promotes use of mediation to resolve intellectual property disputes by subsidising parties’ mediation costs - IPOS provides Subsidies of up to $10k or up to $14k if the dispute includes issues on foreign IP rights - - Industry specific mediation not administered by SMC - FIDReC: Financial industry disputes resolution centre ltd handles disputes between financial institutions (banks, insurers, licensed financial advisors) and consumers - Investment products, insurance policies - CASE: Consumers association of Singapore - Mediates consumer business disputes, protects consumer’s interests eg consumers who have purchased goods and services - Strata Title board mediation - Mediation services for disputes regarding strata title property between subsidiary proprietors OR between one subsidiary proprietor and management corporation - Eg (subdiairy- subsidiary) dispute about water leaking - Eg (subsidiary- MCST) whether the subsidiary proprietor can alter the facade of the property Institutions that are NOT mediation service providers - SIMI (Singapore international mediation institute) = an independent professional standards body for mediation - Set up in 2014 as a not for profit organisation - Supported by Min Law and NUS - Aims to apply and enforce world class standards of mediation to provide impartial information about mediation and to promote mediation, education and awareness - It accredits mediation training centres, accredits qualified mediators. There are 4 levels of accreditation - Mediation conducted by SIMI mediators enjoy the privileges of SIMI Institutions that provide research, training, consultation relating to mediation and negotiation - Singapore international dispute resolution academy (SIDRA) - This is a not for profit organisation launched in 2016 - Provides research, training and consultation services relating to mediationand negotiation. It is a platform for thought leadership, theory, practice and policy - Educations and trains through publications, events and projects