LAW 403 Negotiation and Mediation for Lawyers AY 20112012, Semester 1

Section: Instructor: Student Number:

G1 Ian Macduff S9008558A

I declare that this research paper contains 3000 words.

Mediation attitudes in Singapore Whenever you're in conflict with someone, there is one factor that can make the difference between damaging your relationship and deepening it. That factor is attitude.1 I. Introduction Conflicts arise in abundance around us each day. As easily as these conflicts sprout, they are just as, or possibly tougher to resolve. These problems are more prevalent in developed countries, where the nature of disputes is wide ranging. To tackle this issue, numerous dispute resolution methods have been implemented in many societies, to ensure that the faade of a harmonious society can be preserved. This is the very emphasis of Singapores dispute resolution framework.2 This paper looks to explore the concept of mediation as a dispute resolution method in Singapore, and the attitudes towards this concept, and to eventually determine if this concept can then be properly deemed a success. II. Types of mediation in Singapore The concept of mediation in Singapore is not a foreign one, and has in fact been in existence since the early days, based on Asian tradition and culture. It can even be said that concepts such as mediation mirrors traditional Asian philosophy and practices3. With urbanization and exposure to western concepts however, mediation in Singapore has evolved over time. There are two main forms of mediation that are known in the Singapore context. These would be indigenous mediation, which was conducted in the early days, and involved mediation in the community level conducted by prestiged community leaders4, as well as modern mediation, which carries great western influence5. A. Indigenous mediation

William James quotes (American Philosopher and Psychologist, leader of the philosophical movement of Pragmatism, 1842-1910). 2 TAN, Kheng Boon, Eugene, "Harmony as Ideology, Culture, and Control: Alternative Dispute Resolution in Singapore" (2007). Research Collection School of Law. Paper 899. http://ink.library.smu.edu.sg/sol_research/899, at 120. 3 Ngoh Tiong Tan, Community Mediation in Singapore: Principles for Community Conflict Resolution Conflict Resolution Quarterly, vol. 19, no. 3, Spring 2002, at 298. 4 Joel Lee and Teh Hwee Hwee, An Asian Perspective on Mediation, (Academy Publishing, 2009) at 6. 5 Id, at 11.
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Indigenous mediation tends to be an informal mediation procedure, void of stringent guidelines. It is one where the process is conducted by an authority who is of high standing in the community, known to and trusted by the parties6. The concept of reputation thus was of great importance in this mediation method, as it would have the effect of determining the level of cooperation that can be attained from the parties. This form of mediation also involves moral persuasion premised on cultural and community values, such as giving face to the mediator7. Expanding on this tradition of face-saving, which is of great importance to the Chinese, we can see that adherence to traditional practices is also vital to the success of this mediation method, as it gives effect to deep-seated believes such as the need to avoid undue publicity so as to maintain the Confucian ideology of harmony and order8. B. Modern Mediation Modern mediation in Singapore can be categorized in two main forms, that of state-led mediation and community mediation. Modern mediation involves greater institutional administration and procedural requirements, making it more formal and systematic as compared to the ad hoc nature of indigenous mediation. There is a requirement for mediators to have sufficient qualifications, such as having met the minimum training requirements.9 (1) State-led mediation As much as it has been said that mediation tends to occur under the shadow of the law, this position is slightly different in Singapore. Mediation in Singapore operates under the aegis of the law10, as the process is a top-down one, where the government and judiciary exercise control and influence over its establishment and development11. Focus can be drawn to court mediation, which was introduced in Singapore in 199412, since which the government has taken steps to legislate for court mediation, hence ensuring that there is still a semblance of state control in the mediation process in Singapore.13

Id, at 10. Ibid. 8 Supra n 3, at 298. 9 Supra n 4, at 12. 10 Supra n 2, at 122. 11 Id, at 124. 12 Supra n 4, at 7. 13 Adrian Loke, Mediation in the Singapore Family Court 11 SAcLJ 189 1999 at 196.
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(2) Community Mediation The aim of community mediation is to place the responsibility of neighbourly relations and the civil duty of peacemaking on the citizenry14. This process is especially importance to the social fabric of Singapore due to its multi-racial and multi-ethnic society, as there is a heightened need for social understanding, tolerance and cohesion15 to ensure that stability and peace is maintained. III. The object of mediation in Singapore Mediation looks to provide parties with a voluntary process that would enable them to be actively involved and to maintain control over the substantive issues and overall outcome of the dispute. It encompasses the development of options for resolution and looks for an amicable agreement to be reached.16 A. What is envisioned by the Singapore system? The Singapore system does hold true to the above overarching aim of mediation. On top of ensuring that with the option of mediation parties can attain more suitable solutions rather than cold decisions that favour one party, the introduction of mediation into the Singapore legal system also hopes to curb the trend of Singaporeans becoming too litigious by providing a method which is less expensive and adversarial. This would also provide a mechanism for the efficient handling of cases, as the courts would be assisted in reducing the number of cases handled by judges.17 The distinct feature of the Singapore system is that it is also envisioned that the mediation process is to keep to the Asian way of life, which promotes the settlement of disputes harmoniously. This involves the incorporation of the Asian soft approach, where cooperation, consensus and pragmatism are valued.18 IV. Problems with mediation processes in Singapore A. Court mediation For the Family Court in particular, parties are subjected to mediation to attempt reconciliation before the matter is allowed to proceed further.19 This is evidence that the mediation process in Singapore gives effect to the belief that the

Supra n 3, at 289. Tan Ngoh-Tiong and Lee-Partridge Joo Eng, Alternative Dispute Resolution In Business, Family and Community: Multidisciplinary Perspectives, (Pagesetters Services Pte Ltd, 2000) at 103. 16 Lim Lan Yuan, ADR A Case for Singapore 6 SAcLJ 60 1994 at 51. 17 Supra n 13, at 194. 18 Id, at 196. 19 Id, at 193.
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courtroom should be the ultimum remedium (forum of last resort)20. Court mediation also serves the effect of making Singaporeans more aware of the concept and process of mediation, as due to the novelty of the concept, it is only through the forum of the courts that exposure can be generated21. Such state-led mediation undeniably carries the sanction and legitimacy of the court as well as the force of law22, however concerns do arise where elements such as coercion and a fixation on settlement come into the picture. (1) Mandatory mediation As court mediation is viewed to be mandatory mediation, it brings into question whether this defies the nature of mediation, which encapsulates voluntariness. It is ironical that the main premise of mediation, being voluntariness, is completely ignored, and the court effectively imposes mediation sessions on parties. Can this process then still be referred to as mediation? This is especially so where, in the Family Court, the refusal to be subjected to initial mediation processes by a party will cause him to carry the risk of accountability of refusal to the court.23 (2) Nature of the mediation It is true that where mediation is brought into a court setting, the environment tends to be slightly foreboding, resulting in parties being disillusioned with the process they are involved in.24 It would be likely that in this situation parties would be unaware of their legal rights, the flexible nature of mediation, and their ability to participate in an active manner in the decision making process25. (3) Settlement One main concern with court mediation is whether there is a fixation on settlement rates.26 With the concept of mandatory mediation coming into play, judges/mediators are likely to adopt a more interventionist role27, and the process would be one that might result in parties being coerced into reaching a reluctant and possibly even unfavourable decision. This outcome is possible as in such a formal environment where parties are subjected to people in positions of authority, their ability to veto decisions is non-existent28. The presence of such coercion will tend to completely eradicate the environment of frank communication that is supposed to come naturally with a mediation session. Supra n 2, at 121. Supra n 13, at 190. 22 Id, at 196. 23 Id, at 193-194. 24 Id, at 197. 25 Supra n 3, at 293. 26 Supra n 2, at 135. 27 Yong Pung How (2003b) Anchoring Justice, Speech by the Chief Justice at the Subordinate Courts 12th Workplan 2003/2004, 17 May. 28 Supra n 13, at 197.
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This causes one to question the high settlement rates that have been evidenced as success of mediation in Singapore. This high settlement rate is as high as about 75%29 of the cases that are dealt with by the courts. Should settlement rates be regarded as a proper indication of the success of mediation, especially where the essence of mediation seems to be diminished in the quest to attain settlement? B. Community Mediation Community mediation is largely carried out through Community Mediation Centres (CMCs), in resolving family, social and community disputes that do not involve seizable offences.30 However, the flow of cases is largely dependent on referrals by authorities. This tends to bring into question the voluntariness aspect that is unique to the concept of mediation, and whether the object of mediation as envisioned by the Singapore system is held true, through community mediation. (1) Trained mediators Although community mediation looks to preserve the essence of traditional and informal networks, this is done through the incorporation of a modern structure for community conflict resolution.31 As such, the formality, technicality and evidentiary rules and regulations that apply to the norms of formal mediation procedures would likewise apply here.32 With such a structure to be attained, it is vital that trained professionals, who are not just proficient in systemic conflict resolution, but who are also familiar with the nature of the community33, play the role as mediators. This however is not what occurs in practice. The mediators for community mediation come from a wide spectrum. They range from trained grassroot leaders to volunteers who are members of the community.34 This approach does achieve the goal of ensuring that the mediator is a neutral party, however the importance of the mediator being proficient in the area of cultural and ethnic sensitivity is completely bypassed.35 To equip volunteer mediators with the appropriate skills, a simple two-three day workshop36 is conducted. This calls into question the appropriateness of volunteers as mediators, as there is only so much that a person can learn within such a short time frame. There is also no proper screening mechanism in place Supra n 4, at 8. Id, at 9. 31 Supra n 3, at 289. 32 Supra n 2, at 131. 33 Supra n 15, at 105. 34 Supra n 3, at 293. 35 Id, at 296. 36 Id, at 295.
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that truly determines a volunteers suitability and capability. It seems that since volunteers are hard to come by, they are very easily accepted as mediators.37 Although it is true that the core belief underpinning the national mediation movement in Singapore is that of mediation skills being regarded as something that can be taught and imparted38, there must still be a proper check and balance in place that would ensure that this is achieved in a regulated manner. Such a casual system causes one to worry about how the process is being conducted, and whether this trivializes the process of community mediation. (2) Creative solutions One of the advantages of mediation is that it allows for creative solutions to be explored, as mediation does not depend on a determination of merits or finding of fault39. In community mediation especially, the aim is to establish an effective relationship through communication, clarification and the development of greater understanding and empathy. The flexible approach of enforcing creative solutions gives effect to the primary focus of community mediation, which is to deal with the problem at hand using an objective problem solving approach40. Following on the above point that the lack of adequately trained mediators for community mediation has the potential to undermine the entire mediation process, it would follow that where the flexibility to make creative solutions is offered to unskilled mediators, there is the chance that these solutions might fly in the face of logic. This is especially so where the Singapore society has a strong culture of basic respect for law and authority41 due to the strong legal and institutional framework42 that has been long established in Singapore. Where mediators who do not fully grasp the implications of the law draw up creative solutions, can we truly say that legitimacy, equality and fairness is maintained through the mediation process? Once more, the process of mediation is trivialized, as one can no longer be sure if equity, fairness and procedural protections are sufficiently internalized within the framework43. (3) Asian soft approach The Asian soft approach ensures that the mediation process is structured such that it is culturally appropriate for Singapore. Not only do Asian traditions and Supra n 13, at 203. Supra n 2, at 132. 39 Supra n 4, at 16. 40 Supra n 3, at 293. 41 Supra n 13, at 205. 42 L Y Lim, Mediation Style and Approaches in Asian Culture, Conference Proceedings of the 2nd Asia Pacific Mediation Forum: Developing a Mediation Culture, Singapore (19-22 November 2003) at 3. 43 Supra n 2, at 137.
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cultures come into consideration, but more importantly, the paternalistic policy that has been adopted in the Singapore society is given great weight. One clear example of this would be the focus on Singapores Shared Values44. Hence, this effectively translates to the needs of the nation, community and society, being placed before those of the individual, thus enforcing the Asian way of life.45 The problem here is whether the adoption of such a soft approach would result in the dilution of the law? By adopting the soft approach in framing the mediation process, it appears that the system deviates from the classic framework offered by the law, which is largely formalistic, impersonal and confined by rules46. Although harmonious relations might be attained at the end of the day, this does not necessarily mean that justice is served. C. Mediation model Singapores mediation model is one that is hard to define, as various methods and approaches are adopted simultaneously. When we consider the Singapore Mediation Centre (SMC), the SMCs official stand is to adopt an interests-based model. An interests-based model operates such that there is a distinct dichotomy between the process and substance in a mediation. This would also involve a move away from positional bargaining, where the focus is on finding a solution that best meets the interests of the parties involved.47 However, it is clear that in practice, mediators do not adopt a merely facilitative approach. Thus, the strict dichotomy between process and substance is not maintained either.48 There is a semblance of the directive model creeping in. This is where mediators play a more active role, and the settlement achieved would tend to comprise largely of terms imposed by the mediator49. This directive model can also be said to be in line with the Asian approach, which places emphasis on respecting authority.50 This model thus draws experience from indigenous mediation practices, as such practices are considered to reflect cultural norms51, such as those which give high regard to the mediator, thus enabling him to intervene in the mediation process to a greater extent.

First: nation before community and society above self; second: family as the basic unit of society; third: community support and respect for the individual; fourth: consensus, not conflict; fifth: racial and religious harmony. 45 Supra n 2, at 129. 46 Freeman Michael DA, Questioning the Delegalization Movement in Family Law: Do We Really Want a Family Court?, ( J Eekelaar and SN Katz, eds) at 7. 47 Supra n 4, at 17. 48 Ibid. 49 Supra n 13, at 206. 50 Supra n 4, at 15. 51 Id, at 19.
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An example of how the directive model tends to appear more than the interestsbased model, is where the SMC requires the parties to sign an Agreement to Mediate once they are committed to mediation after having been given a briefing regarding the process and expectations. This illustrates the formalistic, stringent and rigid system in place, where authorities have more control over the process as compared to the parties. Where the mediation model in Singapore is more inclined towards that of a directive model, the worry then creeps in about whether the true nature of mediation is achieved? The essence of a mediation process is where the mediator maintains an impartial and neutral position without imposing any solutions, while the parties are actively involved in the problem-solving process and retain control over the dispute.52 This does not seem to be embodied in the directive model of mediation adopted in Singapore. Instead, it appears that a solution is being imposed on the parties by the mediator in a bid to resolve the dispute. The parties are allowed to participate in the process, but the control over the dispute seems to lie largely with the mediator. This process then seems to display traits that make it largely similar to another alternative dispute resolution method that is widely used in Singapore arbitration. Where this is the case, one cannot help but wonder if the mediation model adopted in Singapore is truly a success? V. Success in the mediation process The concept of success in mediation cannot be one that is arbitrarily pinned to the result of settlement. Although settlement does ensure that the mediation has resulted in a solution that brings with it certainty, this does not automatically mean that the mediation process attained all the objects of mediation. 53 Keeping this in mind, it would then be pertinent to consider if the mediation scene in Singapore has been successful. It has been found that through mediation, parties in Singapore genuinely consider that they have saved costs and time54, and this goes towards showing that mediation here is then achieving the object of providing a more costeffective and efficient dispute resolution option. The question of whether success has been properly achieved comes in where we consider the cultural differences that come into play.55 Modern mediation is something that is largely due to the product of western societies. In Singapore, we have attempted to merge this concept with the mediation that the society has been exposed to since the early days that of indigenous mediation where the Asian soft approach is recognized. The problem arises where the ideals of western mediation, such as a purely voluntary process and allowing greater Supra n 16, at 52. Supra n 13, at 208. 54 Supra n 4, at 14. 55 Supra n 4, at 17.
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control over the dispute to the parties, cannot be met in the Singapore context due to the incorporation of Asian values. It is at this juncture that we must consider if the mediation process as adopted and reinvented in Singapore is then a success, based on the needs and values of our society. VI. Conclusion Considering the primary objective of mediation in Singapore, we come to understand that this hinges on providing a mechanism to attend to cases at an earlier and faster rate and to form part of the case flow management system for the efficient handling of cases56. In defining the mediation scene in Singapore, we must acknowledge that Singaporeans are naturally more responsive to authoritative figures, the mediation model in Singapore is more in line with a directive approach, settlement is of great importance, and the establishment of an efficient process is vital. We must be willing to define Singapores mediation model as such, acknowledging its distinct character, and that its primary ideals do not exactly correspond with those of western societies. After defining the mediation model in Singapore in this manner, and accepting that the goals it is to attain are specially and uniquely tailored for our society, only then can the current concept of mediation in Singapore be deemed a true success.

Grillo Trina, The Mediation Alternative: Process Dangers For Women 100 Yale Law Journal (1990-1991) at 1545.
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