Comment

• Citation: (2017) 29 SAcLJ 275
• Published date: 01 December 2017
• Date: 01 December 2017
• Author: Dorcas QUEK ANDERSON LLB (Hons) (National University of Singapore), LLM (Harvard University); Assistant Professor of Law, Singapore Management University School of Law.

A COMING OF AGE FOR MEDIATION IN SINGAPORE?

Mediation Act 2016

The Mediation Act 2016 was recently passed by the Singapore Parliament and is soon to come into operation. This legislative comment compares the Act's key provisions to the common law principles concerning confidentiality and admissibility, enforcement of mediated settlement agreements and stay of proceedings pending mediation. It argues that the Act has refined the common law in certain areas, but has brought about greater uncertainty in other aspects. It also discusses how the major provisions are likely to be applied by the court in the light of similar developments in other jurisdictions.

I. Introduction

1 A new statute concerning mediation is about to take effect in Singapore. Passed by Parliament on 10 January 2017, the Mediation Act1 (“MA”) has introduced a legislative framework for commercial mediation. The MA has been enacted after several seminal changes were implemented in the mediation profession, including the establishment of the Singapore International Mediation Institute. Indeed, more than two decades have passed since mediation was first institutionalised within Singapore.2

2 Does the MA signify the coming of age of the mediation process within Singapore? This legislative comment analyses the MA with this

overarching question in mind. It compares its key provisions to the common law principles concerning confidentiality and admissibility, enforcement of mediated settlement agreements and stay of proceedings pending mediation. It argues that the MA has refined the common law in certain areas, but has brought about greater uncertainty in other aspects. It also discusses how the major provisions are likely to be applied by the court in the light of similar developments in other jurisdictions.

II. Scope of the Mediation Act

A. Application

3 The enactment of the MA brings to fruition the last of a series of recommendations made by a working group in 2013 to develop Singapore as a hub for international commercial mediation.3 Given the background of the MA, the statute has been drafted to apply principally to international commercial mediations that are connected to Singapore. Under s 6, the statute applies to any mediation that is “wholly or partly conducted in Singapore”, or any mediation stipulating that Singapore law or the MA applies to the mediation.

4 The MA currently excludes mediation sessions conducted by the court or taking place under the court's direction.4 Mediation sessions conducted by judges, staff or volunteers of the Family Justice Courts and the State Courts are thus excluded. The MA also does not apply to mediation proceedings that are conducted under “any written law”.5 As such, mediation programmes run by the Community Mediation Centres,6 the Tripartite Alliance for Dispute Management under the Ministry of Manpower7 and the Small Claims Tribunals8 are not bound by the MA.

5 In short, the MA currently has limited application to private mediations that are connected to Singapore. It complements the work of the Singapore International Mediation Centre, which was set up in 2014 to offer mediation services for cross-border disputes. The exclusion of certain types of mediation is meant to avoid potential inconsistency of

the MA with existing mediation frameworks that have their own established rules.9 However, it seems anomalous that sectors that have utilised mediation extensively for many years, such as the courts and Community Mediation Centres, have been excluded from the Act. The narrow scope of the Act also runs counter to the policy of having the Singapore International Mediation Institute (“SIMI”) set professional standards for all mediators in Singapore.10

6 Section 6(3) allows the Minister to make a future order in the Gazette extending the application of the MA to mediations conducted by the courts or done pursuant to the courts' direction. It is hoped that the scope of the MA has only been conservatively framed as a start, with the possibility of incremental expansion in the future. This approach was also adopted by Hong Kong's Mediation Ordinance, in order to specifically target the private mediation sphere.11 It is in the interest of the overall mediation industry and users to eventually have a uniform set of legal principles governing all types of mediation.

B. The Mediation Act does not legislate on mediation standards or mediation accreditation

7 The MA has been intentionally drafted to give a light touch to professional issues. Under s 3, the process of mediation has been broadly defined as facilitating the resolution of a dispute through identifying issues, exploring options and assisting in communication. There is also specific reference to the parties “voluntarily reach[ing] an agreement”. This underscores the consensual nature of mediation, and effectively distinguishes it from adjudicative processes in which a binding decision is imposed on the parties. The definition of mediation is also framed broadly to include mediation conducted online through electronic means. The MA will thus potentially apply to online dispute resolution processes involving a third party facilitating settlement.

8 Apart from the above provisions, the MA does not legislate on mediation standards or accreditation issues. Hong Kong adopted the same approach in its Mediation Ordinance. In this connection, one commentator explained that soft forms of regulations such as codes of conduct or institutional rules are more flexible than legislation and

therefore deemed by the Hong Kong taskforce to be more suitable to regulate the professionalisation of mediation.12 Likewise, Singapore has chosen to rely on SIMI to regulate mediation standards. This body currently administers a four-tiered mediation credentialing scheme.13 It is a prudent choice to limit the scope of the MA to legal principles that support the mediation process. Such principles have to be articulated with clarity, without being frequently changed. By contrast, the professional standards of mediation require the input of the mediation industry, and have to be sufficiently flexible to fit different contexts of mediation.

III. Confidentiality and scope of admissibility of mediation communications

9 We turn then to the first area of legal provisions – confidentiality and admissibility of mediation communications. One of the tenets of the mediation process is its private and confidential nature. It is therefore fitting that a substantial portion of the MA is devoted to clarify these rules. As the Senior Minister of State for Law explained, these rules are currently a mixture of common law privileges, contractual protections and equitable remedies, rendering them thoroughly confusing to the individual mediation user.14

A. Position in common law

10 Common law has provided general protection to mediation through two overlapping concepts of confidentiality and admissibility. The concept of confidentiality generally refers to the obligation of all the parties not to disclose mediation communications to any third party. Mediation confidentiality is premised on two sources – an express obligation of confidentiality in the mediation contract, and implied confidentiality: Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2)15 (“Farm Assist”). The duty of confidentiality can only be breached when all the parties, including the

mediator, collectively waive it. However, regardless of any waiver, the court may still order the disclosure of mediation communications when it is “in the interest of justice”.16

11 By comparison, the concept of admissibility is an evidential one, referring to situations when mediation communications may be properly adduced as evidence in court. Unfortunately, the legal position on admissibility of mediation communications has not been entirely clear. Both the UK and Singapore courts have relied heavily on the “without prejudice” rule to decide on admissibility. Under this rule, statements or offers made in the course of negotiations for settlement are not admissible in court: Rush & Tompkins Ltd v Greater London Council,17 followed in Singapore by Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd18 (“Mariwu”) and Ng Chee Weng v Lim Jit Ming Bryan19 (“Ng Chee Weng”). In Singapore, there has been some ambiguity concerning the sources of this rule. It appears to be derived from both common law and s 23 of the Singapore Evidence Act,20 which provides that “no admission is relevant if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given”. This section applies the “without prejudice” rule only to the parties involved in the negotiations.21 However, it has been accepted that common law extends the rule to third parties as well.22

12 It is also uncertain as to whether the “without prejudice” rule is synonymous with a “privilege” held by the parties. The Court of Appeal in Mariwu referred to a privilege while discussing the without prejudice rule.23 Yet Pinsler has noted that s 23, strictly speaking, is not a privilege since it merely states that such admission is not relevant. Admissibility of relevant facts is determined by law and not subject to the party's intention, whereas the doctrine of privilege is concerned with a party's right to withhold information, a right he can maintain or abandon through consent or waiver. Nonetheless, Pinsler posits that the principle

of waiver is still applicable in the context of communications for the purpose of settlement.24

13 It is evident that the “without prejudice” rule is not an absolute one. The UK court in Unilever plc v The Procter & Gamble Co25 (“Unilever”) set out some exceptions to the rule, including the admissibility of evidence of negotiations to show that an agreement apparently...