Mediation and Appropriate Dispute Resolution

• Publication year: 2019
• Author: Nadja ALEXANDER1 BA, LLB (Hons) (Qld), Dip International Studies (Vienna), LLM D Jur (summa cum laude) (Tübingen); Professor, School of Law, Singapore Management University; Director, Singapore International Dispute Resolution Academy; Mediator, Singapore International Mediation Centre (SIMI certified). Shouyu CHONG LLM (National University of Singapore); Research Fellow, Singapore International Dispute Resolution Academy, Singapore Management University; PhD Research Student, Centre of Construction Law & Dispute Resolution, The Dickson Poon School of Law, King's College London.
• Date: 01 December 2019
• Citation: (2019) 20 SAL Ann Rev 614
• Published date: 01 December 2019

I. Introduction

22.1 2019 was a significant year for mediation. On 7 August 2019, 46 states — an unprecedented number — came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation2 (“Singapore Convention”). The Convention, which comes into force on 12 September 2020,3 provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism.4 The Singapore Convention aims to be for mediation what the Convention

on the Recognition and Enforcement of Foreign Arbitral Awards5 is for arbitration.6 The Singapore Convention casts an even brighter spotlight on Singapore as a mediation and dispute resolution hub; with this attention comes increased interest in Singapore's jurisprudence on mediation and other forms of appropriate dispute resolution (“ADR”).7

22.2 It is therefore timely to introduce a chapter on mediation and ADR to the Ann Rev. In terms of scope, this chapter will not deal with arbitration unless it forms part of a mixed mode dispute resolution process, which has mediation as an element.8 Further, the authors note that the body of jurisprudence on mediation and ADR-related subject matter is evolving. Thus, the categories of cases in this chapter will develop accordingly. In this inaugural chapter, the authors offer a review of cases in three categories. First, cases on the recognition and enforcement of negotiated and/or mediated settlement agreements are examined.9 Next, cases which address issues in mediation and ADR practice and ethics are reviewed.10 Finally, the authors consider cases dealing with civil procedure aspects of mediation, including disclosure of mediation evidence and the apportionment of costs.11

22.3 A number of these cases may also be examined in other chapters of this Ann Rev, as the cases deal with legal issues beyond mediation. In this chapter, case reviews focus on mediation-related issues only.

Category	Focus of review comments	Case
Recognition and enforcement of (mediated) settlement agreements	Recognising (mediated) settlement agreements	Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd12
		Jumaiah bte Amir v Salim bin Abdul Rashid13
	Enforcing (mediated) settlement agreements	Yashwant Bajaj v Toru Ueda14
		Ram Niranjan v Navin Jatia15
		Law Chau Loon v Alphire Group Pte Ltd16
Mediation/ ADR practice and ethics	Expert determination	Teo Lay Gek v Hoang Trong Binh17
	Neutral evaluation	Yashwant Bajaj v Toru Ueda
	Ethical considerations: conflict of interests	Wan Hoe Keet v LVM Law Chambers LLC18
Mediation and civil procedure	Costs	Seraya Energy Pte Ltd v Denka Advantech Pte Ltd19
		Yashwant Bajaj v Toru Ueda
	Confidential and without prejudice nature of mediation	Jumaiah bte Amir v Salim bin Abdul Rashid

II. Recognition and enforcement of (mediated) settlement agreements

22.4 The ability of parties to obtain recognition and enforcement relief from courts in respect of a validly concluded (mediated) settlement

agreement is a crucial consideration in dispute risk management. By way of example, parties may litigate in relation to non-compliance issues, seek judicial clarification as to a (mediated) settlement agreement's ambit, or apply for it to be set aside. Decisions emanating from Singapore courts have been favourable to the recognition and enforcement of (mediated) settlement agreements, thereby galvanising the attractiveness of mediation as a reliable and effective forum for mediation in Singapore. As the review below shows, the courts have also considered defences in relation to (mediated) settlement agreements.

22.5 In this part, decisions dealing with settlement agreements resulting from mediation as well as those resulting from negotiation are examined as the jurisprudence on negotiated settlement agreements will be relevant to mediated settlement agreements. This is the reason for the references to (mediated) settlement agreements throughout this chapter.

A. Recognising (mediated) settlement agreements

22.6 The following two cases confirm that in Singapore, (mediated) settlement agreements may be invoked as a complete defence against proceedings at arbitration or in court, as regards discrete issues already resolved through settlement.

(1) Settlement agreements as defence to arbitration proceedings

22.7 The case of Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services (Pte) Ltd20 is instructive of the Singapore position on the recognition of settlement agreements in determinative forums such as arbitration and litigation.

22.8 In this case, Rakna Arakshaka Lanka Ltd (“RALL”), a company associated with the Sri Lankan government and specialising in security and risk management services, became embroiled in a dispute with one of its contractors, Avant Garde Maritime Services (Pte) Ltd (“AGMS”), over a private-public sector partnership arrangement related to combating piracy in Sri Lankan waters. AGMS commenced arbitration proceedings against RALL at the Singapore International Arbitration Centre (“SIAC”) for breaches of contract, filing a notice of arbitration on 8 April 2015. RALL counter-sued AGMS in separate judicial proceedings, sending the latter a letter of demand on 23 August 2015 claiming for compensation as a result of the loss of reputation flowing from the institution of arbitration proceedings. On 20 October 2015, the parties

concluded a signed settlement agreement, recorded in a memorandum of understanding (“MOU”). The MOU had obliged AGMS to pay sums of money to RALL, in return for the latter to waive a part of one of its claims against the former. Additionally, the MOU expressly obliged both parties to discontinue and withdraw the arbitration and legal proceedings which they had each commenced against the other.

22.9 On 12 November 2015, RALL's attorney wrote to the SIAC, communicating to the arbitral tribunal that AGMS had agreed to withdraw the matter. However, on 15 November 2015, AGMS objected and wrote to the tribunal claiming that it was “not in a position to withdraw” the arbitration. AGMS subsequently proceeded with the arbitration at the SIAC and successfully obtained an arbitral award in its favour one year later in November 2016. RALL did not substantially participate in the SIAC arbitration. On 27 February 2017, RALL commenced proceedings in Singapore to set aside the arbitral award, submitting among several arguments that the arbitral tribunal lacked the requisite jurisdiction to hear the dispute. The High Court refused to set aside the award, and RALL lodged a successful appeal to the Court of Appeal.

22.10 Giving weight to the MOU, the Court of Appeal ruled that a settlement agreement may be invoked to supersede a cause of action ordinarily available to parties in the event of a breach of a contractual relationship.21 Delivering the judgment of the Court of Appeal, Judith Prakash JA ruled that a valid and binding settlement agreement would put an end to judicial and arbitral proceedings in respect to the discrete issues which it resolved (that is, which were recorded in the contents of that settlement agreement). The moment a settlement agreement is concluded and takes a binding effect on the disputing parties, the proceedings will be spent and exhausted. Effectively, the settlement agreement operates to preclude parties from taking any further steps or making any more submissions on the resolved issues at any determinative forum (that is, litigation and arbitration), unless that there is a provision for parties to apply to court or an arbitral tribunal to revive the settled dispute.22

22.11 The Court of Appeal also observed that if parties were to breach the settlement agreement, a separate claim against the breaching party would arise. Yet the breach will not ordinarily provide parties with

the opportunity to revive the settled dispute, unless it was specifically provided for in the settlement agreement.

22.12 As such, the Court of Appeal allowed RALL's appeal to set aside the impugned arbitral award. First, it found that the MOU was valid and binding between the parties — it was operative immediately upon its conclusion, because there was no express or implied indication otherwise. There was an express contractual declaration in the MOU that bound both parties to the agreement that they had concluded by signature. Secondly, the Court of Appeal ruled that the arbitral tribunal lacked the jurisdiction to render the award, because of the fact that no dispute or cause of action lay before it. The settlement agreement, encapsulated by the MOU, had already resolved the parties' dispute. This is an important decision by the Court of Appeal as it is the first apex court judgment in Singapore which turns on the successful invocation of a settlement agreement as a complete defence against arbitration proceedings.

(2) Recognition of mediated settlement agreement as potential defence in litigation proceedings — Interpretation of terms

22.13 In Jumaiah bte Amir v Salim bin Abdul Rashid,23 the High Court was asked to recognise a mediated settlement agreement. In this case, the plaintiffs, Jumaiah and Ezzad, and the defendant, Salim, were in dispute over a real estate deal that fell through in 2016. They were directed to mediation after filing a suit in the High Court and were able to reach a mediated settlement agreement in July 2017. This case before the High Court involved a claim by the plaintiffs to enforce allegedly implied terms under the mediated settlement agreement to pay rent for an extended period of time, as well as a counterclaim by the defendant for loss...