Mediation and Appropriate Dispute Resolution

Citation(2020) 21 SAL Ann Rev 724
Published date01 December 2020
Publication year2020
Date01 December 2020
I. Introduction

23.1 2020 was an important year for mediation in Singapore. On 4 February 2020, the Singapore Parliament passed the Singapore Convention on Mediation Bill,2 which came into effect on 12 September 2020. The enactment of the Singapore Convention on Mediation Act 20203 implements Singapore's obligations under the United Nations Convention on International Settlement Agreements Resulting from Mediation4 (“Singapore Convention on Mediation” or “Singapore Convention”), into Singapore law.

23.2 In this chapter, arbitration will not be discussed unless it forms part of a mixed-mode dispute resolution process, which has mediation as an element.5 The authors will analyse negotiated settlement agreements

alongside mediated settlement agreements (“MSAs”), bearing in mind the recent observation by the Court of Appeal that “parties’ negotiations with a view to a settlement also happen on platforms that ‘effectively [take] the place of a mediation’”.6 It is further noted that the body of jurisprudence on subject matter related to mediation and appropriate dispute resolution (“ADR”) is evolving. The authors therefore reiterate that the categories of cases in this chapter may evolve and vary year to year. For the 2020 Annual Review, the authors review cases in five categories. First, one noteworthy case from the District Court, deciding on a matter of enforcing a mediation agreement, will be examined. Secondly, the authors will examine cases on the enforcement of negotiated and/or (mediated) settlement agreements, with an additional focus on reliance on dispute resolution clauses in such settlement agreements to do so. Thirdly, the authors will briefly discuss an interesting case (the first one reported in almost 20 years) where the approval of the High Court was essential in giving effect to a negotiated settlement deed during insolvency proceedings pursuant to s 272(1)(d) of the Companies Act7 (“CA”). Next to be reviewed are the cases which address issues in mediation and ADR practice and ethics. Finally, the authors consider cases dealing with civil procedure aspects of mediation, including confidentiality of settlement agreement terms and the ability of parties to accept offers to settle after a judgment on the merits has been rendered.

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


Focus of review comments


Enforcement of mediation clauses and mediation agreements

Agreement to proceed to mediation at the Singapore Mediation Centre (“SMC”) before initiating judicial proceedings

Zhongguo Remittance Pte Ltd v Samlit Moneychanger Pte Ltd8

Recognition and enforcement of (mediated) settlement agreements

Enforcing (mediated) settlement agreements

Alphire Group Pte Ltd v Law Chau Loon;9 Navin Jatia v Ram Niranjan;10

Oei Hong Leong v Chew Hua Seng;11

On appeal, Oei Hong Leong v Chew Hua Seng;12 Leiman, Ricardo v Noble Resources Ltd;13 Inngroup Pte Ltd v M Asset Pte Ltd14

Dispute resolution clauses in (mediated) settlement agreements

Retrospect Investment (S) Pte Ltd v Lateral Solutions Pte Ltd;15


Court approval of settlement agreements

Application to approve settlement deed under s 272(1)(d) of the Companies Act17

Re Seshadri Rajagopalan18

Mediation, ADR practice and ethics

Ethical considerations: Conflict of interests

LVM Law Chambers LLC v Wan Hoe Keet19

Therapeutic justice (“TJ”)


Mediation, ADR and civil procedure

Confidentiality of settlement agreement terms

TYN Investment Group Pte Ltd v ERC Holdings Pte Ltd21

Acceptance of offers to settle after judgment on the merits

Michael Vaz Lorrain v Singapore Rifle Association22

II. Enforcement of mediation clauses and mediation agreements

23.4 The enforcement of dispute resolution provisions in commercial disputes is normally an issue of procedural importance. In this regard, the common law is broadly accommodating with the enforcement of adequately drafted mediation clauses and agreements to enter into mediation, referred to here as “mediation agreements” generally. Recently, this sentiment has been laid out by the Technology and Construction Court of the Queen's Bench Division in England, in Ohpen Operations UK Ltd v Invesco Fund Managers Ltd.23 In Singapore, the enforcement of mediation agreements is an uncommonly addressed matter in the courts. Section 8 of the Mediation Act 201724 specifically provides the Singapore

courts with powers to enforce mediation agreements. However, the provision has so far been seldom invoked.

23.5 An example of a mediation agreement may be found in VJZ v VKB.25 The beneficiaries of an estate were embroiled in a dispute over its administration. Some beneficiaries applied to the Singapore High Court (Family Division) for an order that the dispute be resolved at mediation, leading to the conclusion of an international mediated settlement agreement (“iMSA”) in 2018 to resolve their disputes over the relevant estate in Singapore and Indonesia; the iMSA contained the following multi-tier dispute resolution clause:26

The Parties hereby submit to the exclusive jurisdiction of the Courts of Singapore. The Parties agree that in respect of all disputes, controversies, claims or disagreements arising out of or in connection with this Agreement, including but not limited to its existence, validity, breach and enforcement, shall be first submitted to mediation at the Singapore International Mediation Centre and the mediator shall be Mr [xxx] S.C. The Parties further agree that only if the Parties have in good faith carried out the mediation and they have not been able to resolve their dispute, controversy, claim and/or disagreement, then, and in that event, only, the Parties shall commence legal proceedings in Singapore.

23.6 In 2020, there was one unreported case27 from the Singapore District Court which briefly addressed the enforcement of a mediation agreement. This case will be discussed next.28

A. Agreement to proceed to mediation at the Singapore Mediation Centre before initiating judicial proceedings

23.7 In Zhongguo Remittance Pte Ltd v Samlit Moneychanger Pte Ltd,29 the parties involved were in dispute over an unlawful means conspiracy and harassment claim. On 3 November 2017, the plaintiff applied to the Singapore District Court for a judicial remedy against the first to third defendants. Subsequently, on 3 July 2018, the parties entered into a consent judgment, in which the defendants agreed to cease their offensive actions against the plaintiff. Additionally, all parties had agreed to the following dispute resolution provision, which contains an agreement to proceed to mediation, in cl 8 of the consent judgment:30

8. … Any future dispute arising between the parties, including but not limited to disputes arising out of or in connection with this Settlement Agreement, such as any question regarding its existence, validity or termination, shall be submitted for mediation. The aggrieved party shall submit a request to the Singapore Mediation Centre for mediation within 21 days of the dispute arising. Such party to the mediation must be represented by a representative who has the authority to negotiate and settle the dispute. Unless agreed by the parties, the mediator shall be appointed by the Singapore Mediation Centre. The mediation shall take place in Singapore in the English language and the parties agree to be bound by any settlement agreement reached. Should the parties fail tor [sic] reach a settlement through mediation, then the parties may proceed to resolve the dispute in through [sic] the courts and/or the law enforcement agencies of the Republic of Singapore. For avoidance of doubt, the parties shall be deemed to have failed to reach a settlement if either party serves written notice terminating the mediation.

23.8 In May 2019, the plaintiff applied to enforce the consent judgment against the second and third defendants for non-compliance, by applying for an order of committal at the District Court. To stave off contempt proceedings, the second and third defendants sought to rely on the mediation agreement, reproduced above.

23.9 Citing the High Court in Ang Boon Chye v Ang Tin Yong,31 District Judge Jiaying Koh observed that where the plaintiff had voluntarily undertaken to refrain from taking out committal proceedings (for example, by agreeing to a dispute resolution provision which sets out alternative enforcement mechanisms), the defendants may successfully stay the plaintiff's application for leave to apply for an order of committal.32 The court therefore opined that it was imperative to interpret the scope of the mediation agreement: District Judge Koh definitively found that such committal proceedings would fall within its scope (that is, of “any future dispute arising between the parties”).33

23.10 In deciding that the plaintiff could commence committal proceedings, District Judge Koh opined that:34

… there was only an agreement not to resolve the dispute through the courts if all parties reached a settlement through mediation. This would mean that all parties [including the first, second and third defendants] would have to agree

to mediation once the aggrieved party submitted the request to the Singapore Mediation Centre [emphasis in original].

Further, the court gave weight to the fact that the first defendant did not — according to evidence from the SMC — wish to proceed to mediation, and therefore concluded that as not all parties agreed to mediation after the request was made to the SMC, the matter could proceed to court. In other words, the court recognised the mediation agreement but interpreted it in such a way that meant it had been...

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