MEDIATION IN THE SINGAPORE FAMILY COURT

Date01 December 1999
Published date01 December 1999
Citation(1999) 11 SAcLJ 189
AuthorADRIAN LOKE
1. INTRODUCTION

The theory and practice of Alternative Dispute Resolution (ADR) has gained growing acceptance worldwide as a foil against the rigours of traditional adversary process which has often been accused of leaving “a trail of stress and frustration”.1 The perceived benefits of these processes has meant that developing countries like Singapore has jumped on the proverbial bandwagon. The inherent problem of the established adversary system, in addition to its high costs and procedural delays, is that it often results in citizens defining personal problems and social troubles in terms of legal rights and obligations. This infatuation over who is right from a legal standpoint results in the transformation of social conflicts into legal disputes and this often accentuates problems instead of resolving them. “Although court judgements may end lawsuits, they often do not end disputes [my emphasis]”.2

The failure of the traditional adversary process to deal adequately with social problems is widely seen in the family context of countries like the United States, the United Kingdom and Australia. This problem is often similarly shared by developing countries on their way to affluence. The result is that Singapore has welcomed ADR into its legal system as an alternative means of resolving disputes. Although ADR has only been an official component of the Singapore Family Court for less than two years, much has already been said and written about its tremendous positive impact on families in Singapore. This article attempts to trace the development of the Singapore Family Court and analysing the reasons for its reception of mediation as the principal method of dispute resolution. In the course of this process, attempts will be made to highlight concerns over mediator standards, identify the mediation model used in negotiations and critically comment on reports of recent success rates. An important objective of this article is to assess the general suitability of family court mediation for Singapore family matters.

2. BACKGROUND

The problems commonly associated with the judicial process have not been as acute in Singapore as in England and the United States and therefore the impetus for ADR as an alternative means of dispute resolution has not been as great. Unlike North America which experienced

the ADR movement in the 1960s and Britain where similar growth was experienced notably in the family and community spheres in the late 1970s3, the concept of ADR in Singapore is relatively recent.4 Ironically, because of the novelty of the concept, instead of being known as an alternative to going to court, it is only by going to court that most Singaporeans are made aware of its existence ie. in the form of court mediation.

A survey conducted by Professor Lim Lan Yuan in 19915 designed to determine the extent that ADR was used in Singapore’s construction industry revealed dismal results. Although there was some familiarity with the concepts of mediation and conciliation, no more than a rudimentary understanding of such processes appears to have existed. Only the occasional use of such processes was made in the private sector and it was only in the Singapore Subordinate Courts’ Third Workplan in 1994 that an objective was set to implement court dispute resolution in civil cases. From June to December 1994, 82% or 197 cases out of 236 cases were successfully resolved through this process.

The Fourth Workplan in 1995 provided for the development of a Family Court and a Court Mediation Centre. Pilot projects offering mediation for matrimonial-related matters (maintenance and spousal violence) had earlier accounted for an 87% settlement rate and this achievement together with the success of court dispute resolution finally laid the foundations for the establishment of a Family District Court. Mediation as a dispute resolution process would have a big role to play in the functions of this court.

3. THE FAMILY COURT
(a) History

The creation of a Family Court was initially mooted by a group of Singaporean academics in 1985.6 They envisaged a family court not being so named merely because it handled matters relating to family law but because it handled family disputes in a particular and identifiable manner namely, by treating the source of the relational problems rather than the symptoms manifested in the behaviour of family members. Recognising that this area of the law deals not merely with legal rights and obligations but involves a delicate balance of personal emotions, child care issues and social stigma, all of which are continuing and interdependent, the need to go further than simply issuing formal legal remedies arises.

It was therefore conceived that the Family Court could deal with these issues. Specialisation would provide the flexibility needed for judges and their staff to understand and to take account of personal predicaments. It was envisaged that the Court would provide mediation and counselling facilities and supported by a professionally trained staff who would be able to assess the root causes of the problems and proffer suitable solutions rather than cold decisions favouring one party. This staff would have a variety of duties including following up cases after a divorce has been granted to assist the parties cope with life after breaking up.

However, this proposal met with some resistance. Critics cited insufficient caseload, infrequency of complex cases and an increase in costs which would not merit such specialization. Some based their resistance on the fact that England had not embraced such a concept (inspite of the Finer Report7) and our traditional dependence on English law meant that we should follow suit.

An argument in support of local opposition can be found in the approach adopted by Freeman.8 Like Weber9, Abel and Fizz10 he argues that a soft approach to family cases will only serve to dilute the law. He argues

that the law is there to protect the weak and it can only do so if it .is formalistic, impersonal and confined by rules. Substantive justice, often used as a tool to temper formal justice, has a minimalist role to play as the dangers of subversion by those in control are high. His view is that although the objectives of the Family Court are to tackle the root of the problem, in practice, it will rarely operate and achieve what we expect it to.

Freeman’s argument is premised on the fact that family law has developed such that decisions of the court in family matters are largely influenced by welfare officer reports and other experts. While lawyers have formal expertise, such social/welfare workers aspire to expertise based on empirical knowledge, and therefore, reliance on these reports may not produce accurate results as the reports are inherently flawed.

Freeman’s arguments, though fascinating, cannot be wholeheartedly embraced. Firstly, family cases are inherently different from other civil matters and by their very nature require different methods in handling. The issues are rarely solely concerned with legal obligations and specialisation will mean that suitably trained professionals are there to deal with them. Secondly, Freeman argues against an over reliance on the use of welfare reports. But it must be questioned whether the absence of such reports will make the situation any better. The judge, though familiar with procedure and legal recourse, is not trained for assessing human frailties. Although it is not a complete science, the work of psychologists, psychiatrists, social workers, welfare officers and anthropologists provide an insight into human behaviour which may assist a great deal in predicting the way in which certain people behave and react.11 Thirdly, Freeman’s argument would also make equity devoid of any role in the law as it is equity that represents substantive justice in today’s society. Discretion is often a double edged sword frequently providing a flexible framework within which the law can operate fairly on the one hand, while on the other, providing an opportunity for those in control to exert influence and abuse power. In my opinion, equity together with discretion are highly valuable in today’s society especially in dealing in the realm of human emotions and feelings.

However, some of Freeman’s reservations have proved to be valid. The Family Court began functioning from 1 March 1995 as an alternative venue from the civil courts for matters relating to maintenance, probate and adoption, spousal violence and other related applications. Divorce and ancillary matters were transferred over later in April 1996. But

fundamental differences exist from what was envisaged a decade ago. Past perceptions appeared to favour a conciliatory approach with the focus on helping the parties get back on their feet after a divorce. The present approach appears to be more concerned with reconciling the parties rather than on assisting with post-divorce effects.

This could prove damaging if a reconciliation is forced. Moreover, what was formerly envisaged was the use of professionally trained staff comprising of welfare workers, psychologists and the like, but instead, we have a court support group comprising largely of volunteers and court interpreters. Heavy reliance appears to be placed on these mediators and this could prove that some of Freeman’s fears are well founded.12

(b) Procedure

The procedure in the Family Court is quite different from other civil courts. A case involving enforcement, variation or rescission of an existing maintenance order or spousal violence, commences with a complaint lodged by the applicant and this is followed by the issuance of a Notice to the respondent to report to the Family Court within a week of the complaint. Here, both parties are subjected to mediation in an attempt to reconcile any differences. If the case is settled upon mediation, the terms will be recorded by a judge. If no settlement is...

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