Note: THE INTEGRATION OF ALTERNATIVE DISPUTE RESOLUTION WITHIN THE SUBORDINATE COURTS’ ADJUDICATION PROCESS

Citation(2004) 16 SAcLJ 501
Published date01 December 2004
Date01 December 2004

The Singapore judiciary took the lead in introducing alternative dispute resolution (“ADR”) mechanisms into our legal system in 1995, to check the trend of Singaporeans becoming too litigious, and to provide a less expensive and adversarial method of dispute resolution to suit a range of conflicts. This article examines how ADR mechanisms have been integrated within the adjudication process, with particular emphasis on the processes used by the Family and Civil Divisions of the Subordinate Courts to refer a dispute to ADR.

I. Introduction

1 Alternative dispute resolution (“ADR”) mechanisms, in the form of mediation and counselling, have been used in the Subordinate Courts as an alternative to litigation since 1995.

2 This article outlines and evaluates the ADR referral processes used by the Family and Civil Divisions of the Subordinate Courts, and

compares them against the practice in Australia as set out in the paper “Court Referral to ADR: Criteria and Research” (“the paper”).1

II. Referrals for ADR in the Singapore Family Court

3 The Singapore Family Court recognises that family disputes stand in a class of their own. Often, the cases involve dysfunctional families, and parties with complex inter-personal conflicts and deepseated relationship issues. When a family dispute arises, the underlying conflicts are not resolved by simply determining the legal issues and issuing court orders. Parties are likely to have to continue to meet or communicate with one another long after their case is concluded, especially with regard to issues related to the raising of their children. Family disputes should be resolved conclusively, including addressing the root causes and the emotions of parties. Further, the impact of family conflict on the children may extend well beyond the present generation. It is therefore imperative that from the outset, support is extended to parties and their children to moderate these effects. It would not be sufficient for the Family Court to hear cases and determine the legal disputes between the parties, without providing a network of services to address these other concerns.2

A. Mediation

4 Depending on the nature of the matter before the Family Court, mediation is conducted by judicial officers, by specially-trained interpreters who double-up as mediators, or by members of the court support group, which consists of volunteers from diverse backgrounds, such as psychologists, social workers, family therapists and academics. In mediation, both parties go before a neutral third party (the court mediator) who will help parties discuss issues and co-operate with each other in resolving their disputes in a systematic and structured manner. Whatever is said during the mediation session is confidential.3 Unlike in Australia, the court will not refer a case for mediation unless both parties have consented to attend the mediation session.

5 Mediation of the high number of applications for maintenance and enforcement of maintenance orders is conducted on a daily basis in the Family Court. An evaluative exercise is called for in mediating maintenance applications. The income positions of both parties and their expenses are starting points in the evaluation of the appropriate quantum of maintenance payable.

6 The guideline criteria currently used to decide whether a case should proceed for maintenance mediation are as follows:

Cases suitable for mediation:

(a) Where the parties are themselves committed to seeking a solution;

(b) Where there is a need for a speedy solution;

(c) Where the parties wish to avoid adverse publicity;

(d) Where there is a need to save litigation costs;

(e) Where there is a need to preserve the relationship between parties; and/or

(f) Where the parties desire and/or are able to find their own solution.

Cases not suitable for mediation:

(a) Where a legal precedent should be established;

(b) Where a declaration of law is sought;

(c) When serious crimes are involved;

(d) When legal rights have been infringed;

(e) Where parties are legally represented;

(f) When the other disputing party is unable or unwilling to negotiate;

(g) When there is a dispute in arrears;

(h) Where the level of acrimony between the parties is extremely high;

(i) Where there are disputes in paternity;

(j) Where a party is not sober; and/or

(k) For enforcement of maintenance matters, where it is the sixth enforcement application or more (unless parties are extremely keen on mediation).

7 Generally, the Family Registry has reported a high settlement rate of over 90% of all maintenance summonses referred for mediation in 2003 and 2004.4 Parties may approach the court for purposes of applying for maintenance, varying an existing maintenance order or enforcing a maintenance order. The referrals and mediation are carried out by the court staff who perform the dual functions of interpretation (where parties are not conversant in English) and mediation. This is done soon after the summons is served on the respondent. If the matter is not resolved, a second attempt at mediation is also carried out when the parties’ case is fixed for mention in court. The settlement rate at this stage is about 70%. This lower rate of settlement is quite often reflective of the high level of acrimony between parties, and the cases in question are largely those where parties fail to settle at the registry mediation stage. Given the 70% chance that settlement is still possible, referring such cases for mediation despite the high level of acrimony between the parties (or perhaps, indeed, because of the high level of acrimony) is clearly a beneficial exercise.

8 Divorce mediation is intended to facilitate uncontested divorce proceedings. If one party indicates during divorce mediation that he or she is interested in reconciling with his or her spouse, the mediator will explore the possibility of reconciliation with both parties. Where appropriate, the mediator will propose that parties attend counselling towards this end. Reconciliation is certainly only possible when both parties are willing to work towards this. The mediator will not compel an unwilling party to attempt reconciliation.

9 If a decree nisi dissolving the marriage has already been granted, the mediator’s task is to assist in the resolution of the ancillary matters, ie, issues of custody of the children, maintenance and the division of the matrimonial assets. The process undertaken here is evaluative. The mediator would hear both parties on their respective positions on the ancillary matters, and on the basis for their positions. He would then give an assessment of the case based on principles of law as applied to the facts of the case.

10 Contested divorces and ancillary matters are referred for mediation most often by judicial officers during the conduct of status conferences and pre-trial conferences. Apart from the requirement of consent of both parties, there are no hard and fast criteria used by the judicial officers in deciding whether to refer the matter for mediation. However, generally, the judicial officer would take into consideration, inter alia, the following factors when making the referral:5

(a) The capacity of the parties to participate safely and effectively on their own behalf;

(b) Current...

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