Singapore has embraced mediation as an alternative dispute resolution method, including recent amendments to law and proposed process enhancements for the mediation of employment claims and telecommunications and media disputes. Organisations should consider updating their contracts and equipping key representatives with mediation skill sets to stay current and prepared for the growing wave of mediation referrals.
Mediation is a consensual user-centric process where parties agree on terms, usually a compromise, to resolve a dispute. This focus on the parties’ agreement makes mediation a far less adversarial process than litigation or arbitration, which in turn increases the chances of parties salvaging and continuing their commercial relationships. Simply put, through mediation, parties often can achieve a quicker and more amicable solution than if they go to court.
Mediation also is more accessible in terms of cost and participation. Mediation preparation and participation costs are typically lower than those for litigation or arbitration. And mediation does not require specialised knowledge of legal jargon or procedure, making it easier for parties to fully understand and participate in the process. In fact, the Law Society Mediation Scheme—the latest addition to the mediation landscape in Singapore—does not require a member of the public to hire a lawyer for mediation.
Mediation increasingly has become the “go-to” dispute resolution option for various industries. Private mediation was especially boosted by the Mediation Act, which allows for settlement agreements that have been entered into in a mediation to be recorded as an order of court. An example of this is the Strata Titles Boards’ mediation of disputes between subsidiary proprietors and management corporations, or between subsidiary proprietors in respect of property or collective sale orders. These disputes often involve common issues such as water leakage, property alteration complaints, or the supply of information by the management corporation.
Below is a snapshot of two areas where mediation has recently entrenched or is predicted to entrench as a preferred or mandated mode of dispute resolution:
In February 2017, the Telecommunications Act was amended to establish an alternative dispute resolution scheme for the telecommunication and media industries. This was followed in January 2018 by the Infocomm Media Development Authority (IMDA) announcing that it would be proposing to mandate a two-stage mediation and adjudication scheme for the resolution of disputes with telecommunication and media service providers (the Scheme).
IMDA’s current proposal is for the Scheme to apply to individual customers and small businesses and to service providers that have a direct billing relationship with consumers in respect of disputes relating to service agreements, billing arrangements, or incurrence of one-off charges with the service providers. IMDA’s consultation closed on 21 March 2018 and received 14 responses from various parties, including the Consumer Association of Singapore, M1 Limited, and Singapore Telecommunications Limited. We are of the view that mediation of such quantifiable disputes is likely to be approved and that the Scheme will be put forth for approval within the year.
In employment, the most common issues are salary- and dismissal-related claims. Although these often occur in tandem, mediation is currently mandatory only for statutory and contractual salary-related disputes under the Employment Claims Act through the Tripartite Alliance for Dispute Management. Dismissal-related claims are heard by the Minister for Manpower.
The public consultation on the review of the Employment Act (which closed on 15 February 2018) called for, amongst other things, feedback and suggestions on how to streamline this process for the benefit of employees and employers alike. Although the results have not yet been published, we believe that mediation is firmly on track to becoming a compulsory first step in the resolution of employment disputes in 2018 and going forward. Moreover, we predict that both salary- and dismissal-related claims will be considered together and channeled through the same dispute resolution process of mediation as a first step, with referral to a common tribunal in the event that mediation fails.
This trajectory of increasing mediation uptake and referral is expected to continue, and likely will explore new ways of incorporating mediation into the current dispute resolution mechanisms, including the potential for offering online resolution within the court dispute resolution system.
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*A director of Morgan Lewis Stamford LLC, a Singapore law corporation affiliated with Morgan, Lewis & Bockius LLP