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Launch of the SMU - Centre for Dispute Resolution
16 April 2009
Speech of Chief Justice Chan Sek Keong
Prof Furmston, Dean of the Law Faculty,
Prof Macduff,
Ladies and gentlemen,
The Dean has kindly invited me to say a few words this morning to launch the SMU - Centre for Dispute Resolution (the “SMU-CDR”). I am delighted to do so. I start by congratulating SMU in setting up the SMU-CDR. It is a great idea whose time has come. There are other dispute resolution centres elsewhere , particularly in North America and Australia, but they do not speak from a Singapore or Asian perspective. It is important that we have our own centre in Asia to study the different legal-political structures and cultural attitudes to conflicts management and resolution from an Asian perspective.
2. Alternative Dispute Resolution or ADR covers arbitration and mediation, which are its mainstay processes. It also includes old-fashioned negotiation, conciliation and expert-determination, usually on technical issues. The SMU-CDR therefore has its work cut out, given the absence in Singapore of a dedicated centre to study, teach and research these matters in a dynamic Asian economic and social environment. I look forward to SMU-CDR becoming the research leader in ADR in the region.
3. Last week, I attended a meeting of the Commonwealth Chief Justices in Hong Kong to discuss various topics of interest. One item on the agenda was, of course, mediation as a means of reducing the caseload of the courts. From the discussion, it appeared that mediation is now the rage in many small jurisdictions, especially in Africa and the West Indies. One Chief Justice from an African jurisdiction remarked that, until the British came, mediation was the normal mode of dispute resolution among Africans. That observation, I think, might also apply to Singapore society in the early 19th century. Disputes among Chinese merchants in early Singapore were probably mediated by the clan associations. Litigation in the early days might even have been the alternative dispute resolution process to mediation, until that was reversed by the strengthening of the legal system and the increase in the number of lawyers and their influence in the commercial life of the community.
4. But the role of mediation has its doubters even today, especially among lawyers in jurisdictions which have started late to embrace mediation, and who find it difficult to think beyond their own expertise and professional earnings. A culture of resolving disputes sensibly in a timely and cost effective manner often takes time to establish its roots within the legal community with a long history of litigation as the normal mode of dispute resolution. In fact, some of the Chief Justices who spoke on the subject at the meeting in Hong Kong are still sceptical about the legal profession warming up to mediation. The Hong Kong Judiciary has recently rolled out its Civil Justice Reforms, one of which gives powers to the judges, through case management, to encourage the parties to settle suitable disputes by mediation, with costs orders as the sanction for refusals to do so. The imposition of sanctions to encourage or promote mediation is, in a sense, a self-contradiction since mediation is consensual in nature. Hence, costs orders will not work in the long term. Lawyers will just advise clients who do not wish to mediate to pretend to agree to mediation just to avoid costs orders.
5. In her Hamlyn Lecture delivered a few months ago on the subject Judging and Justice, Dame Hazel Genn, DBE, QC, , who is a member of the Judicial Appointments Commission and the dean and professor of socio-legal studies in the faculty of law at University College, London, delivered the Hamlyn Lecture on the subject in which she more or less trashed the whole idea of ADR, and asserted that it is inimical to the civil justice system in England. Let me quote you a few of her statements in this speech:
(a) The system has been allowed to deteriorate
“We are witnessing the decline of civil justice – the downgrading of the importance of civil justice…and the diversion of civil cases to private dispute resolution, accompanied by an anti-litigation/anti-adjudication rhetoric that interprets these developments as socially positive.”
“The anti-law story suggests that society is in the grip of a litigation explosion or compensation culture, and that the solution is to be found in … diverting cases away from courts, and pushing disputes into private resolution. The message is that ‘rights’ conflicts can be reframed as ‘clashes of interests’ which can be satisfactorily reformulated as ‘problems’ which can then be solved through mediation.”
(b) The disturbing role played by members of the judiciary
“A troubling feature of the crises in civil justice and the shift away from trials and adjudication is the active part that some sections of the judiciary in England and other parts of the world have played in supporting anti-litigation, anti-adjudication rhetoric and the diversion of cases out of the courts. While we might understand the hostility to civil justice of corporate and institutional defendants and, indeed, governments, it is more difficult to comprehend the contribution to this movement by influential sections of the judiciary. How have judges been co-opted by the government to assist in downgrading civil justice?”
(c) ADR as the solution
“Some commentators have argued that the purpose of the reforms was to provide more access and less justice. But in fact, it is hard not to draw the conclusion that the main thrust of modern civil justice reform is neither about more access nor more justice. It is simply about diversion. About less law and the downgrading of the civil justice system. This seems to be as true for large commercial cases as for the everyday lower value problems of citizens. The push for less law is supported by the growing ADR profession which professes a mission to rid society of conflict, but which is more interested in the profits to be made from large commercial dispute settlement than the small change of the county courts.”
(d) Monetary settlement
The outcome of mediation is not about JUST settlement, it is just about settlement.”
(e) ADR
“Mediation without the credible threat of judicial determination is the sound of one hand clapping”.
These are very strong statements of disapproval of mediation in the court process. If they represent the general sentiments of a large proportion of the legal community in England, I can see why promoting mediation in England would be like one hand clapping.
6. Whatever the position is in England, in Singapore, we tend to do things our way. We try to make sure that both hands will clap before we embark on any new venture. Because we are a small jurisdiction, we can do things on a larger scale in a timely manner, and once we get the Government on board, we can do it on a national level. In less than 20 years, we have, I think, implanted mediation into the genetic makeup of a large number of our lawyers and also members of the various professional, business and industry groups. We believe that mediation is positive in relieving congestion in the courts, and in providing costs savings, “face” savings and other benefits. In addition, resolving social and community disputes through mediation will bring about a less fractious and more harmonious society. But we cannot succeed in these goals, unless we believe in mediation as a force for good.
7. Fortunately, the Government also believes in mediation as a force for good. The Community Mediation Centres Act was enacted in 1998 to facilitate the resolution of community disputes through mediation in our densely populated housing estates. Today, we have a plethora of mediation centres and service providers for practically all significant areas of commercial and social disputes. I have provided a list of these centres and service providers as an annex to this speech. Mediation and other forms of ADR should be hardwired into our social consciousness so that it will automatically become part of our social discourse and conflict management mindset.
8. Singapore has been active on the international mediation scene as well. In August 2007, the Asian Mediation Association (the “AMA”) was inaugurated at the Singapore Mediation Centre’s (the “SMC”) 10th Anniversary Celebrations, and this was done at the initiative of the SMC, with the Secretariat based in Singapore. The AMA brings together leading mediation centres in Asia to create a framework for regional cooperation and to promote the use of mediation to settle disputes of businesses operating in the region. AMA members now comprise the Delhi Mediation Centre, the Hong Kong Mediation Centre, the Indonesian Mediation Centre, the Malaysian Mediation Centre, the Philippines Mediation Centre and the SMC. In June this year, Singapore will be hosting the first AMA Conference to broaden and deepen the understanding of dispute resolution cultures and practices in Asia. I understand that 30 speakers from around the world will speak at the conference to a gathering of international ADR practitioners .
SMC Mediation
9. I would like to conclude this part of my speech by giving you some statistics on mediation in Singapore. The SMC was launched on 16 August 1997. Up to 31 March 2009, it has mediated 1422 disputes with a success rate of 73.77%. Apart from this, I understand that there is also a large number of ad hoc mediations that regularly take place. I would like to commend and thank all the members of the Bar and of the other professional, business and industry groups who have participated in these mediation sessions.
Subordinate Courts Mediation
10. Between June 1994 and December 2008, the Subordinate Courts mediated 80,016 civil cases with a success rate of 90.4% (i.e, 72,366 cases). For small claims, and these are additional figures, the number mediated between 2002 and 2008 was 6103, with a success rate of 85.7% (5229 cases). For maintenance cases, the number mediated between 2000 and 2008 was 3907, with a success rate of 97% (3785 cases). For family violence cases, the number mediated between 2002 and 2008 was 1126, with a success rate of 79% (891 cases). For other family court cases, including Syariah Court maintenance orders, the number mediated from 2006 up to 2008 was 1701, with a success rate of 89% (1506 cases). These results are really admirable. So, I would like to commend all the District Judges and judicial officers for their work. To them, we owe a huge debt for making life easier for these litigants.
Arbitration as an ADR process
11. Let me now say something about arbitration. Domestic arbitration has been around since the first Arbitration Ordinance was enacted in 1890. But, it has never been an important ADR process, presumably because there was no institution to encourage or promote it. Even today, attention is focused mainly on international arbitration. Every respectable dispute resolution lawyer wants to be an international arbitrator or counsel in an international arbitration. Yet, as you are aware, international arbitration did not really exist in Singapore until 1991 when the Singapore International Arbitration Centre (the “SIAC”) was established following Singapore’s accession to the New York Convention in 1986. What you may not know is that SIAC was set up as a result of a recommendation made by the Legal Services Working Group which submitted a report in 1985 to the Economic Committee which was then chaired by our current Prime Minister. The Working Group consisted of myself (as Chairman), Dr Thio Su-Mien, Dr Philip Pillai and Mr Andrew Ang (now Justice Ang). There were other recommendations but this was the only one accepted by the Government.
12. Arbitration has come a long way since 1991. Singapore is now widely regarded as a reputable centre for international arbitration for disputes originating from all over the world. Lord Hoffman paid us a compliment in 2007 when he warned the European Court of Justice of the consequences of a decision it made on injunctive relief against a second arbitration in another European forum. In the case of West Tankers v RAS Riunione Adriatica di Sicurta SpA [2007] 1 Lloyd’s Rep 391, Lord Hoffman said:
“If the Member States of the European Community are unable to offer a seat of arbitration capable of making orders restraining parties from acting in breach of the arbitration agreement, there is no shortage of other states which will. For example, New York, Bermuda and Singapore are also leading centres of arbitration and each of them exercises the jurisdiction which is challenged in this appeal.”
13. Since the establishment of SIAC in 1991, its annual caseload up to today has not exceeded 100. Going by this caseload, it may seem that our reputation as an arbitration centre exceeds our weight as a venue in international arbitration. But, I have been assured that this is not true. Anecdotal evidence suggests that the number of ad hoc arbitrations each year greatly exceeds the caseload of SIAC. This may be another area for useful research for the SMU-CDR. In a 2007 report published by the International Chamber of Commerce (the “ICC”), the International Court of Arbitration (the “ICA”) ranked Singapore as the top city in Asia for ICC arbitrations and one of the five most popular arbitration venues alongside Paris, London, Geneva and Zurich . Soon, SIAC will move its operations to Maxwell Chambers, which will have state-of-the-art facilities (including a restaurant) for international arbitration. Maxwell Chambers will also house institutions such as the International Centre for Dispute Resolution (the “ICDR”), which is the international arm of the American Arbitration Association (the “AAA”), the Permanent Court of Arbitration (the “PCA”), and the International Chamber of Commerce-International Court of Arbitration (the “ICC-ICA”) .
14. The ADR movement is less than 20 years old, but it has moved so fast that the more established ADR methods like arbitration and mediation are no longer viewed as “alternatives”. They now stand side by side with the traditional court process as different modes or models for resolving disputes. Maybe we should simply use the acronym “MDR” or Modes of Dispute Resolution to describe them collectively. The ADR scene in Singapore, as outlined above, is a lively and vibrant one today. It will continue to grow with the SMU-CDR to help it along.
The SMU-CDR
15. There is no doubt that it is in our interest to continue to develop Singapore as an ADR hub for the region. And this is where the SMU-CDR can play an important role as a centre dedicated to the study, teaching, research and promotion of ADR. The SMU-CDR has the potential to be the ADR research leader in the region. Equally important, as Justice V K Rajah has written in the foreword to a forthcoming publication by Prof Robert Merkin on our two Arbitration Acts:
“Every major arbitral jurisdiction needs to communicate its legislative and judicial policies clearly and comprehensively both to the arbitral community as well as to the commercial world. Ready and easy access to this information is also imperative. Academics play a vital role here, to the extent that they bridge the voids left by framers of the legislation, the courts and arbitrators. Lifeless statutory provisions and arid case law cannot by themselves adequately convey an overview to those seeking to understand the complexities and intricacies of the arbitration framework in Singapore.”
16. I understand that apart from fostering the study, teaching and research of ADR across all the Schools and Departments at SMU, the SMU-CDR will seek to co-ordinate with universities, professional, governmental, non-governmental and intergovernmental agencies in the promotion of collaborative forms of dispute resolution and access to justice. This will include forging links with overseas centres to ensure that Singapore in general and the SMU-CDR in particular are seen as a “node” in the international collaborative network of ADR practitioners and researchers. Also, together with the other ADR centres and drivers in Singapore, the SMU-CDR holds the promise of promoting and strengthening Singapore’s position as a dispute resolution venue of choice in Asia.
17 The SMU-CDR has set for itself a very ambitious programme to achieve its goals. I wish the SMU-CDR every success. If the SMU-CDR can implement its projects successfully, Singapore will have within 10 years an academic and research centre that all Singaporeans will be proud of.
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Annex
Mediation in Singapore
Sources of mediation services in Singapore include the following:
Commercial Mediation Services
1. Singapore Mediation Centre (the “SMC”)
In addition to conducting mediation under the SMC Mediation Procedure, the SMC has special schemes for certain case types:
a. Small Case Commercial Mediation Scheme (for cases below $30,000)
b. Medical Mediation Scheme (for resolution of healthcare disputes, also listed under item 22 below)
c. Singapore Sports Council’s Framework for Alternative Dispute Resolution for Sports or ADR Sports (as part of a med-arb procedure to resolve disputes relating to athlete selections, discipline and contracts, also listed under item 24 below)
Mediation Services of Professional, Industry, Trade and Consumer Bodies
2. Consumer Association of Singapore Mediation Centre
3. Financial Industry Disputes Resolution Centre (as part of a mediation-adjudication procedure)
4. Singapore Institute of Surveyors and Valuers Mediation Centre
5. Institute of Estate Agents Mediation Board
6. Law Society’s Cost Dispute Resolve (as part of a med-arb procedure)
7. Law Society’s SCMediate (mediation of disputes between law practices by Senior Counsel)
8. Mediation at the Association of Employment Agencies
9. Mediation at the Singapore Institute of Architects
10. Mediation under the Renovation Conciliation and Arbitration Procedure Programme of the Renovation and Decoration Advisory Centre
Courts and Tribunals Providing Mediation Services
11. Primary Dispute Resolution Centre at the Subordinate Courts
12. Family Relations Centre at the Subordinate Courts
13. Maintenance Mediation Chambers at the Subordinate Courts
14. Small Claims Tribunal
15. Syariah Court
16. Industrial Arbitration Court
17. Maintenance of Parents Tribunal
18. Strata Titles Board (as part of a med-arb procedure)
Mediation Services Provided or Supported by Government Agencies and Departments
19. Community Mediation Centres established under the Community Mediation Centres Act
20. Insolvency & Public Trustee’s Office
21. Intellectual Property Office of Singapore
22. Medical Mediation Scheme (a collaboration between the Ministry of Health and the SMC)
23. Ministry of Manpower, in particular, its Executive Mediation Unit
24. Singapore Sports Council’s Framework for Alternative Dispute Resolution for Sports or ADR Sports (an initiative spearheaded by the Singapore Sports Council and developed in collaboration with the Singapore National Olympic Council, the SMC, the Singapore International Arbitration Centre and the Singapore Institute of Arbitrators)
Others
25. Eagles Mediation and Counselling Centre
26. Family Mediation and Counselling Services provided by mosques
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