Singapore Ups Mediation Game
by Steffen Pedersen
Singapore is nothing if not innovative in developing itself as a dispute resolution hub. The strong support of a pro-active government and legislature enhances this ability to innovate.
The latest innovation came into force on Wednesday, 1 November 2017 in the shape of the Mediation Act 2017 (the “Act”). The Act applies to mediation agreements which specify that Singapore law or the Act is to apply, or to mediations conducted wholly or partially in Singapore.
What’s innovative about mediation you might ask?
In short, the Act contains a unique mechanism which allows for direct enforcement of mediated settlement agreements. This mechanism is contained in Section 12 of the Act, which provides that mediated settlement agreements can be registered as Orders of the Singapore High Court and thereby become enforceable as judgments.
This is a very welcome innovation because until now if a party to a mediated settlement agreement did not honour it, the aggrieved party would only be able to enforce after commencing a claim for breach of contract in accordance with the dispute resolution clause in the agreement and obtaining an award or judgment.
By enabling parties to avoid the potentially significant time and costs of obtaining an award or judgment, the Act has made mediation a much more attractive proposition.
Is there a catch? Not really. However, it should be noted that it is not every mediated agreement that will be directly recordable as an Order in the Singapore High Court. As already mentioned, the Act only applies to mediation agreements which specify that Singapore law or the Act is to apply, or to mediations conducted wholly or partially in Singapore.
Certain other conditions must also be met. The key ones are:-
- The mediated settlement agreement must be in writing and signed by (or on behalf of) all the parties to the agreement;
- All the parties must consent to the agreement being recorded in court;
- The application to record the agreement must be made within 8 weeks of the agreement being concluded (subject to the court’s ability to extend such period); and, most importantly,
- The mediation leading to the agreement must either be administered by a “designated mediation service provider” or conducted by a “certified mediator”.
A “certified mediator” is defined in the Act as a mediator who is certified under an “approved certification scheme”. On 31 October 2017, by notice in the Gazette, the Minister for Law designated the Singapore International Mediation Institute Credentialing Scheme as the only “approved certification scheme”.
The Minister of Law also designated the Singapore International Mediation Centre, Singapore Mediation Centre, Tripartite Alliance for Dispute Management and the World Intellectual Property Organization Arbitration and Mediation Center as the only “designated mediation service providers” under the Act.
Parties therefore have a lot of hoops to jump through, not least be sure they appoint the right mediator or proceed in the right institution, if they wish to take advantage of the Act’s benefits.
It remains to be seen whether international parties will opt to press the red button and bring their mediation to Singapore, the designated centres or use certified mediators for their mediations as a result of the Act coming into force. Time will tell. If uptake is slow, no doubt the Minister for Law may simply add more institutions and service providers to the approved list, including perhaps first-tier overseas ones.
Whatever happens, as first mover, Singapore has, at the very least, reaffirmed its position as key driver and innovator in the legal field. Long may it continue.
If you have any question about dispute resolution in Singapore, please contact Steffen Pedersen on +65 8218 8854.