As mediation becomes a prominent feature in the Singapore legal and commercial landscape, one common question that arises is when, and under what circumstances, should one consider mediation?
Timing is everything
“Observe due measure, for right timing is in all things the most important factor,” the Greek poet Hesiod wisely advises us. Deciding on the right time to mediate then, depends on several things, including the context surrounding the dispute, the type of dispute and the parties involved.
In general, a dispute stands a better of chance of being resolved when referred to mediation at an early stage. Take relational cases for example. If parties go to mediation at too late a stage, there may have been too much acrimony and bad faith generated to achieve a peaceful settlement. The parties might also be reluctant to settle because of the legal costs that have already been incurred. In other words, they have invested too much time, emotion and resources and have the mindset to “go for broke”.
If the dispute has already gone to court, then sometimes mediating at too early a stage could be more bane than boon. For example, the parties may need time to cool-off before they are in the right frame of mind to negotiate again. Waiting six months after court proceedings may be a wise move in this case.
Court-based vs private mediation
When to mediate also depends on the type of dispute in question. In Singapore, where the mediation movement is largely institutionalised, the two main categories of mediation practised here are court-based mediation and private mediation. The Singapore Academy of Law explains in an article
that “court-based mediation is mediation that takes place in the courts after parties have commenced litigation proceedings. This type of mediation is mainly carried out by the Subordinate Courts and is coordinated by the e@dr centre, also known as the Primary Dispute Resolution Centre (PDRC).” Private mediation in Singapore is carried out by agencies like the Singapore Mediation Centre and private practices like HMG.
The State Courts of Singapore offer the following guidance
to help the public decide when it is best to mediate (vs litigate). They say that mediation may be effective in the following situations:
- The parties know each other and want to save or maintain their relationship.
- There is a need to reach a quick end to the dispute.
- The parties want to avoid publicity or to maintain confidentiality.
- The law does not provide a solution that meets the parties' real interest. For instance, while a suit may appear to be for breach of contract, there may be communication issues amongst the disputing party that have to be resolved. In another illustration, party may file a suit for defamation, but he or she may really be seeking an apology which is not a normal legal remedy given by the courts.
- The parties want to save legal costs.
The Courts advise that mediation may not be appropriate for certain disputes, for instance, where:
- There is a need to establish a legal precedent in court. For instance, a company may need a court decision concerning how to interpret a clause in its standard contract.
- The key representatives or decision makers are not willing to participate in mediation.
- One or more parties may not be attempting mediation in good faith (e.g. to gather more information without any intention of exploring a settlement).
- One or more parties wants public attention to be drawn to the dispute.
While there is no hard and fast rule as to when to mediate, the efforts of the judiciary have shaped a culture that strives for early dispute resolution. Whether it is ad hoc mediation for community and relational disputes, or a formalised tool to manage complex commercial cases, most practitioners would agree that mediation is effective and highly successful when used in the early stages of the judicial process.
Dora Yip, HMG Research Associate