Addressing the Singapore- India Mediation Summit Chief Justice of Singapore, Sundaresh Menon stressed on the multiple benefits of adopting mediation as a mainstream means of settling disputes amicably.

"Mediation has come to experience real growth as a key mechanism for cross border commercial disputes"- Sundaresh Menon

Outlining the evolution of mediation in Asian markets, India and Singapore in particular, Justice Menon highlighted the increasing use of mediation for resolving cross border and commercial disputes. 

"This trend bears particular significance for all of us here, because a robust and trustworthy system of dispute resolution is integral to the strong ties in trade and commerce that existed between our jurisdictions, investors and businesses, he said". 

Taking the audience back to the early 90s when a conscious decision to revive the practice of mediation was made in Singapore. At this juncture, Justice Menon pointed out that historically both India and Singapore shared a common tradition of resolving disputes through mediation in the panchayat governance system.  

While elaborating on the objectives that prompted a relook at mediation as a means for mainstream dispute resolution Justice Menon emphasized on the ease, efficiency and flexibility that mediation offers while keeping the confidentiality element intact.

Mediation's ability to enable the parties to manage and resolve differences without taking adversarial and overly hostile positions that result in zero sum win loss, outcomes, cannot be understated, he added. 

Realizing the potential mediation brought into the foray, Justice Menon took the viewers through the steps taken to establish a formal structure for mediation within the domestic legal landscape of Singapore in the early and late 90s. Prominent ones included establishing Singapore Mediation center for commercial disputes in 1997 and setting up community mediation centers across multiple locations throughout Singapore.

While the first phase helped in reviving the culture of mediation, the domestic experience and sustained efforts paved the way for the second arm of mediation's evolving journey in Singapore. Justice Menon touched briefly on the key reforms brought to internationalize the mediation services and institutions in the country. 

Major highlights during the second phase pointed by Justice Sundaresh Menon are as follows:

Working Group comprising of local and international luminaries in the field of mediation in 2013.

Establishing the Singapore International Mediation Center as a private nonprofit organization with the specific objective of providing world class, international commercial mediation services in 2014. 

Mediation Act of 2017, which forms the cornerstone of the mediation framework.

"Although the SIMC is still a relatively young institution, it has today received more than 117 mediation violence involving parties from nearly 40 jurisdictions, with a total dispute value exceeding 4.4 billion US dollars." Justice Menon stated to highlight SIMC's unparalleled work within a short span of time.

3rd arc of mediation journey and the key drivers taking mediation forward

#Singapore Convention on Mediation

Hailing the developments that have happened within a short span of time in the area of mediation, the Chief Justice of Singapore mentioned that the 3rd arc is a work in progress. However, he believes that the Singapore Convention on mediation coupled with COVID 19 pandemic will accelerate the adoption of mediation as a mainstream dispute resolution practice.

"The most important contribution of the mediation convention is the confidence, it provides that international commercial mediation can result in binding, and internationally enforceable outcomes"- Justice Sundaresh Menon.

Justice Menon took the audience through the findings of a survey conducted by the Singapore International Dispute Resolution Academy last year wherein enforceability was  was identified as the top factor influencing the respondents choice of dispute resolution mechanisms. The survey found that while users valued mediation for conferring speed and cost advantages over other modes of dispute resolution. It lost its edge when it came to enforceability.

With the mediation convention in place, users can now have the best of both worlds, speed, and cost savings with widespread enforceability. This is a compelling proposition for businesses seeking to lower the legal risks of their international ventures, and investments, while also retaining their expenditure.

#COVID 19

While COVID 19 pandemic has caused unprecedented disruptions in all aspects of life, industries have been left grappling left grappling with the uncertainties arising from disrupted supply chains, delayed payments, and operational difficulties. In this context enforceability  of legal rights has become all the more important. However, adversarial means of dispute resolution not only bring a higher legal costs and loss of time. It also carries with itself the risk of alienating the very same long term business relationships that are going to be critical for business recover. 

And even if one prevails in such proceedings. There is no guarantee in these times that the losing party will be able to pay any damages that might have been awarded in these circumstances.- Justice Menon.

From SG United Mediation Initiative to SIMC's Protocol, Chief Justice Menon talks about the initiatives launched during COVID.

Stressing on the advantages mediation offers in terms of helping businesses in these uncertain times, Chief Justice Menon spoke briefly about the Singapore Supreme Court's SG United mediation initiative. The scheme launched in association with the Singapore Mediation Centre.  The scheme provides for the referral of suitable cases of the Supreme Court to the SMC for mediation with the parties concerned, and at no charge. Not only this, assisted, many of the parties to settle their disputes quickly and amicably, and focus of the more urgent priority of running their businesses. It also helped the courts, manage a backlog of matters that had arisen in the wake of the lockdowns brought about because of the pandemic in all mediation was conducted under the scheme for more than 100 cases of which around 14% was successfully mediated. And this resulted in substantial savings of priorities that would otherwise have been taken out in the High Court for international matters.

The SIMC also introduced the COVID-19 protocol in May 2020 under the protocol mediations could be organized within 10 days, and conducted at reduced fees. The protocol also lays down procedures for online issues. In response to the travel restrictions imposed across nearly all major jurisdictions. Further the protocol provides that outcomes will be enforceable, either as court orders under the mediation or the mediation convention in countries that have ratified, or approved the treaty.

If the Singapore Convention helped to raise awareness of and confidence in mediation, the COVID-19 pandemic has catalyzed a greater willingness to undertake mediation and, in this process, to discover its real value as an efficient, effective, and enforceable mechanism for dispute resolution Justice Sundaresh Menon said.

I understand, for instance, that compared to 2019, the SIMC’s caseload in 2020 nearly doubled. And its caseload for the first half of 2021 is already almost that of the whole of last year, he added while taking it as a sign of mediation gaining momentum.

We stand  at the cusp of mediation’s golden age: Justice Sundaresh Menon

When one considers the other factors at play, including the rise of Asian corporates, our cultural affinity for mediation, and a growing appreciation for the inherent value of dispute prevention and containment, it seems reasonable to suggest that we stand today at the cusp of mediation’s golden age.

As we look ahead to the future of mediation, we should remind ourselves that legal services – as with all other services – must ultimately be designed with the user at the heart. And for international mediation to come into its own, it must meet the evolving needs of cross-border businesses. 

Justice Menon's two trends that will likely shape the future of mediation

The first is that, at least in the near term, the real attraction of mediation will lie in its inherent flexibility and consequent ability to complement, rather than compete with, litigation and arbitration. While mediation might well come to thrive as a standalone dispute resolution mechanism, especially as the enforceability of mediated outcomes ceases to be a factor with the growing acceptance of the Singapore Convention, the current state of its reception suggests that its popularity is at the highest when deployed in combination with other adjudicative methods. In a recent 2021 International Arbitration Survey, 59% of the respondents expressed a preference for using arbitration in combination with other forms of ADR, such as mediation, to resolve cross-border commercial disputes. This was a significant increase over the corresponding figure in the 2018 survey at 49% and the 2015 survey at 34%. This clearly suggests a growing demand for holistic and tailored dispute resolution frameworks that are able to operate in an integrated way, matching the right type of procedures to the right type of disputes. 

The second trend we can anticipate, perhaps in the longer term, is the greater integration of mediation into our legal systems as a means of serving the rule of law. 

While mediation is largely an out of court process, it is a misconception to suggest that mediation hurts the rule of law by taking the law out of the hands of the courts. Rather, the rule of law requires that there be effective access to justice, and this can take place outside the confines of a courtroom. By enhancing the prospect of achieving final and acceptable outcomes when disputes arise, and by providing an often more timely and cost efficient alternative to the other methods of dispute resolution, mediation offers a real and vital option in helping to address legal needs that might otherwise go unmet. We can see this in our experience with the use of mediation during the pandemic as it offered the parties a more conciliatory and expeditious option of dispute resolution that was better suited to their priorities in a challenging period. Indeed, in the aftermath of the pandemic, there is value in considering the formalisation and expansion of some of these mediation programmes that will help us manage and alleviate the court’s caseload.