Topic 19 and 20: Arbitration

Question 1

Name one way the courts incentivise parties in a litigation to consider mediation.

Answer 1

Courts will consider the losing party’s conduct (its willingness to consider mediation) when awarding costs.

Question 2

How did ADR begin?

Answer 2

It started as a global movement with the 1976 Pound Conference in the US - the full name is “Causes of Popular Dissatisfaction with the Administration of Justice”

In Singapore, arbitration was a long-established part of the legal system.

Question 3

How did arbitration start in Singapore?

Answer 3

The Arbitration Act was enacted in Singapore in 1953, and the International Arbitration Act in 1995

Arbitration Act and Order 69 of the Rules of Court provides for domestic arbitration.

International Arbitration Act and Order 69A of the Rules of Court provides for international arbitration.

Question 4

Did the Pound Conference start arbitration?

Answer 4

No, arbitration existed before the Pound Conference. But it led to a large push towards alternative dispute resolution.

Question 5

ADR 1.0

Answer 5

Alternative dispute resolution:
A search for alternatives to litigation.
Arbitration, mediation, negotiation discovered to be alternatives to litigation.

Question 6

ARD 2.0

Answer 6

Appropriate dispute resolution:
Focus is on lawyer choosing the method that best advances client’s interests, based on client’s needs and means. All methods are considered.

Question 7

ADR 3.0

Answer 7

Amicable dispute resolution:

Concern that some lawyers are too adverse to litigation/arbitration, and this may be bad for client

Question 8

Arbitration

Answer 8

Adjudicatory process
Arbitrator is like a judge, so there is certainty of outcome. Parties are bound by arbitration award.

Uses a legal rights based paradigm
Backwards looking
What did parties do?

Question 9

In arbitration, the “judge” is called an _________

Answer 9

Arbitrator

Question 10

What does it mean backward looking?

Answer 10

Arbitration is not concerned with parties relationship going forward.

It is concerned with what happened in the past: Who infringed a legal right and who needs to be compensated.

Question 11

Differences between arbitration and litigation

Answer 11

In arbitration, the arbitrator is a subject matter expert.
In litigation, the judge may not be an expert in the field of law.

In arbitration, there are less procedural rules.
Parties can

In arbitration, the proceedings are confidential and not made public.

In arbitration, some issues cannot be arbitrated. Issues pertaining to REM, divorce, constitutional and criminal law cannot be dealt with in arbitration.

Arbitration is usually cheaper and faster.

Question 12

What is the one overriding rule in arbitration?

Answer 12

Subject to the express wishes of the parties, the tribunal can run the case any way he likes, so long as due process is given.

Question 13

What are the other differences in arbitration?

Answer 13

Law of evidence does not apply to arbitration

Question 14

In civil law countries, they have codes of civil procedure that apply to arbitration as well. True or false?

Answer 14

True

Question 15

Difference between domestic and international regimes of arbitration

Answer 15

In international arbitration, there is less degree of court intervention throughout the arbitration process. In domestic arbitration, litigating domestically is a stronger possibility.

There is a default regime that applies depending on the parties’ situation, but parties can agree to switch regime.

Question 16

Similarities between arbitration and mediation

Answer 16

In litigation, arbitration and mediation, there is a neutral 3rd party.

Question 17

Differences between arbitration and mediation

Answer 17

In mediation, there is no adjudicator (like a arbitrator or a judge). The mediator is only a guide.

In mediation, the atmosphere is more amicable than adversarial

In mediation, the process is more informal and flexible

Forward-looking and backward-looking. Find a solution that fulfills the interests of both parties.

Question 18

Mediation is generally voluntary, but compulsory for divorcing parties with children. True or false?

Answer 18

True.

s 50(3A), Women’s Charter

Question 19

What is the advantage of mediation?

Answer 19

Parties craft solution themselves, so settlement agreement (if possible) is more likely to hold

Question 20

How is mediation encouraged in Family law?

Answer 20

Order 59 Rule 5
Court in making costs order will take into account the parties conduct in attempting to resolve matter by mediation or other means of dispute resolution.

Court can order mediation in divorce proceedings where there is children

Question 21

What are the three types of mediation styles?

Answer 21

Facilitative;
The focus is on the interests of both parties.
Ask why each party wants something.
To find win-win solutions where possible

Transformative
The focus is also on interests, but also includes improving the party’s spiritual and emotional well-being.

Evaluative
The focus is also on interests, but the focus is on evaluating the strengths of each party’s defense.
Judge is a mediator

Question 22

What are other forms of ADR?

Answer 22

Negotiation
Neutral evaluation
Mediation and arbitration

Question 23

What is mediation?

Answer 23

A process in which a mediator (i.e. a neutral third party) helps you and the other party negotiate for a settlement of your dispute.

The mediator does not focus on who is at fault for the dispute. Instead, the mediator will help you and the other side discuss and reach a solution that will meet the concerns of both parties.

Question 24

Aside from mediation in the State Courts Centre for Dispute Resolution, where else can parties seek out mediation services?

Answer 24

The Law Society Mediation Scheme (LSMS) is a quick cost-effective and user-friendly way to resolve civil disputes without having to commence with litigation or arbitration.

Community Mediation Centre

Singapore Mediation Centre

Question 25

What is neutral evaluation?

Answer 25

It is an early assessment of the merits of the case by a judge in the State Courts Centre for Dispute Resolution.

Parties’ lawyers will present the case to the judge, who will review the evidence and provide an evaluation based on the merits of the case.

The evaluation can be binding or non-binding, depending on what the parties choose.

Question 26

What is arbitration

Answer 26

In arbitration, there will be a determination of who is at fault. However, the decision is made by a private individual, the arbitrator, instead of a judge

Question 27

When can the Court make an order to refer a case to mediation/arbitration?

Answer 27

When both parties consent to do so; or

When the Court is of the view that doing so would better resolve the dispute between both parties

Question 28

Arbitration is more expensive than mediation. True or false?

Answer 28

True

Question 29

Parties dislike mediation because there is no guaranteed outcome. True or false?

Answer 29

True

Question 30

Parties dislike arbitration because there are limited avenues of appeal. True or false?

Answer 30

True

Question 31

Parties like going for trial because it can resolve their disputes faster. True or false?

Answer 31

False. ADR tend to resolve disputes quicker.

Question 32

Parties like going for arbitration because it can resolve their disputes faster than going for trial. True or false?

Answer 32

True

Question 33

Parties like going for mediation because it can resolve their disputes faster than going for trial. True or false?

Answer 33

True

Question 34

In mediation, both parties can control how they would like their dispute to be resolved. True or false?

Answer 34

True

Question 35

In arbitration, both parties can control how they would like their dispute to be resolved. True or false?

Answer 35

False (third-party decides)

Though, they can control the procedure / choose the arbitrator that they think would best resolve their dispute

Question 36

Lawyers in Singapore must act in good faith throughout the alternative dispute resolution process.. True or false?

Answer 36

True