Topic 19 and 20: Arbitration Flashcards
Name one way the courts incentivise parties in a litigation to consider mediation.
Courts will consider the losing party’s conduct (its willingness to consider mediation) when awarding costs.
How did ADR begin?
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.
How did arbitration start in Singapore?
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.
Did the Pound Conference start arbitration?
No, arbitration existed before the Pound Conference. But it led to a large push towards alternative dispute resolution.
ADR 1.0
Alternative dispute resolution:
A search for alternatives to litigation.
Arbitration, mediation, negotiation discovered to be alternatives to litigation.
ARD 2.0
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.
ADR 3.0
Amicable dispute resolution:
Concern that some lawyers are too adverse to litigation/arbitration, and this may be bad for client
Arbitration
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?
In arbitration, the “judge” is called an _________
Arbitrator
What does it mean backward looking?
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.
Differences between arbitration and litigation
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.
What is the one overriding rule in arbitration?
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.
What are the other differences in arbitration?
Law of evidence does not apply to arbitration
In civil law countries, they have codes of civil procedure that apply to arbitration as well. True or false?
True
Difference between domestic and international regimes of arbitration
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.
Similarities between arbitration and mediation
In litigation, arbitration and mediation, there is a neutral 3rd party.
Differences between arbitration and mediation
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.
Mediation is generally voluntary, but compulsory for divorcing parties with children. True or false?
True.
s 50(3A), Women’s Charter
What is the advantage of mediation?
Parties craft solution themselves, so settlement agreement (if possible) is more likely to hold
How is mediation encouraged in Family law?
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
What are the three types of mediation styles?
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
What are other forms of ADR?
Negotiation
Neutral evaluation
Mediation and arbitration
What is mediation?
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.
Aside from mediation in the State Courts Centre for Dispute Resolution, where else can parties seek out mediation services?
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
What is neutral evaluation?
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.
What is arbitration
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
When can the Court make an order to refer a case to mediation/arbitration?
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
Arbitration is more expensive than mediation. True or false?
True
Parties dislike mediation because there is no guaranteed outcome. True or false?
True
Parties dislike arbitration because there are limited avenues of appeal. True or false?
True
Parties like going for trial because it can resolve their disputes faster. True or false?
False. ADR tend to resolve disputes quicker.
Parties like going for arbitration because it can resolve their disputes faster than going for trial. True or false?
True
Parties like going for mediation because it can resolve their disputes faster than going for trial. True or false?
True
In mediation, both parties can control how they would like their dispute to be resolved. True or false?
True
In arbitration, both parties can control how they would like their dispute to be resolved. True or false?
False (third-party decides)
Though, they can control the procedure / choose the arbitrator that they think would best resolve their dispute
Lawyers in Singapore must act in good faith throughout the alternative dispute resolution process.. True or false?
True
