Singapore
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Yes. Singapore is an active and strong proponent of ADR. Mediation, conciliation, neutral evaluation and expert determination are ADR methods commonly available in Singapore. See, for example, “Alternatives to trial”.
Mediation is where a neutral third party guides the parties to the dispute to find their own solution that meets both parties’ concerns.
Conciliation involves a neutral third party with expertise in the subject matter suggests possible solutions. The parties to the dispute can then decide how to come to an agreement based on those suggestions.
Neutral Evaluation is where a neutral third party with expertise in the subject matter provides an early assessment of the case, and estimates the likelihood of success at trial.
Expert Determination is where an independent expert will give an opinion, whereupon the parties to the dispute can then decide whether to agree to a settlement based on the expert’s opinion.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
The limitation period for bringing a claim is not affected by whether a claimant enters into any form of ADR.
Engaging in ADR does not automatically result in ongoing Court or arbitral proceedings being stayed. The parties may however write to the Court/Tribunal (as the case may be) to seek revised procedural timelines or a temporary stay to accommodate the ADR process. If the parties execute a binding settlement agreement, they may then seek to discontinue the relevant proceedings.
Further, under s 12 of the Mediation Act 2017 (the “Mediation Act”), where a mediated settlement agreement has been made in a mediation in relation to a dispute for which no proceedings have been commenced in a court, any party to the agreement may, with the consent of all the other parties to that agreement, apply to a court to record the agreement as an order of court. A mediated settlement agreement that is so recorded as an order of court may be enforced in the same manner as a judgment given or an order made by a court.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
No. ADR is generally not compulsory in Singapore, but there are some exceptions such as in some family proceedings.
In early 2023, Singapore was planning to make mediation mandatory for three categories of disputes, being:
- noise-related disputes between neighbors
- disputes which have resurfaced after mediation at the Community Mediation Center, and
- disputes where the parties want to file a claim with the Community Disputes Resolution Tribunal
The specific processes in relation to, among other things, enforcement of agreements arising out of such mediations, are currently being developed. A party to civil proceedings before the court is under a duty to consider amicable resolution of that party’s dispute before the commencement, and during the course of, any action or appeal (O. 5, r. 1(1) of the Rules of Court 2021 (Cap 322, R 5, 2021 Ed) (the “ROC 2021”).
Before a party commences litigation proceedings, it is to make an offer of amicable resolution (such as an offer to settle the action or to resolve the dispute other than by litigation (including mediation)) in writing to the counterparty unless there are reasonable grounds not to do so (O. 5, r. 1(2), read with O 5, rr. 1(3) and 2(1) of the ROC 2021). A party must not reject an offer of amicable resolution unless the party has reasonable grounds to do so (O. 5, r. 1(4) of the ROC 2021). The court may order the parties to attempt to resolve the dispute by amicable resolution (O. 5, r. 3(1) of the ROC 2021). If a party informs the Court that it does not wish to attempt to resolve the dispute by amicable resolution, the court may order that party to submit a sealed document setting out the party’s reason for such refusal(O. 5, r. 3(3) of the ROC 2021). The court will only open that sealed document after the determination of the merits of the action or appeal, and refer to the contents of that document in relation to any issue on costs (O. 5, r. 3(4) of the ROC 2021).
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes. Commercial agreements governed by Singapore law commonly include ADR clauses whereby the parties thereto agree to refer any dispute(s) arising in relation to their agreement to mediation, negotiation and/or other ADR processes. Under s 8 of the Mediation Act, where any party to a mediation agreement institutes any proceedings before a court against any other party to that agreement in respect of any matter which is the subject of that agreement, any party to that agreement may apply to that court to stay the proceedings so far as the proceedings relate to that matter. The Singapore Courts actively support ADR and will not hesitate to uphold a mediation agreement in appropriate circumstances. In Maxx Engineering Works Pte Ltd v PQ Builders Pte Ltd [2023] SGHC 71, the Court made an order to compel a party in breach of a mediation agreement to perform its contractual obligation to refer the dispute to mediation.
When does ADR generally take place?
ADR can take place at any time, including before court/arbitral proceedings are initiated, during those proceedings and up to when an appeal from the first-instance court decision is disposed of. Considerations that would guide when to initiate ADR processes include, among other things, when the issues in dispute become clear to both parties. The Singapore Mediation Center also takes an active step in sending invitations to mediation to the parties after an action has been filed in the High Court.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes. ADR in Singapore is generally confidential and protected by “without prejudice” privilege. For example, under s 9 of the Mediation Act, subject to very limited grounds, a person must not disclose any mediation communication to a mediation to any third party to the mediation. Further, under s 10 of the Mediation Act, a mediation communication is not to be admitted in evidence in any court, arbitral or disciplinary proceedings except with the permission of a court or an arbitral tribunal. To avoid doubt, the parties to any ADR proceedings may enter into separate confidentiality agreements and/or undertakings.
Does the output from ADR create precedents?
No.
Who bears the costs of ADR?
Generally, the costs of the ADR (for example administrative/venue/mediator’s fees) would be shared between the parties. Nonetheless, it is open to the parties to agree to a different arrangement in relation to ADR fees either before the mediation, or as part of their settlement agreement.
Is your jurisdiction subject to any specific rules for cross border ADR?
Yes. Singapore has ratified The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention). On September 12, 2020, the Singapore Convention on Mediation Act 2020 (the “SCMA”) came into effect. The SCMA gives effect to the Singapore Convention and implements Singapore’s obligations under the same.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
There is no legal obligation or requirement for mediators in Singapore to be admitted as advocates and solicitors of the Supreme Court of the Republic of Singapore, or otherwise legally trained and/or qualified.
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