Singapore Convention on Mediation Bill

Sir, I stand in support of the Bill. Mediation has been growing in prominence in Singapore’s dispute resolution landscape. One starting point for institutionalised mediation in Singapore could be then Attorney-General Chan Sek Keong’s speech at the Opening of the Legal Year 1996 on the need to look into mediation as a form of alternative dispute resolution and suggestion to establish a commercial mediation centre.

Since then, Singapore has made great leaps in institutionalised mediation.

In 2020, we now have a proliferation of mediation institutes, including the Singapore Mediation Centre, the Singapore International Mediation Centre, and the Singapore International Mediation Institute, among others. The Presumption of ADR applies for all civil cases under the State Courts Practice Directions, which requires cases to be referred to the most appropriate mode of ADR, including mediation, as a first resort. Finally, in November 2017, Singapore’s Mediation Act came into force. Amongst the significant developments introduced by this Act was allowing mediated settlement agreements to be recorded and enforced as court judgments.

It is thus a point of much pride that the progress Singapore has made on mediation domestically is now magnified on the international stage through the Singapore Convention on Mediation.

This Bill gives effect to the convention. Similar to the Singapore Mediation Act, it addresses the non-enforceability of mediated settlement agreements, which has been traditionally an obstacle to the adoption of mediation.

The 1958 New York convention, which streamlined the enforcement of foreign arbitral awards led to the boom in arbitration. It is hoped that the Singapore Convention on Mediation will now put international mediation on an even footing as international arbitration.

Sir, I have three clarifications on the Bill.

My first clarification centres on mediation standards. The proposed section 7(2)(e) provides that an international settlement agreement may be enforced if “there was a serious breach by the mediator who conducted the mediation that resulted in the international settlement agreement of the standards applicable to the mediator, or the mediation”.

There is currently no single set of mediation standards in Singapore or internationally. Mediation standards in Singapore are fragmented.

The Singapore Mediation Centre has a Code of Conduct for its mediators in sessions held by SMC. The Singapore International Mediation Institute has a Code of Professional Conduct applicable to any mediation that is mediated by a Singapore International Mediation Institute Mediator while the Society of Mediation Professionals (Singapore) is a group of mediators looking to develop a collective, localised and contextualised code of ethics.

Can Senior Minister of State share if there are plans to leave the industry to self-regulate in determining the applicable mediator standards or if MinLaw intends to take the lead in consolidating a single set of mediation standards?

My second clarification is in relation to section 7(2)(e), which states that only a "serious breach" by the mediator justifies the Court refusing to grant relief. The Convention and the Bill do not define what constitutes a "serious breach". A further hurdle, again, to determining what is a "serious breach" is the fragmented state of mediation standards. Can the Senior Minister of State share whether there are plans for the Ministry to provide guidance on what should constitute "serious breach" or will the definition be left entirely up to the Courts and mediation institutions?

My third clarification is on civil justice reforms. The Convention and the Bill enable the enforcement of mediated international settlement agreements. Domestically, the enforcement process for civil judgments is under review.

The Civil Justice Review Committee (CJRC)’s report noted that the "tools currently available for enforcing both monetary and non-monetary judgments are limited and unsophisticated". It further noted that the enforcement process is too court-centric and that there are limited modes of enforcing non-monetary judgments.

The CJRC recommended that the enforcement process for civil judgments be privatised, and that the Ministry study the problems and proposals further. It also suggested that the Ministry implement civil enforcement reforms separately from the rest of the civil justice reforms.

Can the Ministry share whether this review of civil enforcement procedures will affect the processes under this current Bill?

Sir, notwithstanding these clarifications, I stand in support of the Bill.

Mr Deputy Speaker, I thank Members for their broad support of the Bill as well as for the overall affirmation of the key role in which mediation can play and will be playing, in the context of Singapore's bid to have first-class international dispute resolution services and to maintain our status as a key hub for such services.

Let me get straight to addressing the queries raised by Members, starting with some broad overarching points as to the Convention and also as to the architecture of the Bill.

Mr de Souza asked about the progress of ratification of the Convention by other states, and when the Convention will come into effect. He also asked how Singapore has been engaging other countries in encouraging them to join us in seeking to first sign up to, and subsequently, ratify the Convention. As I outlined earlier, we require three states to ratify the Convention before the Convention becomes effective six months after the third state has deposited its instrument of ratification with the UN. Singapore hopes to be amongst the first countries to do so.

The overwhelming show of support for the Convention on the day it opened for signature is itself encouraging, and this suggests many other countries share our view that mediation is increasingly prevalent and overall helpful to the conduct of international business transactions. This gives us good basis to believe that the other States will also quickly ratify the Convention.

We understand several other countries are taking active steps towards their own ratification process. Like us, they will have to go through their own internal process and approvals such as, for instance, enacting domestic legislation to implement the obligations contained in the Convention, before they subsequently ratify the Convention.

On our end, what we have done is we have offered to host workshops for those other countries interested in finding out about the Convention, what it takes to have that implemented in their own domestic laws and also to be able to assist where required in their ratification processes as well.

The next Singapore Convention Conference is scheduled to be held in Singapore in September 2020, in conjunction with a Singapore Convention Week of events, so a series of other related events, conferences, sessions, including the competition that Mr de Souza spoke about earlier will take place in September 2020. This will also include workshops for interested government officials, legal and business communities, the academics and of course students from around the world and this will provide participants with an insight into the Convention and of course sharing information and thought leadership on the latest developments in not just mediation but also the broader realm of dispute resolution.

We are overall hopeful that the Convention will come into force soon.

Mr Patrick Tay asked if we foresee an increase in disputes resolved as a result of the Bill. Well, that is certainly the intention behind the Bill and the Convention. With the introduction of a framework to simplify the process for enforcement and invocation of international settlement agreements, we do expect to see an increase in the number of disputes resolved in accordance with this Bill, and slowly with the proliferation of mediation, increasingly as a viable option for resolving disputes, and also under the Domestic Mediation Act.

Several Members have already touched on these benefits, which include time and cost efficiency, greater party autonomy and control over the resolution of the disputes, how they frame disputes, how they frame the settlement of the disputes and the terms and conditions which go behind such agreements. Mediation also protects confidentiality between the parties and ultimately, also preserve a relationship which may have taken years if not decades to build and that is the overarching benefit in engaging mediation as a method of resolving disputes. And I would agree with Members that these factors add to the reasons why we believe that mediation is growing as an option as one of the key dispute resolution options.

Mr Douglas Foo made an important point when he spoke about the importance of educating the business community of the benefits of mediation and of how these reforms can impact them positively. I agree, and the efforts to raise awareness of the Convention and of mediation in particular, must be an on-going and long-term one, and we are committed to doing so.

Let me just share with Members some of the steps we have been taking. MinLaw and our Singapore mediation institutes which many Members have mentioned – the SIMC, SIMI which is the mediation institute – have taken steps, active steps in the community to raise awareness of the Convention. MinLaw has been actively promoting the Convention and its benefits to the legal and business communities and to schools through conferences, seminars, workshops and other outreach efforts.

SIMC has bee conducting briefing sessions in conjunction with organisations such as the Law Society and Singapore Corporate Counsel Association to reach out to the legal profession and to the industry players and they will continue to do so. Thus far, SIMI – the institute – has conducted "Mediation In Practice" seminars for professionals in the healthcare and built environment sectors – two sectors which we believe will benefit from the usage of mediation – and will continue to conduct seminars for other sectors as well.

Mr de Souza also specifically asked about MinLaw’s efforts to build capability, interest and thought leadership with regard to mediation generally, amongst mediation institutions, amongst Singapore lawyers, and law students. Let me come to this but before I do so, I think that Mr de Souza noted that clause 6(1)(b)(iii) requires that the mediation be administered by an institution and not merely by a certified mediator. I would just like to add that the requirements in 6(1)(b) are disjunctive. There are several limbs to the clause and they are all disadjunctive. Hence, the Bill caters to both administered and unadministered mediations. Clause 6(1)(b)(ii), for instance, provides that an attestation by the institution that administered the mediation is only one of the ways in which a settlement agreement can be evidenced to have resulted from a mediation. Alternatively, the mediator’s signature on the agreement or some other document, not necessarily on the mediated agreement or any other evidence acceptable to the court, will also suffice. In other words, clause 6(1)(b) provides for a broad spectrum of different options by which the Court might then gain insight as to whether there is evidence supporting the contention that this agreement has arisen from mediation.

Singapore’s mediation institutions have built a strong pool of qualified mediators and practitioners and this started even before the Convention was inked last year. The SIMC and the SMC, which are two of the designated mediation service providers under the Mediation Act 2017, have established panels of mediators with broad expertise in very diverse fields. SIMC’s panel has about 70 international mediators from more than 20 jurisdictions across a spectrum of civil and common law backgrounds. They have expertise in different fields as well, different subject matters, which are important because whilst a dispute might centre around the law, the subject matter of the dispute might well come from different spectrums of society and different aspects of business transactions.

Knowledge, know-how and thought leadership are important drivers for mediation as a practice. And to this end, our institutions regularly conduct courses to equip Singapore lawyers and other professionals as well with mediation knowledge and skills. Recently, in November last year, the SIMC conducted a two-day specialist training workshop for 24 senior practitioners from Singapore – they include senior counsel, managing partners and partners of law firms in Singapore, general counsel of MNCs located in Singapore also other large companies and SIMC subsequently appointed them as specialist mediators in January this year. SIMC will be looking to conduct more runs of such specialist training workshops for lawyers, for in-house counsel and other business professionals. The thinking behind that being that it is not just within the province and domain of lawyers to conduct and run mediations but rather if we bring the skill in-house into the business environment then it is more likely that mediation will be taken up as an option; and also, would be able to locate such expertise within the business itself to catch hold of the dispute as early as possible.

On thought leadership, the Singapore International Dispute Resolution Academy or SIDRA was established as a platform for thought leadership in dispute resolution theory, practice and policy, and this includes of course the area of mediation as well. SIDRA strengthens Singapore’s thought leadership in this area through its research projects, such as its Singapore Convention on Mediation research project, which produced the first commentary on the Convention, and the International Dispute Resolution Survey research project, which captured respondents’ considerations in the use of international commercial dispute resolution, including arbitration, mediation and litigation.

On law students, which Mr de Souza mentioned, we have not forgotten them. I think Mr de Souza mentioned that SIMI organised the inaugural International Mediation Singapore moot. That involved 140 students from 30 different universities from around the world. It was the first international moot organised in Singapore that focuses on mediation advocacy. This year, in conjunction with what I mentioned earlier on the “Singapore Convention Week” in September this year, we will also have the second instalment of this programme.

To further develop students’ interest in mediation, NUS, SMU and SUSS law students are provided with electives and modules on mediation. SIMI supported the founding of, and continues to advise, the NUS Collaborative Dispute Resolution Club, the CDR, a dedicated club for law students to organise activities related to CDR such as selections for international competitions, events, seminars and also hosting actual competitions for students. This month, they will be organising a Mediation Advocacy Competition for contestants to pit their advocacy skills to further their client’s interests in collaborative mediation settings – real-life settings but students have a chance to apply what they have been taught and put into practice in an as realistic a setting as possible. SIMI and SIMC also provide internships for students interested in deepening their own understanding of mediation and how it applies in practice.

Mr Patrick Tay asked about the views and concerns of the legal fraternity and the business community, in response to the Bill. In some ways, the response from the legal community to what I have outlined over the last couple of minutes from attending the Convention, to the training, to coming forward to serve as specialist mediators, they all tell us that the legal community and the business one sees value in mediation. Stakeholders, including the legal fraternity, dispute resolution institutions, businesses that we consulted, welcomed the Bill. MinLaw also conducted several engagement sessions with professional bodies, business associations and students, and received very positive feedback for which we are very heartened.

On the international front, the adoption of the Convention by the UN General Assembly, Singapore's signing of the Convention and the other countries indicating that they would wish to ratify the Convention as soon as they can, they all bode well and they give us good reason to be quietly optimistic that the Convention will be ratified by more countries, and also its application to businesses across different jurisdictions to promote international trade.

Prof Fatimah Lateef asked if an agreement arising from mediation will now be enforceable under the Bill. The answer is yes. When the Bill is passed and enters into force, agreements which are of a commercial and international in nature, and which fulfil the requirements of the Bill, will be enforceable under the Bill's framework.

Mr Louis Ng noted quite rightly that as part of the civil justice reforms, the enforcement process of civil judgments in Singapore is currently under review. He asked how this review will affect the processes under this Bill. Under the Bill, an application for recognition of the international settlement agreement has to be applied for through the court process. I have outlined that earlier when I made the speech yesterday. One of the objectives of the civil justice reforms is to enhance the efficiency of the court procedures and this would also help the process under this Bill because the processes will be streamlined, enhanced and made more efficient.

Prof Fatimah Lateef had asked whether an international settlement agreement resulting from mediation can be enforced under the Convention regardless of its place of origin, and whether a party seeking to enforce such an agreement can do so in the state where the other party has a majority of its assets. This is a classic enforcement issue that almost all lawyers face when they look at how to, or where to enforce an award or order. The answer to Prof Fatimah Lateef's question is yes and indeed, that is the value behind the Convention. A party can choose which jurisdiction it wishes to bring an application under the Convention, provided that the jurisdiction is a party to the Convention. Obviously so because it can be enforced only against the party in a Convention jurisdiction. This provides businesses and investors with the certainty upfront that their cross-border transactions, which subsequently result in a dispute, which can then be mediated, can be easily and in my view, more effectively enforced, if one is able to discern how and where to go depending on the assets located of the counter party.

A party is also not limited to seeking enforcement under the Convention in just one jurisdiction. As I explained in my speech yesterday, obtaining an order of court under this Bill for the purposes of the enforcement does not extinguish the underlying mediated agreement. Either party to the mediated settlement agreement is at liberty to continue using the settlement agreement for enforcement or invocation in another jurisdiction which is a party to the Convention. So, you can go and seek enforcement of the mediated agreement in different jurisdictions, but provided that these different jurisdictions are Convention jurisdictions.

This is also subject, as in all cases, to the jurisdiction's own domestic procedures for enforcement and invocation. In other words, other countries will have their own process as we have set out in this Bill and compliance with that process must be adhered to, which is not uncommon.

Article 1(3)(a) of the Convention excludes settlements that have been approved by the court or concluded in the course of proceedings before a court. In other words, sometimes, in the course of court proceedings, you have a settlement agreement that arises in the context of that, this Bill does not apply to those agreements. This, however, does not mean that when a settlement agreement has been recorded as a court order under the Bill, for the purposes of enforcement or invocation in Singapore, that parties to the agreement would thereafter be precluded from presenting the same agreement in another jurisdiction for enforcement.

So, I just want to make this clear, that in coming to court in Singapore, adhering to the process under this Bill, for the purposes of enforcing or invoking the settlement agreement, does not preclude you from taking this agreement to another jurisdiction and then complying with the domestic procedures and laws, and also then enforcing it in that jurisdiction.

Mr Patrick Tay asked for the reasons behind the Bill being limited to commercial matters and why the Bill does not extend to agreements concluded for family, inheritance or employment disputes.

The Convention, which the Bill seeks to implement, itself excludes disputes in relation to "family, inheritance or employment law". The rationale of that is because it is consistent with UNCITRAL's mandate to focus on commercial disputes and commercial matters.

In fact, in its deliberations on the draft Convention text, commercial disputes were the main focus of the Working Group. The Working Group decided that settlement agreements dealing with family and labour law matters, and other areas where party autonomy might be limited due to overriding mandatory rules or public policy, should be excluded from the scope of the Convention.

Further, in matters such as family and employment law, domestic laws and public policy considerations often differ from one country to another. This could become an issue if a foreign court is faced with an application for the enforcement or invocation of agreements that might otherwise be contrary to its own laws and public policy of that particular jurisdiction.

That said, Mr Tay might wish to know that family disputes and related international mediated agreements are currently being considered by the Hague Conference on Private International Law, on whether there is scope for an international instrument to be developed for such matters. So, that might well happen, but perhaps within a differentiated set of rules, given the public policy considerations I have mentioned earlier.

Mr Patrick Tay also asked if the Bill will cover intellectual property rights.

The Bill covers all settlement agreements from mediations to resolve a commercial dispute. The Working Group agreed not to define the term "commercial" but left it to interpretation and further agreed that it should be capable of given a wide interpretation. Often, one finds that a dispute can raise multi-faceted issues, it is not often easy to pigeon-hole into one category or another. Hence, so long as the settlement agreement pertaining to or touching on IP rights relates to matters arising from a commercial dispute, then it can fall within the scope of the Bill.

Prof Fatimah Lateef asked if the courts of signatory countries will handle the applications for the Convention. The answer is yes. The Convention provides for a competent authority designated by a party to handle and hear applications brought under the Convention in that country. This is not limited to the courts of a country, and other bodies deemed suitable and competent by that country could also be designated. In Singapore, applications under the Bill are to be made to the High Court or to the Court of Appeal, as appropriate.

Prof Fatimah Lateef asked how parties can prove that the settlement agreement was a result of mediation. I believe Mr de Souza also raised this point earlier. It is not uncommon for parties to discuss and come to a resolution through various channels. So, in other words, where there is a dispute, one does not just sit down and say, "Okay, listen, this is a mediation. Let's start". Often, there is a series of informal discussions, maybe exchange in writing sometimes or over meetings. This can happen for a period of time before arriving at an agreement through the mediation.

Where the dispute is eventually resolved through these steps and recorded in the form of an agreement at a mediation session, the Bill will be applicable, subject to the other conditions of the Bill being met.

The onus is on the party seeking to make an application under the Bill to prove that requirements under clause 6(1)(b), which I have mentioned a little while ago, that the settlement agreement resulted from mediation, and that these conditions have been complied with. For instance, such evidence can be in the form of a document signed by the mediator conducting the mediation indicating that such a mediation was carried out.

On this note, Prof Fatimah Lateef raised the concern about the mediator having to sign the settlement agreement.

In line with Article 4(1) of the Convention, the requirements set out in clause 6(1)(b) are not exhaustive. The first option for demonstrating that the agreement resulted from mediation is, of course, the mediator’s signature on the mediated agreement itself. This might be the simplest and neatest method of satisfying the requirement. Although in some jurisdictions, including in Singapore, it is not the practice to do so. It is not the practice to include the mediator as a party to the agreement. In other words, on occasion, if the parties subsequently disagree on the terms, it should not be open to the parties to call the mediator as a witness to come and give a testimony as to what actually transpired. So, for that reason, mediators generally do not sign off on the mediated agreement itself.

But as Prof Fatimah Lateef correctly points out, there are other options that this Bill has made available, other mechanisms by which this can be done. One option is that separate document that I mentioned earlier, signed by the mediator who conducted it. If none of these available options can be used to prove, then parties can rely on clause 6(1)(b)(iv), which states that "any other evidence" acceptable to the authority before which the application is made can be used.

So, it might well be a combination of emails, something in writing, something verbal, which goes towards proving that the mediation took place and that this agreement arose as a result of those discussions and negotiations.

On the requirement for a certified English translation of a settlement agreement drafted in a foreign language to be provided to the Court, Prof Fatimah Lateef asked whether the Bill will provide for a list of approved translators globally. Consistent with the usual practice of proceedings in our courts, parties are free to engage their own qualified translators for the translation for the purposes of clause 6(4) of the Bill. Neither the Convention nor the Bill stipulates a list of approved global translators nor is there a requirement to provide such a list.

Let me turn to some questions now on the standards of mediations, standards of mediators and also ensuring consistency.

Mr Louis Ng asked if the intention is for the industry to self-regulate or if MinLaw intends to consolidate a single set of standards. Mr Patrick Tay and Mr Ng also asked about the definition of serious breaches and what might warrant the Court’s refusal of an application under the Bill. Prof Fatimah Lateef noted that local frameworks and culture may drive the conduct of mediation differently in each country, which is a fair point, and queried whether and how the Bill will ensure consistency and standards for mediators before whom agreements are concluded.

First, as noted by Prof Fatimah Lateef herself, given the varying nature of mediation and the forms it can take across different countries, languages, cultures, it would itself be a challenge to now prescribe common standards applicable across different countries which signed up to the Convention as being the applicable standards for mediation in all cases. In fact, the UN Working Group, when looking at the issue, considered an illustrative list of examples of potentially applicable mediator standards.

But these are standards that we would not be surprised to see in any application to enforce an arbitral award or a court order, or indeed, a mediated settlement agreement. So, these are issues such as the independence of the mediator, the impartiality, confidentiality and whether or not there has been natural justice and fair treatment of the parties. These are all standards that you find in one form or another replicated in the Bill. At the same time, the Working Group also noted that standards and applicable standards might change, might shift. There might be more or less emphasis on one point or another subsequently.

Accordingly, neither the Convention nor the Bill sets out standards that are prescribed upfront and become immutable over time, applying to the mediator or to the mediation itself. In addition, I would also note that the mediation landscape in Singapore is still developing. We are about six months out from the Convention. We do not currently have plans to impose a regulatory regime on mediators for the time being.

At the same time, Mr Louis Ng is right in noting that mediation institutions like the SMC and SIMC already require mediators on their panels to adhere to a code of conduct. We also have the SIMI, the accreditation body for mediation in Singapore, which sets standards for mediator training and also accreditation. If the mediators are from certain professions, such as the legal profession or the accounting profession, they will also be subject to their professions' own set of standards on ethical rules and other professional guidelines.

To the extent that there are in fact such "applicable" standards based on the mediator’s licensing regime, due to the parties’ agreement with the mediator, or pursuant to the rules of an administering institution, these standards, and consequently, whether there has been a "serious breach" or not, are to be determined by the competent authority hearing an application under the Bill, in other words, the Courts.

As I am sure Mr Christopher de Souza and Mr Patrick Tay would know, the Courts would apply those standards, looking at it in the context of what it means by drawing parallels with arbitrator misconduct for instance, or the rules of how a fair arbitration might have taken place. Those principles, whilst not directly relevant to a mediation in the same way, would no doubt guide the conduct of the Courts as to what comprises "serious breach". This is to ensure that mediator and mediation standards continue to be upheld and are not undermined in the process of concluding a settlement agreement.

Sir, I believe I have covered all the queries raised by Members. Let me conclude by saying that we are hopeful that as the Convention comes into force, more and more parties will see the benefit of mediation and through it, as Mr de Souza points out, the Courts will receive more and more applications and through that, develop a body of jurisprudence as to how to administer, apply and, in some cases, refuse to apply or refuse to enforce such agreements.

Singapore continues to position itself as a thought leader, as a hub, as I mentioned at the outset, for all forms of dispute resolution. And with the Convention and this Bill, we will expect to see that the third of the more popular areas of dispute resolution will now have an avenue for cross-border enforcement, that, in our view, will promote international trade.

With the milestone that we have achieved with the Convention, Mr Deputy Speaker, we believe that this Bill will bring rich and varied opportunities to our businesses, mediation institutions and professionals and also our legal profession. Sir, with that, I beg to move.

*Question put, and agreed to.*

*Bill accordingly read a Second time and committed to a Committee of the whole House. (proc text)]

*The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai]. (proc text)]

*Bill considered in Committee; reported without amendment; read a Third time and passed.*