by Alexandra Piscionere
In recent years, Singapore is demonstrating to the world its global prowess in becoming a hub for arbitration. With the mass expansion of Maxwell Chambers and other projects to create new dispute resolution centers, Singapore is preparing itself for an even larger increase of international dispute resolution cases than it has already seen. According to Singapore’s Second Minister for Law, Indranee Rajah S.C., “One of Singapore’s key strengths as an international dispute resolution centre is our legal system which is neutral, stable, has high quality jurisprudence and is trusted by businesses.” The choice for the June Summit between leaders Donald Trump and Kim Jong-Un to be held in Singapore has more than likely been the extra exposure that the global dispute resolution arena needed to see Singapore as an ideal forum. Although the Singapore government has primarily emphasized arbitration as the country’s specialty, it is now in an ideal position to allocate its resources and efforts into all aspects of dispute resolution, particularly mediation. In fact, mediation may be an essential key to a successful arbitration or even to preventing unnecessary arbitration.
The four most common forms of dispute resolution are negotiation, mediation, arbitration, and litigation. Each of the types varies in cost, structure, and end result, among other aspects. There are therefore advantages and disadvantages to choosing one form of dispute resolution over the other. Although arbitration rules differ among jurisdictions and forums, the process typically mirrors courtroom procedure in the respect that the determination is ultimately made by an arbitrator. One key advantage that arbitration has over litigation is that arbitration awards can be enforced in any countries that are signatories to the NY Convention, while court judgments are generally only enforceable in the country in which the judgment was rendered. However, the advantages of arbitration often have more to do with the perspectives of the parties than with the forum itself. For example, a perceived advantage of arbitration is that it is speedier and less expensive than filing a lawsuit. However, depending on the complexity of the matter and, more importantly, the parties’ willingness to either settle the matter efficiently or to mutually agree not to intentionally delay the process, the advantages of arbitration could be minimal. This is where mediation comes into play.
In a mediation proceeding, a mediator acts as a facilitator in a mutually agreed-upon settlement, which is binding to the extent that the parties decide. In the U.S., for example, many courts use court mediators as a first and primary course of action before proceeding to trial in an effort for the parties to have the opportunity to craft a solution of their own choosing. It is also a way for the court to “take the temperature” of the parties to understand the complexities of the matter and the willingness of the parties to cooperate. On many occasions, these matters are settled before this initial pre-trial mediation. In other instances, mediation occurs concurrently with the court case, saving time and money for the parties, as a settlement will often be reached before the trial is finished.
Furthermore, mediation can serve as a tool to maximize the benefit of other alternative dispute resolution mechanisms, such as arbitration. Mediation is generally lower in cost than arbitration and is tailored specifically to the needs of the parties. Through the mediation process, the parties can gauge whether mediation is likely to be successful, whether arbitration is their best option, or even whether another avenue is better suited. Ultimately, the one aspect linking all of these avenues is mediation. It is the essential problem-solving tool that provides the clarity necessary to all parties involved which occurs uniquely when they can sustain a dialogue towards crafting solutions tailored to their needs. Laying out all cards on the table, so to speak, not only allows the parties to understand each other but also allows the parties to understand themselves and gain a better sense of what they would like to get out of the process. Even if the parties ultimately decide to proceed with arbitration or litigation, they are still in a better place after mediation because of the clarity they gain just by going through the process. Sometimes just the agreed-upon decision to go through mediation alone could be the first step towards conciliation.
In promoting Singapore as a global frontrunner for arbitration, it would be a disservice to count out mediation as an essential tool to facilitating both successful settlements and successful arbitrations. Forums such as the Singapore Mediation Centre and the Singapore International Mediation Centre are a welcome beginning to turning the country into a hub for successful alternative dispute resolution. However, it is only when we associate mediation with successful dispute resolution in all its forms that Singapore will begin to reach its full potential in becoming a global hub for dispute resolution.
Alexandra Piscionere is a New York attorney who served as Director and Investigative Counsel of the Westchester County Human Rights Commission and clerked for a New York Supreme Court Judge. She honed her mediating skills in these roles and specialized in sensitive topics such as divorce and discrimination. She is also the co-chair of the International Human Rights Committee of the New York State Bar Association. She is currently based in Singapore.
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