An analysis of why mediation should be considered as part of the rule of law was given by the Honourable Chief Justice Sundaresh Menon, Supreme Court of Singapore, to the The Law Society Mediation Forum in Singapore on 10 March 2017.
The following is a series of excerpts from a speech recently given by the Honourable Chief Justice of Singapore. It is particularly important in that it not only suggests that ADR (including mediation) should be included in the range of procedural options available to the judiciary, but it goes one step further in concluding that the inclusion of mediation in the range of procedural options given to the parties promotes the rule of law.
The rule of law notion which is rooted in a fundamentally, if not exclusively, adjudicative setting is no longer sufficient to capture the ideals of a modern system for the resolution of disputes. We need to overlay a more user-centric approach on top of the institutional values which have defined the ideals of our legal system.
This paper reaches the conclusion that mediation is fully compatible with the rule of law, based on the following five criteria:
4. Flexibility, and
Mediation as a method of dispute resolution exemplifies many of the ideals of a user-centric approach. Prime among these is the fact that mediation has the great benefit of being much more cost-effective and affordable than most other modes of dispute resolution.
I suggest that the value that mediation brings to our legal system lies not just in making a more diversified range of dispute resolution options available, but more importantly in helping actors at different levels achieve a spectrum of efficiency objectives.
Mediation provides relative ease of access with few technical or legalistic requirements that might otherwise restrict the parties from participating in the system. Mediation is also a much more accessible system in terms of the individual disputants’ abilities to understand the process and even to represent themselves in the procedure. It is relatively devoid of formality, technicality and jargon, and disputants can participate in it with ease.
The accessibility of the mediation process is closely linked to another of its key advantages, which is flexibility. Mediation enables the parties to explore a multitude of issues and concerns arising out of a transaction or a relationship, without regard to formal constraints such as those imposed by the rules of pleading and even without being limited to matters that might strictly be considered legal in nature.
The statistics paint an encouraging picture of mediation’s success in our legal system. Since the establishment of the Singapore Mediation Centre, which deals primarily with private commercial matters, more than 2,300 matters have been mediated with an overall settlement rate of 75%.36 In the Supreme Court, the rate of settlement for cases which proceeded to mediation in recent years has ranged between 66% and 81%.
Even at the Court of Appeal level, cases which have been referred to the Singapore Mediation Centre for mediation have enjoyed settlement rates in excess of 50%. It also bears noting that settlement in these cases was achieved within a year of the referral. This is particularly impressive because there is often less impetus for parties to an appeal to reach a settlement since one party would have already “won” on the merits at first instance.
More importantly, with recourse to different methods of dispute resolution, the great benefit is that parties may now consider the strengths and weaknesses of each approach in order to determine the appropriate mode of dispute resolution that is best-suited to their needs. Developing a more diversified suite of dispute resolution options therefore enhances the ability of the legal system to deliver justice that is customised to the particularities of each case and has the effect of reinforcing the overall legitimacy of the dispute resolution framework. This, in turn, has the potential to foster stronger respect for the norms set within the adjudicative process.
Finally, the emergence of mediation may even be said to have a “revitalising effect” on the adjudicatory process, and to this extent to complement the traditional rule of law values which the latter espouses.
Please click here to see the full speech.
These excerpts have been published with the kind permission of Chief Justice Sundaresh Menon.