The Singapore Law Gazette

Comparative Perspectives on Mediation in New York and Singapore

 Lessons for Court-administered ADR Services

New York and Singapore are both highly regarded centres of mediation practice and scholarship, at the very forefront of the development of the industry globally. Both cities offer its lawyers world-class mediation training opportunities that are broadly similar in terms of the substance and philosophy of the facilitative mediation model. However, in the field of court-administered ADR services, significant divergences in practice may be observed, particularly in terms of how these services are provided and the mediation models being employed in doing so.

Overview of New York Courts’ ADR Services

Mediation has gained considerable popularity among New York’s jurists over the last decade. Most of the state courts in New York maintain a mediation program, the details of which vary between courts, judicial districts, and specialised court divisions. Typically, each division (commercial, family, small claims, etc.) maintains its own panel of mediators.

The conditions regarding practical mediation and legal practice experience (where applicable) for admission to the panels vary, as do the fees paid to mediators. The people providing mediation services in the courts are predominantly lawyers in private practice who typically have specialised expertise in the practice area of the division in which they mediate.

What these mediators have in common is a substantively similar education in mediation. New York’s courts accredit third-party course providers and impose certain requirements on the content and length of courses. These courses train mediators in the facilitative model of mediation.

The fees chargeable by the mediators on these panels are regulated to varying degrees by the various courts. Some of them require mediators to provide the first few hours of mediation pro bono and cap fees thereafter at US$400 or US$500 per hour. Some of them are entirely pro bono.

Typically, about 60-75 per cent of cases settle at the mediation stage and high user satisfaction among disputants is reported.¹“Interim Report and Recommendations of the Statewide ADR Advisory Committee”, New York State Unified Court System (February 2019) <https://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf> (accessed 25 January 2021)

Overview of Singapore Courts’ ADR Services

Singapore is highly regarded internationally as a centre of mediation excellence. Those credentials were bolstered in 2018 by the launching of the Singapore Convention on Mediation, which has now been signed by 53 countries and ratified by six. In the context of court mediation in Singapore, typically, mediation of civil cases in Singapore’s District Court²This discussion is limited to the State Courts, an umbrella term that includes the Magistrate’s Court, District Court, Small Claims Tribunal and Employment Claims Tribunal. The State Courts hear 90% of the cases in Singapore. The Supreme Court, which includes the High Court, Court of Appeal and Singapore International Commercial Court, does not provide court mediation directly but refers cases for mediation out to the private sector. Mediation in Singapore’s Family Justice Courts is also beyond the scope of this article. is carried out by judges. Each party pays S$250 for such a mediation. According to Singapore’s State Courts, its judges receive training in mediation.³“We plan…to provide court annexed ADR training for our judicial officers…We will begin by intensifying internal training efforts for State Courts judges, court administrators and volunteer mediators and, among other offerings, a 2-day course for judges with an interest in court annexed judge-led ADR will be held…” Menon CJ “Keynote Address at State Courts Workplan 2017 Advancing Justice: Expanding The Possibilities” (17 March, 2017) <https://www.statecourts.gov.sg/cws/Resources/Documents/State%20Courts%20Workplan%202017%20Keynote%20Address%20by%20Chief%20Justice(FINAL).pdf> (accessed 25 January 2021)

Mediation of civil cases in Singapore’s Magistrate’s Court, which hears civil disputes with a value of no more than S$60,000, is typically carried out by lawyers on a pro bono basis over the course of half a day.⁴Lawyers are offered a nominal S$50 honorarium which they are invited to waive. To qualify for admission to the Court’s pro bono mediation panel, mediators must be Singaporeans, admitted to practice at the Singapore bar, with at least three years of practice experience in Singapore, and must already be a member of Singapore Mediation Centre’s (SMC) Panel of Associate Mediators with at least three years of mediation experience or Singapore International Mediation Institute (SIMI) Accredited Mediator Level 3. To be able to satisfy these requirements, mediators must typically have completed SMC’s mediation course and passed its assessment.

Singapore’s State Courts also offer a separate neutral evaluation service. This is provided by a judge other than the trial judge, who reviews the parties’ key evidence and provides a non-binding evaluation on the merits of the dispute to any disputants who jointly request it. This is a more recent innovation in Singapore’s State Courts and it has not been adopted by court users as frequently as mediation.

According to Singapore’s State Courts Centre for Dispute Resolution, of cases that were mediated in Singapore’s State Courts between 2012 and 2017, over 85 per cent of them reportedly resulted in settlements. High user satisfaction with Singapore’s court ADR services of 98 per cent is reported, based on a user survey conducted in 2015, the most recent survey for which data was publicly available.⁵Ang J. “Opening Remarks in SMU Forum: Expanding the Scope of Dispute Resolution and Access to Justice: The Use of Mediation Within the Courts” (12 March 2018),<https://www.supremecourt.gov.sg/Data/Editor/Documents/Use%20of%20Mediation-Within%20the%20Courts.pdf> (accessed 25 January 2021)

Challenges Facing Singapore’s Court ADR Landscape

Although a handful of court user surveys have been carried out over the last three decades, it would appear that Singapore’s courts do not routinely collect and collate feedback from all court users regarding their satisfaction with the mediation process or with the service provided by their mediator. Accordingly, it is difficult to gauge the extent to which court-administered mediation actually meets the needs of court users. However, anecdotal evidence suggests that there is a broad spectrum of satisfaction with the process and with the services of the Court’s mediators and that users, by and large, tend to have more positive experiences with professional volunteer mediators than with “judge-mediators”.

Users report feeling pressured by judge-mediators to settle cases and remove them from the Court’s docket. This pressure can manifest itself in judge-mediators offering unsolicited advice to disputants, who are represented by counsel, on the weaknesses of their case. Judge-mediators do not consistently adopt the facilitative mediation model, often preferring to rely on evaluative mediation to “reality test” parties’ expectations, regardless of whether they have been invited to do so.

Judge-mediators do, from time to time, go so far as to propose possible settlement permutations to parties rather than soliciting them from the parties themselves, thereby depriving the parties of ownership of their settlement. The unintended consequence of this is that parties, particularly if they were unrepresented in mediation, may ultimately return to court seeking to either vacate a mediation settlement agreement or to involve the Court in enforcing it against a recalcitrant party whose buy-in was never wholeheartedly secured in mediation. Therefore, litigation that is terminated by a mediation settlement of this nature may often prove to be a false economy in terms of savings to court resources.

That judges would be inclined to judge rather than mediate should not be surprising. Mediation is a popular occupation for retired jurists around the world. Ask any mediation trainer who has trained a retired judge in mediation techniques, and they will candidly share the challenges judges routinely face in unlearning everything they know about resolving disputes. Judging is what judges do all day. To ask them to suddenly change gears and merely facilitate the parties in reaching their own solutions is a challenging demand and requires judges to exceed the boundaries of their core competencies.

By contrast, professional private sector mediators in Singapore have been trained, usually at SMC, in the facilitative mediation model and would not pass SMC’s assessment if they adopted any of the above behaviours observed in judge-mediators.

At the same time, newly minted mediators being accredited by SMC struggle to find avenues to apply their new skills. They do not qualify to even volunteer on a pro bono basis for the Singapore State Courts’ volunteer mediators’ panel as they do not have three years of mediation experience and getting that experience can be a challenge.

Separately, the sole practitioners and members of small law firms, who make up the bulk of litigators in Singapore’s State Courts, have reported their business model coming under increasing pressure from rising costs and an increasingly sophisticated and cost-conscious market.

Drawing on Possible Solutions From New York – Recommendations for Reform

It should be obvious that the possible solutions to these problems are interlinked. We respectfully make the following recommendations.

1. Routinely Collect User Satisfaction Data

First, Singapore should begin routinely collecting feedback from court users about their satisfaction with specific aspects of the mediation process and collating that data. This should include feedback on the performance of their particular mediator so that desirable methodologies can be identified and promoted and undesirable methodologies can be identified and eliminated.

Gathering this data means more than sending out a survey to a small sample set of court users every few years. Rather the feedback gathering mechanism should be embedded in the ADR process and sent out to every single disputant that experiences a mediation immediately upon the conclusion of that mediation. Questions should be framed neutrally but refer to specific aspects of the mediation experience.

It is understandable that Singapore’s court ADR programme would be driven primarily by a desire to reduce the use of finite public resources in resolving private disputes. Court ADR programmes all over the world, including New York, are motivated by similar resource constraints. However, the success of an ADR programme should be measured primarily by the satisfaction of the people it is intended to serve and not solely by the number of trials it averted. If the cost of avoiding trials is the loss of the public’s confidence in the administration of justice, then that is too high a cost.

2. Reduce Evaluative Mediation – Enshrine the Facilitative Model

The use of evaluative mediation by mediators should be discouraged. In New York, if the mediator is a lawyer, she might offer the disputants the option of having her provide her candid views on the merits of the claim, if they want it. Other mediators will simply refuse to provide their opinion on the merits and instead insist on refocusing the disputants’ attention on their interests and the solutions that might best address them.

When a mediator provides her unsolicited opinion on the weaknesses of a disputant’s claim, the disputant’s loss of confidence in that mediator’s neutrality, impartiality and overall credibility can immediately be observed on the disputant’s face. Disputants, particularly those with legal representation, are in the best position to determine whether they require any further input on the merits of their case. If they want it, they will ask for it. Indeed, some of them do want it. However, since the Court’s neutral evaluation programme was introduced recently, parties who are interested in hearing a judge’s non-binding opinion on their case are now more likely to opt for that neutral evaluation route rather than mediation. Accordingly, the assumption should be that unless the parties state otherwise, facilitation, rather than evaluation is what is required of a mediator.

A mediator who nevertheless insists on offering her unsolicited opinion on the merits of the case, as so many of Singapore’s court mediators often do, makes her own job more difficult and is doing little to help the parties. Instead, she undermines the mediator’s sacred position of neutrality and creates the damaging perception that she is an advocate for the adverse party. So-called “reality testing” certainly has its place, but that place is within the context of the parties’ consent.

Singapore’s courts should ensure that all its mediators are encouraged to apply the facilitative mediation model and they must understand that they should never give their personal opinions on the merits except with the parties’ consent.

3. Phase Out Judge-mediators

If the data collected supports the conclusion that private sector professional mediators can indeed create a more positive facilitative mediation environment than judge-mediators, the use of judge-mediators should be phased out. Anecdotal evidence from the feedback of disputants in Singapore suggests that court users in Singapore would benefit from a court mediation programme that follows New York’s model in relying entirely on private sector professional mediators rather than foisting this additional role on a fully occupied judiciary that lacks the time and sufficient public resources to dedicate fully to professionalising its members’ mediation methodologies.

The motivations of courts in promoting mediation as an alternative to trials to reduce the burden on public resources are legitimate and laudable. However, in effect, judges stand to benefit directly from a reduction in the numbers of trials on their dockets if parties reach a settlement in mediation. This creates an incentive for judge-mediators to pressure parties, perhaps unconsciously, into accepting a settlement over which they lack a sense of ownership and which may not ultimately serve their interests. Every statistic and key performance indicator (KPI) Singapore’s State Courts collects about court mediation settlement rates reinforces the messaging to its judge-mediators that their role in mediation is to stop cases from getting to trial. Removing judges from the mediation equation removes that pressure on parties and refocuses the purpose of the mediation back to meeting the parties’ needs for effective dispute resolution in a truly neutral forum.

In 2008, Chan CJ acknowledged that Singapore’s practice of using judge-mediators was “considerably different in nature from other facilitative alternative dispute resolution processes where the mediator facilitates settlement by helping the parties to appreciate how their interests will be advanced by settling the matter.”⁶Jonathan Lock v Jesseline Goh (2008) 2 SLR 455 He described this system as “sui generis”, and made the claim, without evidence, that such a system was “particularly suited to a jurisdiction where litigants respect the impartiality of judges in giving objective views on the merits …”

First, the expectation that judges be impartial is universal and not uniquely Singaporean, but more importantly, this claim misses the point that the role of a mediator is not to make judgments about the merits. Second, this model ignores the position of potential conflict in which judges are placed when asked to advance the courts’ agenda of reducing trials whilst also purporting to act as impartial facilitators of a mediation.

In commending this judge-mediator evaluative mediation model, Chan CJ says that “[f]eedback from litigants shows an overwhelming preference for district judges to act as mediators because of the public confidence and respect that they command …”⁷Ibid

The feedback referred to by Chan CJ here appears to be a survey conducted in 1997.⁸See note 7, p 3 SMC was only established in 1997. Accordingly, a substantial supply of trained private sector professional mediators effectively did not exist in the Singapore market at that time. Therefore, survey respondents simply did not have any high-profile credible alternative to compare to judge-mediators at that time.

People know what judges are. Public understanding of what a mediator is and what they do is low even now, and would have been even lower in 1997 when the profession was in its infancy in Singapore. Better the devil you know than the devil you don’t. Basing current policy on the views of society as it existed almost a quarter of a century ago is unwise and unnecessary. The views of current court ADR users who have experienced mediations with judge-mediators and private sector mediators, respectively, are the views that must be collected and compared.

The particularly damaging consequence of thrusting judges into a mediation is that their mere presence taints the entire process with a whiff of litigiousness that is unavoidable. The lawyers cannot help but slip up and address the mediator as “Your Honour”. The disputants remain silent and allow the lawyers to speak for them instead of hearing and being heard by each other. The lawyers start submitting oral arguments to the Judge and pontificate on the merits of their respective cases instead of allowing their clients to explore each other’s true interests and propose creative solutions. In short, the mediation is often reduced to “litigation lite”.

4. Create a Private Sector Market for Court Mediation

The above recommendation dovetails nicely with a potential solution to the escalating economic pressures on sole practitioners and small firms in Singapore. It could create a new source of revenue for lawyers who are trained as facilitative mediators.

Currently, parties to District Court suits pay S$250 per party for a court mediation while parties to a Magistrate’s Court suit pay nothing. The District Court hears civil disputes for amounts between S$60,000 and S$250,000 and the Magistrate’s Court typically hears disputes between S$20,000 and S$60,000. Given the quanta of those disputes, it is suggested that mediation would remain an economically attractive ADR option for District Court parties if they were charged S$500 per party and for Magistrate’s Court parties if they were charged S$250 per party. Then, rather than those funds subsidising a judge’s precious and publicly funded time, they could be redirected to a revitalisation of the backbone of the legal profession, sole practitioners and small firms, by being paid out as mediation fees to professional private sector mediators. Effectively privatising the courts’ mediation burden, currently being borne by public servants at the taxpayer’s expense, would grow the size of the legal industry, for the benefit of the sector of that industry that needs it the most.

This solution also dovetails nicely with the need to find more avenues for new mediators to gain mediation experience. This is a challenge also facing mediators in New York. Currently, several structured mediation mentorship programmes are being considered in New York to address this. The parameters of these programmes vary but the essential elements typically involve new mediators shadowing a dedicated mentor mediator and observing her mediate a certain number of disputes, then co-mediating a certain number of disputes together, before being assigned several low-quantum disputes to mediate alone under observation from mediation trainers before finally becoming eligible for admission to a court mediation panel, subject to positive feedback from the mentor and observer.

If Singapore court mediation was privatised, this would provide another very significant high-volume avenue for new mediators to gain supervised experience via a mentorship or co-mediation training program. The mentee mediator could act on a pro bono basis until she had observed, co-mediated and mediated a sufficient number of mediations (some of which could be small claims tribunal cases) to be admitted to the court mediation panel.

However, for all other cases excluding small claims mediations, pro bono mediations by private sector mediators should be largely phased out. Disputants potentially stand to reap significant value from mediations and those that can afford to do so should not baulk at the prospect of paying a modest fee for access to such potential. Lawyers who contribute to the public good by making the significant investment of time and money involved in becoming a qualified mediator need to be presented with a clear path upon qualification to securing a return on that investment.

Conclusion

Court ADR services in New York are certainly not perfect. Court ADR services in Singapore also have much to commend them. The authors suggest that Singapore’s courts could benefit from studying the model being used by New York’s courts. The recommendations made above are all made without the benefit of comprehensive current data about the user experience of Singapore’s court ADR services. Collecting this data is essential to be able to reform court ADR in an informed way.

However, these recommendations are made with the benefit of considerable experience of representing parties in court mediations in Singapore. What has been observed from parties in court mediations suggests that our court users in Singapore feel there is room for improvement in how these services are administered. It also tentatively suggests that judge-mediators are a particular source of unhappiness amongst court-users and reallocating our judicial resources back to their primary purpose of judging, in the more appropriate forum of courtrooms, would be in the interests of the effective administration of justice.

If nothing else, we should at least hear what our court-users have to say about their experiences in court-administered mediations. Let us start regularly asking them and let us start listening to their views.