The Singapore Law Gazette

What You Need to Know about Law Society’s Alternative Dispute Resolution Services

In the last few decades, alternative dispute resolution, or ADR, has seen a meteoric rise in popularity amongst individuals and businesses looking for a better way of resolving their disputes. The Court is no longer the “first stop” that parties go to whenever a dispute arises; instead, parties would engage (or consider engaging) one of the ADR mechanisms. One of the biggest attractions of ADR is its ability to offer parties the appropriate process to resolve a particular dispute at hand. One commentator observed that ADR “is no longer “alternative” but is rather the norm in many countries”¹ Kluwer Mediation Blog, “Setting the Stage for Dispute Resolution Innovations” (23 February 2016) <http://mediationblog.kluwerarbitration.com/2016/02/23/setting-the-stage-for-dispute-resolution-innovations/> accessed 6 March 2019. and another commentator rightly pointed out that ADR has actually become “a staple factor of civil practice today.”² Francesca Altema, “Alternative Dispute Resolution: How the Growth of This Practice Has Led to a Drop in Litigation” (15 May 2012) <http://nysbar.com/blogs/lawstudentconnection/2012/05/alternative_dispute_resolution.html> accessed 6 March 2019.

The development and growth of ADR in Singapore has been nothing less than remarkable. The Government³ Over the years, Ministry of Law has set up Singapore Mediation Centre, Singapore International Mediation Centre, Community Mediation Centre and Singapore International Arbitration Scheme providing parties with a wide range of options to settle their disputes. and the Judiciary⁴ For example, court-based mediation, conciliation and neutral evaluation was introduced in Subordinate Courts, now renamed the State Courts to encourage parties to consider ADR at an early stage of the proceedings. have been active in promoting Singapore as a dispute resolution hub. A recent example is the launch of the Singapore Infrastructure Dispute-Management Protocol in October 2018, aimed to help “parties involved in mega infrastructure projects manage disputes and minimise the risks of time and cost overruns.”⁵ Ministry of Law, “New Singapore Dispute Protocol Launched to Minimise Time and Cost Overruns in Infrastructure Projects” (23 October 2018) <https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/launch-of-SIDP-reduces-time-and-cost-overruns-in-infrastructure-projects.html> accessed 6 March 2019. Another example is the introduction of a professional duty on lawyers “to advise their clients about the different ways their disputes may be resolved using an appropriate form of ADR” for civil cases in the High Court and the Court of Appeal.⁶ Supreme Court Practice Directions (Amendment No. 1 of 2016).

Since 2007, with the introduction of the first ADR scheme – the Law Society Arbitration Scheme (LSAS) – the Law Society through its ADR Committee has continually done its part to promote ADR in Singapore and to fulfill its mission of facilitating access to justice for the public at large. Incrementally, other ADR schemes were introduced – the Law Society Mediation Scheme (LSMS) in 2017 and the Law Society Neutral Evaluation and Determination Scheme (LSNEDS) in 2018 – to keep up with the growing needs of the industries and individuals, and to provide additional options for varying ADR solutions to different types of dispute (the three schemes are collectively referred to as the Schemes). Each scheme can be used on its own or in conjunction with the others to suit the needs of the parties. One important point to note is that the Schemes do not seek to compete with existing dispute resolution institutes, but rather to complement them.

Some of the common features of the Schemes include a friendly fee structure, private and confidential processes, etc. In the next few parts, this article will briefly highlight the key features of each of the Schemes.

Law Society Arbitration Scheme (LSAS)

LSAS seeks to offer to parties with simple civil claims a quick and cost-effective way of resolving their disputes.⁷ Michelle Woodworth, “Alternate Dispute Resolution and the Law Society Arbitration Scheme: An Interview with Mr Chan Leng Sun, SC” <http://v1.lawgazette.com.sg/2013-02/677.htm> accessed 6 March 2019. Different from the other arbitral institutes, Law Society “does not supervise the arbitration or review the award for approval before its release.”⁸ Ibid. This is one of the reasons why Law Society is able to keep its cost low.

One of the special features of LSAS is that for arbitrations with a total sum in dispute (consisting of claim and counterclaim) of less than S$60,000, they will be conducted on a documents-only basis. However, in exceptional cases, the arbitrator can still order a hearing if he deems it necessary. For other arbitrations, a hearing is required for the presentation of evidence and/or oral submissions on the merits of the dispute.

To improve access to justice, a Pro Bono Arbitration Scheme under the umbrella of the LSAS was implemented in 2012 for sums in dispute below S$20,000. The arbitrator in the case will waive his fees for the matter.

Arbitration under LSAS is quick – arbitrators must render their award within 90 days from the commencement for documents-only arbitration, or within 120 days for arbitrations involving a hearing.

Last year, the LawSoc Arbitration Rules were revised to provide more flexibility and to cater to the changing needs of the parties.

A dedicated Arb-Med-Arb Procedure was introduced allowing parties to switch between arbitration and mediation. In the case where parties are successful in settling their dispute during mediation, the arbitrator of the case can record the settlement in the form of a consent award. Parties can enjoy the benefit of the New York Convention and enforce the consent award in over 150 contracting states.

The other new addition is the Emergency Interim Relief which aims to protect parties’ rights between the time of the filing or after the filing of the Notice of Arbitration and before the appointment of the arbitrator. The President of Law Society will appoint the emergency arbitrator within two working days. The emergency arbitrator shall make his interim order or award within 14 days from the date of his appointment.

So far, we have received a fair number of cases with disputed sums ranging from about S$9,000 to over S$116 million.

Law Society Mediation Scheme (LSMS)

LSMS was conceived as a “user-centric [and] low-cost mediation scheme”⁹ Sanjay Pala Krishnan and Leonard Saw, “Law Society Mediation Scheme – Strengthening Access to Justice” (April 2018) <https://lawgazette.com.sg/news/updates/law-society-mediation-scheme-strengthening-access-to-justice/> accessed 6 March 2019. to encourage persons with limited means and SMEs to mediate their dispute. Some of the often-expressed benefits of mediation are that it can help parties reconcile their differences thereby preserving business/familial relationship, provide parties maximal control of the outcome and deliver savings if arbitration or litigation is brought to an earlier end in the case of a successful mediation. Even if the mediation is not successful, parties can take the opportunity to explore and resolve underlying problems, thereby helping parties to narrow down on the issues for litigation/arbitration or paving the way for settlement in the future.

Businesses should consider including LSMS, as part of their dispute prevention/management strategy. Mediation should be attempted when a dispute arises before the commencement of litigation or any other ADR mechanisms. Minor disputes can be resolved before they become major problems. Also, waiting too long to mediate may result in parties’ positions becoming too entrenched to be settled.

There has been a steady increase in the cases over the past few years. Out of the cases that have been referred to LSMS, about 80 per cent of them have been settled. The disputed sum in these cases range from S$100,000 to over S$13 million.

Law Society Neutral Evaluation and Determination Scheme (LSNEDS)

LSNEDS was developed to “provide a short, sharp evaluation or determination of all or part of a dispute to enable the parties to end it and move on if they can.”¹⁰ Cameron Ford, “The Law Society Neutral Evaluation and Neutral Determination Scheme” (December 2018) <https://lawgazette.com.sg/feature/law-society-neutral-evaluation-and-neutral-determination-scheme/> accessed 6 March 2019. If that is not possible, parties are not permanently saddled with the result and they have subsequent chances of asserting their rights through litigation or arbitration.

Neutral evaluation is advisory in nature thereby allowing parties to know the strength(s) and weakness(es) of their case. An evaluation is non-binding; however, it can be used by the parties to plan their next step.

On the other hand, neutral determination provides a temporary resolution to the matter which is similar to the security of payment regimes around the world. Parties are required to perform their legal obligations as determined by the neutral until the matter is finally resolved by the court or tribunal.

LSNEDS is quick as the neutrals are required to give their evaluations/determinations within 14 days after the Response has been received.

Panels of Experienced Practitioners

Law Society’s panels of experts – be it arbitrators, mediators, or neutrals – consist of senior practitioners who possess substantive knowledge in different industries and sectors. Some of them are Senior Counsel, former Judges or Judicial Commissioners. To ensure that they have met the highest professional standards to serve the best interest of the public, Law Society has set certain criteria for their admission to the respective Panels.

For example, mediators on the LSMS panel must have been accredited by a recognised institution providing mediation training or attained at least Singapore International Mediation Institute Accredited Mediator Level 1 accreditation.

The arbitrators/neutrals on the LSAS/LSNEDS panels must be a Fellow of the Singapore Institute of Arbitrators (SIArb) or Chartered Institute of Arbitrators (CIArb) or such other similar arbitral institutions, have successfully completed an award writing course conducted by an approved institution such as the SIArb or CIArb, or have previously acted as an arbitrator and written an award.