The Law Society Arbitration Scheme
A Simple, Complementary, and Alternative Dispute Resolution Process – An Interview with Lawrence Teh
Lawrence Teh, current global co-head of international arbitration of international law firm Dentons Rodyk & Davidson and former chair of the Law Society ADR Committee, speaks to Asya Jamaludin about how the Law Society Arbitration Scheme (the Scheme) came into being, as well as the current and future challenges in promoting the Scheme. Lawrence also gives some insight into his career and tips for aspiring ADR practitioners.
1. You have been in practice for over 28 years. In that time, you have achieved a great deal. You are regularly appointed as arbitrator in international arbitrations, and regularly appearing as counsel in the Singapore courts, in international arbitration and in international mediation. However, today, if I may, I would like to focus more on your work with the Law Society standing committees. You were the chair of the Law Society Civil Practice Committee from 2006 to 2010 and the chair of the Law Society ADR Committee from 2014 to 2017. Have you always been a disputes lawyer?
ADR, specifically international arbitration, mediation and neutral evaluation, has always been part of my practice in commercial dispute resolution. As a young lawyer, I did, and still do, many cases in the shipping, commodities and construction industry, which ordinarily contained arbitration clauses. My firm also supplied me with general commercial disputes and some of those disputes also required reference to arbitration. When Singapore started promoting itself as an arbitration centre, my dispute resolution work profile changed and more and more of my work involved representing clients in ADR processes. I should also mention that the start of “court dispute resolution” by the then-Subordinate Courts gave me my initial experience with mediation which in turn prepared me to receive other mediation styles into my practice and act effectively as counsel in international commercial mediation matters.
2. Are there any particularly memorable cases you would like to share, whether good or bad – without breaching confidentiality, of course?
Most of my cases are memorable in one way or another – usually because of the analysis, strategy and/or legal argument that was applied to achieve a successful outcome. In addition to the usual work that is done on the substantive merits of the dispute itself, I am often required to advise and act in pre-substantive arbitration processes like ship arrest, freezing injunctions and also in arbitration and court processes concerning tribunal jurisdiction, antisuit injunctions, taking of evidence and, of course, setting aside and enforcement of arbitral awards. Confidentiality prevents me from speaking in detail about my cases in arbitration.
In relation to mediation, the one case that I usually mention to demonstrate that no difference is too great to mediate, and that cases can be settled if the right approach to mediation is adopted, is a large fatal accident claim by the estate of a deceased employee of a listed company, in which I represented the employer.
On the one side was a grieving family filled with emotion and on the other side was my client, a listed company answerable to its shareholders for how it spent resources to resolve claims. I offered mediation to my opponent and managed to persuade him to agree to it. However, the mediation, comprising two mediators who adopted a facilitative approach, failed terribly as the mediators could not bridge the gap between emotion on the one side and regimented accountability on the other. It literally ended in tears!
Although the result was disappointing, and court action appeared to be the logical conclusion after a failed mediation, I decided to approach my opponent again to try mediation. This was not easy. The parties had already spent money on a failed mediation, which made each side skeptical about mediation and regard the other as intransigent. Each side was looking at trial for resolution. I offered mediation by a recently retired High Court Judge whom I suggested to my opponent would command the respect of the parties and employ an evaluative approach to some extent, which would in turn give the parties a sounding of the probable result if they went to trial. My opponent agreed to recommend a second mediation to his clients. What I predicted of the second mediation was precisely what took place and, with the charm of the mediator and ice being broken by the parties sitting to lunch with the mediator, a settlement satisfactory to both sides was achieved.
3. That would have been particularly gratifying. Was it this knowledge that alternative dispute resolution methods could bridge gaps that seemed too far apart that led to your involvement with the Law Society schemes – particularly the Law Society Arbitration Scheme (LSAS) and the Law Society Mediation Scheme (LSMS)? I am aware that the LSMS which was launched while you were the chair of the ADR Committee.
It was part of the reason for my belief in ADR as an effective process. Since that time, I have had several other occasions in which settlement seemed at first impossible but was realized through the skill of the mediator in collaboration with counsel. I was part of the Law Society ADR Committee when Council approved work on what eventually became the LSAS. The then-chairman of the ADR Committee, George Tan, asked me to chair a sub-committee to draft the LSAS rules. My sub-committee members were Paul Sandosham, Glenn Cheng and Lawrence Tan. The advantage of the LSAS is that it suits smaller claims (domestic or international) which require meaningful dispute resolution by way of a result that is achieved speedily and at minimal legal cost. The LSMS built on the LSAS in the sense that it offered both a complimentary service to the LSAS as well as a stand-alone service.
4. To me, the Law Society Schemes fill a gap in the market – while you may wish for a less formal dispute resolution process as the courts for your smaller, less complex civil claims, you may not necessarily wish for it to be administered by an institution. However, the main challenge that we are facing now is trying to increase the usage and uptake of these very good schemes. In your experience, what were or are the challenges in promoting the usage of the Schemes?
The lack of publicity within the profession and the general public is one of the main challenges. Often parties will agree on arbitration as a method of resolving their disputes, but are unaware or oblivious to the fact that the dispute resolution forum they have provided in their agreement may not be suitable to their set of circumstances or case.
There is also (undue but understandable) apprehension by members of the litigation bar that they do not possess the ability to represent clients in arbitration cases. As such, they are less likely to suggest arbitration and LSAS as a dispute resolution method.
5. How do you see the Scheme evolve to meet the challenges/needs in future?
I see the LSAS arbitral processes adapting to take advantage of modern technology. In addition, there will be increased confidence by the profession that disputes can be resolved by documents only.
[Note– where the total sum in dispute is not more than $60,000 or where parties specifically agree, the arbitration will be a documents-only arbitration, meaning that the arbitration that will proceed without a hearing for the presentation of evidence and/or oral submissions on the merits of the dispute.]
6. Thank you, Lawrence. Before we end, and while I still have you here, do you have any advice or tips for young/aspiring ADR practitioners?
Litigation is a good starting point to build a career in dispute resolution. It is also a skill that may come in handy when arbitration or mediation takes a turn towards issues that require court processes, e.g. interim measures in support of arbitration or multi-tiered dispute resolution processes, jurisdictional review, taking evidence in aid of arbitral proceedings, setting-aside or enforcement of awards, etc. Do not make the mistake that arbitration is simply litigation before a private judge. There are significant differences between litigation and arbitration, and international commercial arbitration and investment treaty arbitration can be the legal equivalent of thinking and speaking in a different language. Mediation is also a very different skill to litigation and arbitration and involves both party and mediator psychology. The more open and adaptable one is, the better one will take to different forms of dispute resolution.
This article on the Law Society Arbitration Scheme is the first of our three-part series on the Law Society’s alternative dispute resolution schemes.
The Law Society offers mediation, arbitration and neutral evaluation/determination for the resolution of all kinds of civil and commercial disputes, including family disputes. Our processes are comparable to other known establishments but simplified for ease of use. With experienced lawyers who are prepared to serve on our panels despite the affordable pricing, our alternative dispute resolution schemes are designed for speedy and cost effective resolution of disputes between parties.
For more information, please visit our Alternative Dispute Resolution microsite.