General:

  1. What is mediation?
  2. What is the difference between arbitration and mediation?
  3. When should parties use mediation?
  4. Can one party refer a case to mediation without the agreement of the other party?
  5. What happens when mediation succeeds and parties agree to settle?
  6. What happens if the parties fail to come to any settlement after the mediation?

 

Mediation at Singapore International Mediation Centre (SIMC):

  1. Does SIMC have a model Clause?
  2. How should parties choose a mediator?
  3. How should parties commence mediation with SIMC?
  4. How long does mediation usually last?
  5. Who are the mediators on SIMC’s panel?
  6. How much does mediation at SIMC cost and what should the parties pay when they commence mediation at SIMC?
  7. How can a mediator apply to be part of the SIMC panel of mediators?

 

Arb-Med-Arb:

  1. What is Arb-Med-Arb?
  2. Why SIAC-SIMC Arb-Med-Arb?
  3. How much does Arb-Med-Arb cost?
  4. Will the mediator be the same person as the arbitrator?
  5. When will SIAC pass the matter to SIMC for mediation?
  6. When will mediation at SIMC terminate and arbitration proceedings resume?
  7. What is the difference between a consent award and a settlement agreement?

 

SIMC and Singapore Mediation Centre (SMC):

  1. What is the difference between SIMC and SMC?
  2. When should a case be referred to SIMC and when should it be referred to SMC?

 

SIMC and Singapore International Mediation Institute (SIMI):

  1. What is SIMI?
  2. How can a mediator become accredited or certified by SIMI?

 

Mediation

Q: What is mediation?

A: Mediation is a means of resolving conflicts, and solving problems with the assistance of a neutral third party – the mediator – who will encourage and facilitate productive discussions between parties to a dispute. If mediation is successful, the parties will enter into a settlement agreement.

Mediation can complement other forms of dispute resolution, such as court litigation, arbitration and negotiation.

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Q: What is the difference between arbitration and mediation?

A: Arbitration and mediation are two common forms of resolving disputes without going to court. Both arbitration and mediation proceedings are confidential and can be conducted by a neutral third party at the parties’ venue of their choice using procedural rules of a designated institution or as otherwise agreed by the parties.

In arbitration, the arbitrator looks into the legal rights and wrongs of a dispute and makes a decision. Once the arbitrator has arrived at a decision, it is binding on parties whether they agree with it or not. It is very much like the way a court case is decided by a judge, except that the process does not take place in a courtroom, and it is not open to the public. As in a court case, there is usually a winning and a losing party in arbitration.

In mediation, the mediator essentially helps parties to settle their disputes by a process of discussion and narrowing differences. The mediator helps the parties to arrive at an agreed solution. He does not decide the dispute. A successful mediation results in an agreement signed by the parties, whereas arbitration results in a decision by the arbitrator himself without the agreement of the parties. In mediation, there is no such thing as a winning or losing party, because the parties are free to agree on both legal and non-legal solutions suited to their interests and needs.

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Q: When should parties use mediation?

A: Parties should use mediation when they would like the assistance of a mediator to help them to arrive at a mutually agreeable solution in a confidential and non-confrontational way.

Parties can refer their dispute to mediation at any time, in particular:

  • if their contract contains a mediation clause i.e., a clause stating that the parties should refer any dispute arising from the contract to mediation or to an institution which offers mediation services, their dispute can be referred to mediation according to the mediation clause;
  • even if the parties did not sign an agreement to mediate before their dispute arose, they can later agree to refer their dispute to mediation and try to reach a negotiated solution with the help of the mediator;
  • where other proceedings have already started (e.g. court or arbitration proceedings), parties can still agree to hold the proceedings in abeyance while they refer their dispute to mediation.

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Q: Can one party refer a case to mediation without the agreement of the other party?

A: Mediation, as with arbitration, can only be commenced with the agreement of all the parties involved.

However, if parties to a contract have not agreed on a mediation clause, i.e. a clause stating that the parties should refer any dispute arising from the contract to mediation or to an institution which offers mediation services, before the dispute arises, one party can still propose mediation to the other party and the parties may enter into a mediation agreement after the dispute has occurred. Read SIMC’s Model Clauses and how SIMC can assist parties.

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 Q: What happens when mediation succeeds and parties agree to settle?

A: Once the parties have reached an agreement with the assistance of the mediator, parties and their legal counsel will put their agreement in writing and sign the agreement. The mediator will usually review the agreement to ensure that it records what the parties have agreed to.

The Singapore Ministry of Law is presently working on a Mediation Bill which will include provisions relating to the enforceability of mediated settlements by the Singapore courts. This will facilitate the enforcement of settlement agreements in Singapore when the parties do not voluntary execute the settlement agreement. However, practice demonstrates that almost all settlement agreements are executed voluntarily by the parties.

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Q: What happens if the parties fail to come to any settlement after the mediation?

A: It may happen that the parties are unable to find a settlement to their dispute, or that they reach a partial solution, which leaves some points in dispute. Depending on the reasons for this, the parties may wish to schedule another mediation session, continue privately with negotiations or turn to other dispute resolution options to resolve their dispute such as litigation or arbitration. The parties should also consider whether the terms of their contract state how they should proceed.

It is important to note that achieving settlement is not the sole purpose of mediation. During the mediation process, the parties often achieve a better understanding of their own and each other’s cases, including their potential weaknesses as well as strengths. They may also be able to resolve relationship or other non-legal issues. This may help to facilitate any later negotiations or clarify the issues in any following arbitration or litigation; saving time and costs for the parties.

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 Mediation at SIMC:

Q: Does SIMC have a Model Clause?

A: SIMC offers several Model Clauses to the parties to choose from, depending on when they decide to enter into a mediation agreement (before or after their dispute has arisen) and the type of service they require (mediation or Arb-Med-Arb).

SIMC’s model clauses can be found here.

SIMC can further assist parties with the choice of Model Clauses suitable to their case, in contacting the parties regarding the proposal to mediate and in entering into an agreement to mediate. SIMC’s contact details are available here.

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Q: How should parties choose a mediator?

A: Parties may agree to jointly nominate their mediator based on many factors, including the mediator’s experience, expertise, mediation style, nationality, location, and rates. They are free to choose from SIMC’s internationally renowned panel of mediators or agree on any other mediator.

If parties are unable to agree on who to jointly nominate as their mediator within 10 days from the date of commencement of mediation, SIMC shall appoint the mediator. If a party has valid objections to SIMC’s appointment of a mediator, the party shall notify SIMC and the other parties in writing as soon as possible. SIMC will review the objections and may, within 10 days from receipt of notification of the objections, appoint another mediator.

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Q: How should parties commence mediation with SIMC?

A: Please see our step-by-step guide available here.

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 Q: How long does mediation usually last?

A: A mediation with SIMC is usually scheduled for one or two days.

Subject to the availability of the parties, their legal counsel and the mediator as well as prompt compliance with the SIMC Mediation Rules, the entire mediation process from the request for mediation and appointment of mediator to conducting of the mediation can take place in a short space of time. The process is closely supervised by SIMC’s professional case management secretariat to ensure efficiency and avoid delays.

In Arb-Med-Arb cases, strict timelines provide that the mediation procedure will not take more than 8 weeks, unless an extension of time is granted by the Registrar of SIAC in consultation with SIMC.

The main phases of a mediation administered under the SIMC Mediation Rules are usually the following:

  • Filing of the Request Form to SIMC with payment of the case filing fee;
  • Verification of the agreement to mediate or signature of an agreement to mediate if need be;
  • Nomination of the mediator by the parties within 10 days from the commencement of the mediation or appointment by SIMC in case the parties cannot agree on a mediator within the 10-day period;
  • Determination of the date, venue and language of the mediation (sometimes following a pre-mediation meeting with SIMC) as well as the names of the authorised representatives of the parties;
  • Exchange of parties’ briefs and supporting documents at least 10 days before the mediation;
  • Mediation day(s);
  • Settlement agreement (if any) generally at the closure of the mediation.

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Q: Who are the mediators on SIMC’s panel?

A: All the mediators on SIMC’s panel are internationally renowned mediators that are or will be independently certified by SIMI.

The panel encompasses mediators from 14 different countries with expertise in different areas of commercial practice and different language skills and mediation styles to suit the needs and requirements of each case.

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Q: How much does mediation at SIMC cost and what should the parties pay when they commence mediation at SIMC?

A: In a nutshell, parties to mediation at SIMC will pay:

(a) a case filing fee;

(b) case management fees;

(c) mediator’s fees and expenses;

(d) rental costs of mediation rooms and catering charges; and

(e) any other costs and out-of-pocket expenses related to mediation.

The Schedule of Fees is provided in Appendix B of the SIMC Mediation Rules.

At the commencement of the case, deposits will be called for payment to cover the estimated costs of mediation. Payment of deposits will be shared equally between all the parties in mediation unless otherwise agreed by the parties.

The deposits will include the case management fees, an estimate of the mediator’s fees and expenses, the rental costs of mediation rooms and catering charges for the estimated length of the mediation and a mark-up of 25% to cover any additional costs and fees related to the mediation.

(a) case filing fee

The case filing fee depends on the type of mediation case which is filed, i.e. if the case is solely referred to mediation or if it is referred to arbitration and mediation (an “Arb-Med-Arb case”).

  • mediation case: the case filing fee is SGD 2,000 which shall be paid when the request to mediate is sent to SIMC. It is non-refundable.
  • Arb-Med-Arb case: the case filing fee is SGD 3,000 for overseas parties (SIAC SGD 2,000 + SIMC SGD 1,000) and SGD 3,140 for Singapore parties (SIAC SGD 2,140 (incl. 7%GST) + SIMC SGD 1,000). The case filing fee shall be paid when the notice of arbitration is sent to SIAC. It is non-refundable.

(b) case management fees

The case management fees are determined according to the Schedule of Fees and based on the value of the sum in dispute in a case. SIMC will calculate the case management fees payable at the commencement of the case for the purposes of collecting deposits from the parties.

(c) mediator’s fees and expenses

The mediator’s fees and expenses are based on the commercial rates charged by the mediator and agreed to by the parties. The deposits called for by SIMC will cover an estimate of the mediator’s fees based on the approximate length of the mediation (based on information provided by the parties).

(d) rental costs of rooms and catering charges

Unless parties agree otherwise, the deposits called for by SIMC will cover the rental costs of mediation rooms at Maxwell Chambers and charges for catering services, based on the estimated length of the mediation and the number of representatives and legal counsel who will attend the mediation. The deposits are based on Maxwell Chambers’ rates and are billed at cost price.

(e) mark-up of 25%

SIMC may request payment of a mark-up of 25% on the total of the estimated case management fees, mediator’s fees and expenses and rental costs of rooms and catering charges, in order to cover any additional costs such as extra hours for the rental of facilities and other services related to mediation, mediator’s expenses and SIMC’s out-of-pocket expenses.

Once the mediation is terminated, SIMC will calculate the actual costs of the mediation and may refund part of the deposits paid if the deposits exceed the actual costs of the mediation.

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Q: How can a mediator apply to be part of the SIMC panel of mediators?

A: Membership on SIMC’s panel of mediators is by invitation from the SIMC Board of Directors. In order to assure SIMC’s users of the high professional standards of SIMC mediators, SIMC mediators are required to be certified by the Singapore International Mediation Institute (SIMI).

Interested mediators who meet the certification requirements and wish to be considered for inclusion in SIMC’s panel of mediators may write to the SIMC Secretariat (secretariat@simc.com.sg) enclosing their CV. The SIMC Secretariat will submit all panel applications to the Board for consideration.

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Arb-Med-Arb

Q: What is Arb-Med-Arb?

A: Parties who have signed an arbitration agreement may wish to refer their dispute to mediation, either before they commence arbitration or in the course of the arbitration proceedings.

“Arb-Med-Arb” is a process whereby a dispute is first referred to arbitration before mediation is attempted. If parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. If parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings.

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Q: Why SIAC-SIMC Arb-Med-Arb?

A: The SIAC-SIMC Arb-Med-Arb service is a confidential and efficient form of alternative dispute resolution. It combines the cost-effectiveness and flexibility of mediation with the finality and enforceability of arbitration in a seamless and convenient procedure.

A settlement agreement obtained through the SIAC-SIMC Arb-Med-Arb process may be made a consent award. A consent award is generally accepted as an arbitral award, and subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention, an international convention on the enforcement of arbitral awards.

Parties can therefore achieve finality whether through the mediation process or arbitration process.

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Q: How much does Arb-Med-Arb cost?

A: In Arb-Med-Arb, the parties will pay for the actual costs of the mediation as explained above as well as the actual costs of the arbitration proceedings in accordance with the SIAC Schedule of Fees.

Under the SIAC Arbitration Rules, the Registrar will calculate the actual costs of the arbitration and shall have regard to all the circumstances of the case, including the stage of the proceedings at which the arbitration is settled or disposed of. This means that parties can generally expect to pay less for the Arb-Med-Arb proceedings than with fully contested arbitration proceedings.

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Q: Will the mediator be the same person as the arbitrator?

A: Under the SIAC-SIMC Arb-Med-Arb Protocol, the arbitrator(s) and the mediator(s) will be separately and independently appointed by SIAC and SIMC respectively, under the applicable arbitration rules and mediation rules of each Centre. Unless the parties otherwise agree, the arbitrator(s) and the mediator(s) will generally be different persons.

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Q: When will SIAC pass the matter to SIMC for mediation?

A: After the service of the Notice of Arbitration, Response to Notice of Arbitration and appointment of the arbitral tribunal, the tribunal will stay the arbitration proceedings and inform the Registrar of SIAC that the case may be submitted for mediation at SIMC.

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Q: When will mediation at SIMC terminate and arbitration proceedings resume?

A: The SIAC-SIMC Arb-Med-Arb Protocol provides for a maximum 8 week period from the commencement of mediation before the termination of mediation and resumption of arbitration. This 8 week period may be extended by application to the Registrar of SIAC.

Mediation at SIMC may terminate before the expiry of the 8 week period upon:

  1. the issuance of written confirmation of termination by SIMC after the occurrence of the earliest of:
    •  any party giving written notice of withdrawal to SIMC, the mediator and the other parties;
    • the mediator giving written notice to SIMC and the parties that the mediation should be terminated;
    • the signing by the parties of a written settlement agreement; or
    • SIMC giving written notice to the parties that any time limit set for the mediation, including any extension thereof, has expired; or
  2. SIMC giving written notice to the parties that any payment by one or more parties pursuant to the SIMC Mediation Rules has not been made for more than 14 days after the due date for payment.

Arbitration proceedings will then resume promptly thereafter.

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 Q: What is the difference between a consent award and a settlement agreement?

A: A consent award is a written decision made by an arbitral tribunal with the agreement of the parties to an arbitration. A consent award is generally accepted as an arbitral award, and, subject to any local legislation and/or requirements, is generally enforceable in approximately 150 countries under the New York Convention, an international convention on the enforcement of arbitral awards.

The settlement agreement is in essence a contract containing the solution reached by the parties in the course of the mediation. It is usually in writing and signed by all the parties at the conclusion of the mediation. It may fully or partially resolve the disputes between the parties.

Where parties have agreed to apply the Arb-Med-Arb Protocol to their arbitration, and if the parties so request, the settlement agreement reached by the parties after mediation will be passed to the arbitral tribunal who may render a consent award on the terms agreed to by the parties.

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 SIMC and Singapore Mediation Centre (SMC):

 Q: What is the difference between SIMC and SMC?

A: Although SMC and SIMC both offer mediation services, SMC focuses on domestic disputes whereas SIMC focuses on international commercial disputes. This focus is evident from the different composition of SMC and SIMC’s respective panels of mediators, with SIMC’s panel being largely comprised of international mediators from all over the world and SMC’s panel being largely comprised of local mediators.

SIMC is a mediation service provider only and its panel of mediators is required to be certified by the Singapore International Mediation Institute (SIMI), which is an independent body that sets standards for mediators. SMC, in addition to providing mediation services, also acts as a training and accreditation body for mediators.

For more information about SMC, please visit http://www.mediation.com.sg/.

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Q: When should a case be referred to SIMC and when should it be referred to SMC?

 A: Parties are free to choose whether they prefer to mediate at SMC or SIMC, bearing in mind that SMC focuses on domestic disputes and SIMC focuses on international commercial disputes.

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SIMC and Singapore International Mediation Institute (SIMI):

Q: What is SIMI?

A: SIMI is a professional standards body for mediation which implements and maintains a credentialing scheme for mediators, as well as audits and ensures that high standards are met with registered partners who conduct training and/or provide mediation services. SIMI does not conduct training or assessment courses that lead to accreditation or certification with SIMI, and does not offer mediation services.

To ensure high quality of service to users, SIMC’s mediators are SIMI certified mediators.

For more information on SIMI, please visit www.simi.org.sg.

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Q: How can a mediator become accredited or certified by SIMI?

A: SIMI’s credentialing scheme consists of four separate tiers:

  • SIMI Accredited Mediator Level 1: to become SIMI Accredited Mediator Level 1, one simply needs to attend and pass a training and assessment course (referred to as a SIMI Registered Training Program or SIMI RTP) run by one of SIMI’s registered partners;
  • SIMI Accredited Mediator Level 2: to apply for promotion to Level 2, a Level 1 accredited mediator will have to mediate 5 full-scale mediations / 50 hours;
  • SIMI Accredited Mediator Level 3: a Level 2 accredited mediator will have to mediate 12 full-scale mediations / 120 hours to reach Level 3;
  • SIMI Certified Mediator: a Level 3 accredited mediator will have to mediate 20 full-scale mediations / 200 hours to become SIMI Certified Mediator. They will also need to pass a post-experience knowledge and skills assessment by a SIMI Qualifying Assessment Program (SIMI QAP).

 For more details on the requirements, please visit SIMI’s website at: http://www.simi.org.sg/What-We-Offer/Mediators/SIMI-Credentialing-Scheme

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