Public Consultation on the Proposed Mediation Bill
Ministry of Law, Singapore
Consultation Period:
to
A. Introduction
1. In 2013, an International Commercial Mediation Working Group (“Working Group”) made various recommendations to develop Singapore into a centre for international commercial mediation. The Working Group’s recommendations were made with a view to adding to Singapore’s vibrant dispute resolution landscape and were accepted by the Government in December 2013.
2. The key recommendations included
(a) the establishment of the Singapore International Mediation Centre to provide world class mediation services;
(b) the setting up of the Singapore International Mediation Institute to set professional standards for mediators;
(c) the extension of relevant tax exemptions and incentives applicable for arbitration to mediation; and
(d) legislative changes through the enactment of a Mediation Act to strengthen the framework for mediation in Singapore.
3. The first three proposals have been implemented. The Singapore International Mediation Centre and the Singapore International Mediation Institute were both launched on 5 November 2014. Withholding tax exemptions for non-resident mediators have been available since 1 April 2015.[1]
4. The proposed Mediation Bill gives effect to the Working Group’s last key recommendation. It will serve to strengthen the overall framework for mediation in Singapore[2] and provide certainty for mediation users where the position in law is unclear or differs from one jurisdiction to another.
5. The draft Bill was prepared taking into account the Working Group’s recommendations, and other existing mediation legislation including the UNCITRAL Model Law on International Commercial Conciliation. Key features of the Bill are highlighted below.
B. Summary of Provisions
Stay of Court Proceedings (Clause 8)
6. The court currently has the power to order a stay of proceedings where parties enter into a mediation agreement. This is based on the court’s inherent jurisdiction. Mirroring similar provisions for arbitration, the draft Bill will provide an explicit statutory basis for parties to apply to court for a stay, and for the court to make orders to preserve the rights of parties pending the outcome of the mediation.
Confidentiality of Mediation Proceedings (Clause 9 to 11)
7. While mediation is highly valued as a private and confidential process, the scope of such confidentiality is at times unclear, and is reliant on a mixture of common law privileges, contractual principles, equitable doctrines and statutory regulations.
8. The Mediation Bill codifies the general duty of confidentiality applicable in the mediation, and sets out the circumstances in which disclosure may take place. If such duties are breached, the intention is that the usual civil law remedies currently applicable at common law will apply. The Bill also provides for the circumstances in which evidence given in the course of confidential mediation proceedings can be admitted into court.
Recording of Mediated Settlement Agreement as Court Order (Clause 12)
9. One criticism of mediation is that mediated settlements are only contractually enforceable between parties. The Mediation Bill contains provisions to allow parties, to apply to court by agreement to record a written and signed mediated settlement agreement as an order of court if the mediation has been (a) administered by a designated mediation service provider, and (b) conducted by a certified mediator. This concept mirrors similar provisions applicable to the enforcement of international arbitration awards.[3]
Legal Profession Act Exceptions (Clause 16)
10. The Working Group had also proposed to extend existing Legal Profession Act exceptions applicable to arbitration, to mediation. These exceptions make clear that participation by foreign arbitrators and foreign-qualified counsel in arbitration proceedings involving Singapore law do not amount to unauthorised practice of Singapore law.
11.Mediation, unlike arbitration, is not commonly understood to involve the practice of law, and often does not refer to legal principles at all. Nonetheless, in certain cases the relevant law may be discussed during the mediation session. The amendment to the Legal Profession Act makes clear that participation by foreign mediators and foreign-qualified counsel in such mediation sessions will not amount to unauthorised practice of Singapore law.
C. Invitation for Feedback
12. MinLaw invites interested parties to provide their feedback on the proposed Bill. The consultation period is from 17 March to 28 April 2016. The public can view the draft Bill in the Annex A. The feedback may be sent in electronic or hard copy form to the address below:
Legal Industry Division
Ministry of Law
100 High Street
#08-02, The Treasury
Singapore 179434
Fax: 6332 8842
E-mail: MLAW_Consultation@mlaw.gov.sg
[2] Presently, mediation legislation is confined to specific types of domestic mediations (e.g. the Community Mediation Centres Act, Cap. 49A) where mediation has been found to be useful.
[3] See section 19 of the International Arbitration Act.