The Singapore Parliament passed the Mediation Act on 10 January 2017 as part of the efforts to make Singapore a hub for international dispute resolution by improving the legislative framework for mediation. This is to promote, encourage and facilitate the use of mediation as an avenue to settle disagreements.
However, it should be noted that the Act does not apply to all mediations in Singapore. It only applies to mediations conducted wholly or partly in Singapore, or conducted somewhere else provided that the mediation agreement states that the Act or Singapore law applies to the mediation.
II. Main Features of the Mediation Act
A. Halt on Court Proceedings
The Act allows parties to a mediation agreement to apply to court to hold off court proceedings in relation to the dispute under mediation if any of the parties have initiated such proceedings.
B. Confidentiality of Mediation Communication
(1) Restrictions on Disclosure of Mediation Communication
Under the Act, a person cannot disclose any mediation communication relating to the mediation to any third party except in certain circumstances. The circumstances in which such communication can be disclosed are stated in the Act.
The MA also allows a person, with leave of a court or an arbitral tribunal, to disclose mediation communication to a third party to the mediation for certain specified purposes or purposes that the court considers justifiable.
(2) Use of mediation communication as evidence in court.
The Act makes it clear that mediation communication is not to be admitted in evidence in any court, arbitral or disciplinary proceedings except with the permission of a court or an arbitral tribunal.
C. Mediation Agreements as court orders
Before the Act was passed, mediated settlement agreements were only enforceable by suing under the mediated agreement. The agreement could only be recorded as a court order if the dispute had gone before the courts.
The Act now allows a mediation agreement that has never been before a court to be recorded as a court order. This would allow the parties to enforce their mediated settlement agreement as if it were a judgement given by the court or an order made by the court.
The following criteria must be met to record the mediation settlement as a court order:
(a) All parties to the mediation agreement must consent to the application to the court to record the agreement as a court order;
(b) The mediation must be administered by a designated mediation service provider or conducted by a certified mediator;
(c) The agreement must be in writing and signed by all the parties to the agreement.
However, a court may refuse to record a mediation settlement as a court order if:
(a) The agreement is void or voidable because of incapacity, fraud, misrepresentation, duress, coercion, mistake or any other ground for invalidating a contract;
(b) The subject matter of the agreement is not capable of settlement;
(c) Any term of the agreement is not capable of enforcement as an order of court;
(d) Where the subject matter of the dispute to which the agreement relates involves the welfare or custody of a child, one or more of the terms of the agreement is not in the best interest of the child;
(e) The recording of the agreement as an order of court is contrary to public policy.
The Act is indeed a welcomed improvement to the current law on mediation. With a clear legislative framework which offers greater protection to parties by protecting confidentiality and enforceability of mediation agreements, we should be optimistic that the use of mediation as an avenue for dispute resolution would greatly increase in the future, improving Singapore’s position as a legal hub even further.