Contemporary Issues in Mediation

The following sections are included:

• Contents
• Foreword for the Series By William Ury
• About the Guest Editor
• About the Editors
• Editors’ Note
• About the CIIM Essay Competition

The following sections are included:

• Introduction
• Current approaches to relationships
• Drawback of current approaches
• Uniquely Singapore
• Proposed framework: RSC
• Future directions and specific strategies
• Conclusion

In March 2019, the Supreme Court of India referred the long-standing dispute of the demolition of the Babri Masjid in Ayodhya, India to mediation. On the 8th of March, a five-judge Constitution bench headed by the Chief Justice of India, Mr. Ranjan Gogoi, referred Ayodhya’s Ram Janmabhoomi-Babri Masjid land dispute case for mediation, to a panel comprising the spiritual guru and founder of the Art of Living foundation, Sri Sri Ravi Shankar, senior advocate and renowned mediator, Mr. Sriram Panchu (as co-mediators), and former apex court judge Justice FMI Kalifulla (as head of the panel). The Bench while invoking Section 89 of the Code of Civil Procedure to do so held that there was no legal impediment in referring the dispute at hand to mediation. At the time of writing, hearings for the mediation are underway and recorded in camera…

On 7 August 2019, a ceremony was held in Singapore for the signing of the Singapore Convention on the enforcement of international commercial settlement agreements resulting from mediation, which will be known as the Singapore Convention on Mediation (thereafter “the Singapore Convention” or “the Convention”). On 20 December 2018, the General Assembly of the United Nations adopted the resolutions concerning the Singapore Convention and the revised Model Law on International Commercial Conciliation during its 73^rd session. The final drafts for these instruments had been approved at the 51^st session of the United Nations Commission on International Trade Law (UNCITRAL) on 26 June 2018…

The following sections are included:

• Introduction
• What does mediation in armed conflict look like?
• Actors in a mediation and their motivations to mediate
• Impact on the mediation process
• Moving forward: Real neutrality?
• Conclusion

The International Centre for Settlement of Investment Disputes (ICSID) was established by the Washington Convention to provide a neutral forum for states and foreign investors to resolve their disputes through mediation and arbitration.

Half a century later, while arbitration has flourished in Investor State Dispute Settlement (ISDS), the same cannot be said of mediation, despite the clear interest mediation had aroused during the preparatory work for the Washington Convention.

Some of the aforementioned specialists have, while deploring this failure, identified its causes long ago, which has led in recent years to a widespread and converging movement of structural reforms of the legal framework of Investor–State Mediation (ISM) under the aegis of international organisations and specialised institutions. However, will this new system be sufficient to remove all obstacles on the way to this alternative medium of dispute resolution and encourage its return to grace?…

The following sections are included:

• Introduction
• How capable is Artificial Intelligence in a mediation session, especially online?
• What role should Artificial Intelligence play in an online mediation session?
• Conclusion

The following sections are included:

• Introduction
• Background of power imbalance
• Testing the hypothesis
• Between binary opposites — some nuance
• Conclusion

The following sections are included:

• Introduction
• Definitions
• Whether mediators should intervene to correct power imbalances
• Addressing power imbalances
• Conclusion

The following sections are included:

• Introduction
• Why mandatory mediation is suitable for resolving family disputes
• A critical analysis of the major issues arising from mandatory mediation
• Mitigating factors taken by the Family Justice Courts in Singapore
• Conclusion

The following sections are included:

• Introduction
• Overview of mediation confidentiality
• Current laws governing mediation confidentiality in Singapore
• Improving mediation confidentiality in Singapore
• Conclusion

The following sections are included:

• Introduction
• What is mandatory mediation?
• Mandatory interest-based mediation — Challenges and solutions for stakeholders
• Conclusion

Those new and eager to mediate are often reminded of their duty to do so in good faith. A duty which arguably exists from when counsel starts preparing a client for mediation. However, in the absence of any rubric or model to provide guidance on what constitutes good faith, some beginner mediators struggle to understand the nebulous concept, let alone encourage it in conduct. This chapter therefore aims to assist new mediators by proposing some guidelines on how to approach good faith. By combing through literature and case law relating to good faith, it will argue that while the excluder theory should not be applied in Singapore, the theory can serve as a starting point for counsels to ensure that they do not find themselves in the realm of bad faith. Subsequently, it will offer some general principles to steer counsels and clients toward good faith. This chapter is premised on the acceptance of the Singapore Court of Appeal’s (“SGCA”) decision in HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore Pte Ltd (“Toshin”), where the apex court held that an express clause requiring to negotiate in good faith is valid in Singapore. Nonetheless, it should be noted that this chapter will not delve into the details of Toshin. Further, this chapter does not advocate for the formalising of good faith. Instead, it merely seeks to supplement existing literature and promote efficacy in mediation in view of its rising popularity as a dispute resolution tool.

The following section is included:

• End Notes