Turning disputes into win-win relationships

By Juliana Chan

SMU Office of Research & Tech Transfer – “In life, you win some and you lose some”. This saying, part philosophical and part adversarial, suggests that life consists of a series of zero-sum games – for every victor, there will likely be a loser.

Besides athletes who compete to be first to the finish line, litigation lawyers are another group of individuals who fully understand the high stakes of winning and losing. In the US, litigation is a US$20 billion annual industry, underscoring the hefty business costs of litigating disputes. Besides lawyers’ fees, indirect business costs – from diverting of key personnel to tarnished reputations and damaged professional and personal relationships – can be even more significant.

But many lawsuits can be avoided with alternatives to litigation that leave neither side damaged, says Assistant Professor Eunice Chua of the Singapore Management University (SMU) School of Law. These alternatives, such as negotiation and mediation, have become increasingly popular and accepted practices in Singapore and around the world.

“Because mediation is a process where a skilled mediator assists and facilitates negotiations between parties in conflict, it can address many emotional, business, relationship and other non-legal issues, and help to produce a workable solution that meets the interests of the parties. So, for example, in a dispute over non-payment of debt, mediation can allow the parties to explore ways to help one party recover value and the other to provide it in creative ways,” Professor Chua says.

From courtroom to academia

It was hardly a linear path that brought Professor Chua to the SMU School of Law. After a stint as a justices’ law clerk in the Singapore Supreme Court and studying for her master’s degree at Harvard University on a Legal Service Commission scholarship, Professor Chua again joined the Singapore Supreme Court as an assistant registrar.

“One aspect of court administration I was involved in was working with the Singapore Mediation Centre (SMC) on how the court referred cases to the SMC, and to explore how judges and judicial officers can better encourage the use of mediation for cases that were suitable for it. That was how my interest in mediation and dispute resolution started,” says Professor Chua, who at the time also served as an assistant director to the SMC.

Further cementing her interest in mediation was an opportunity that came knocking in 2014, when Professor Chua helped to set up the Singapore International Mediation Centre (SIMC) as its first deputy chief executive officer.

“The SIMC was the result of the government’s push to develop Singapore into an international dispute resolution hub,” she explains. “The idea was to set up a new dedicated mediation centre for international disputes, alongside other initiatives such as the Singapore Mediation Act, and other professional mediation bodies, to strengthen the Singapore mediation framework.”

An iron hand in a velvet glove

In 2016, Professor Chua decided to make a jump to academia, where her research focuses on alternative dispute resolution. She is presently studying the use of mediation in Singapore’s Family Justice Courts (which hear cases on family-related matters such as divorce, domestic violence and adoption) and their counterparts overseas.

“The Family Justice Courts in Singapore have a unique power to order people to go for mediation, even if they say they don’t want to. In the normal civil process, people can only be encouraged to go for mediation but not compelled to do so,” she shares.

By studying how family courts in other jurisdictions operate when it comes to referring cases to mediation, Professor Chua hopes that more light can be shed on what makes for effective mediation of family disputes, so that the Singapore judicial system can further improve on its own model of family justice by drawing from the lessons learnt elsewhere.

“Each jurisdiction has a different legal framework and cultural context, and this influences how family mediation is approached. My on-going research considers the studies that have been done elsewhere on family mediation, to see whether those approaches have relevance and value to Singapore and vice versa,” Professor Chua says. “I hope that my research will help to inform policy making in the Singapore Court and beyond, which is one of the main reasons I came into academia after some time in the legal marketplace.”

What makes a successful settlement?

Drawing on her experience in the courts, Professor Chua teamed up with an SMU School of Law colleague, Assistant Professor Dorcas Quek, on a project to understand the factors that contribute to a successful mediation settlement of ongoing civil disputes.

Their research, titled ‘How should the courts know whether a dispute is ready and suitable for mediation? An empirical analysis of the Singapore Courts’ referral of civil disputes to mediation’, was recently accepted for publication by the Harvard Negotiation Law Review, one of the top dispute resolution journals worldwide.

In this study, the first empirical analysis of the Singapore Courts’ referral of civil cases to mediation, the duo found that the timing of referral, the stage of referral and the level of contentiousness between the disputants are factors that influence the likelihood of settlement at mediation.

Other factors are the time taken to complete the mediation, whether the mediator has legal training, and the quantum of claim – for example, broadly speaking, every S$100,000 increase in the quantum of claim reduced the likelihood of settlement by around two percent.

Based on their findings, Professor Chua and Professor Quek proposed that the Singapore Courts adopt a more nuanced assessment of a wider range of factors when deciding whether to refer a dispute to mediation, instead of focusing mainly on timing and stage of referral.

Growing a dispute resolution community in Singapore

Building on the success of this study, Professor Chua and Professor Quek have co-organised a research forum focused on alternative dispute resolution under the auspices of the Centre for Cross-Border Commercial Law in Asia.

Called ‘Expanding the Scope of Dispute Resolution and Access to Justice: The Use of Mediation Within the Courts’, the forum has brought together international experts from practice, academia and the judiciary at the SMU School of Law on 12-13 March 2018¹.

“One reason I am very glad to have come to SMU to do research and teach is because of the opportunity to collaborate with the strong dispute resolution faculty here. I’m looking forward to hosting this research forum and growing the connections and interactions amongst the dispute resolution community in Singapore,” says Professor Chua.    

¹Read our post-event coverage "From zero-sum to win-win" on the research forum 'Expanding the Scope of Dispute Resolution and Access to Justice: The Use of Mediation within the Courts’ here.

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