In our interview series, titled "PERSPECTIVES", we reach out to thought leaders in the fields of negotiation and dispute resolution, ask them questions, and invite them to share their ideas and insights.

In light of an upcoming research forum on 12 - 13 March 2018, "Expanding the Scope of Dispute Resolution and Access to Justice: The Use of Mediation Within the Courts", as organised by the Singapore Management University (SMU), Centre for Cross-Border Commercial Law in Asia (CEBCLA), we decided to interview Assistant Professor Dorcas Quek Anderson and Assistant Professor Eunice Chua about the courts’ encouragement or provision of mediation.

Eunice Chua (EC): I see 2 key trends: (1) diversity; and (2) mandatoriness.

(1) Diversity

We can see very diverse approaches across the globe towards encouragement or provision of mediation. For example, in family mediation, some courts such as those in Australia mandate that mediation is attempted before parenting orders can be sought from a court. This mediation is conducted by private mediators. Whereas in Singapore, the court can mandate mediation in any family dispute, even if no children are involved, and the Family Justice Courts offer mediation conducted by trained judge-mediators. This diversity is important as it allows us to study the impact of different approaches and be better informed about what works and what doesn’t.

(2) Mandatoriness We are witnessing a perceivable trend to mandate some form of consideration or attempt at mediation at an early stage of a case or even before a case is brought to court. This is important because it demonstrates widespread acceptance of the value of the mediation process and will also help people to access this very timely and effective mode of dispute resolution, even if they are not aware of it.

Dorcas Quek (DQ): Building on Eunice’s point about diversity, I see that the courts are incorporating into the justice process a wide variety of dispute resolution processes that include more than just mediation. The judges in the Singapore State Courts Centre for Dispute Resolution conduct neutral evaluation, apart from mediation. The structured process of early neutral evaluation or ENE was developed by the District Courts of the Northern Districts of California to help disputing parties obtain a realistic view of the potential merits of their case. By contrast, the primary focus of mediation is usually not on the legal merits of the dispute, but on finding a holistic solution that satisfies all the parties’ concerns and needs. The Singapore Family Justice Courts offer a unique mediation model involving co-mediation by judges and psychologists or counsellors. This model is specially tailored to suit the needs of divorcing couples and their children’s well-being. The Quebec courts have an interesting judicial mediation programme requiring the judges to adopt a largely facilitative approach and not give any opinion about the merits of the case. On the other hand, judicial settlement conferences in the United States have been conventionally associated with a flexible mixture of mediation and evaluative techniques.

Such diversity offers tremendous potential for the courts to effectively tailor the right process to the dispute and thus “fit the forum to the fuss” (Sander and Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to Selecting an ADR Procedure, 10(1) Harvard Negotiation Journal, Jan 1994). It also means that dispute resolution in the courts becomes increasingly complex given that there will be a wide menu of options to choose from and a potential increase in hybrid processes combining elements from mediation and other options.

Technological changes will probably contribute to even greater diversity as well as complexity. Developments in online dispute resolution or ODR are further changing the nature of dispute resolution within the courts. British Columbia’s Civil Resolution Tribunal is a good illustration. Before lodging a formal claim, an individual can use an online tool that uses guided pathways to help a person understand the dispute better and make informed choices on how to resolve it. Once a claim is filed, the online process allows parties to negotiate with each other, and if it fails, to enter a facilitation phase. An expert facilitator uses a variety of platforms and dispute resolution processes to help the disputants settle their conflict.

These innovations transform the entire complexion of dispute resolution. The courts play a much more active role in triage, offering information to aid decision-making, and facilitating settlement using a variety of dispute resolution techniques. The Online Solutions Court in England and Wales is likely to have a similar first stage, which Justice Briggs has described as an “interactive triage process” setting it apart from other digitisation processes (Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016).

How do these trends affect (i) litigants (both potential and actual); and (ii) their advisors?

EC: Diversity means that litigants can enjoy a process tailored to their specific circumstances. For their advisors, it means being familiar with a larger body of practice directions, rules, guidelines and laws both domestic and international. Mandatoriness presents certain risks to particular groups of litigants that they may not appreciate. Advisors may have to do more to advocate their clients’ interests during the mediation or even go so far as urging the judges to make an exception to mandating mediation. This is quite a complex area and will require advisors to develop new skills, for example, in identifying certain traits of their client and the disputes that may make mediation risky.

DQ: Litigants now have great opportunity to experience a variety of ways to resolve a dispute, instead of being limited to having one’s “day in court” through a trial. Many of the court reforms to introduce diversity are intended to help the individual participate more fully in the justice process. They also offer litigants the opportunity to resolve their conflict in the most cost-effective way.

However, diversity may be a double-edged sword. The plethora of processes and the combination of options could potentially confuse the litigant. Diversity must thus go hand in hand with greater clarity and transparency about what each dispute resolution process involves. Advisors play a key role in this regard. As Eunice shared, they will need to understand how different processes work and be able to adapt readily to them.

What are some key opportunities arising from the courts’ encouragement or provision of mediation?

EC: The greatest opportunity I’ve seen is the growing accessibility to and innovation in mediation. The resources of the courts give them the ability to pilot and implement innovative strategies that can better serve their users. For example, on 5 February 2018, the Singapore State Courts launched the second phase of the Community Justice and Tribunals system, which now allows neighbour dispute claims to be filed online and also resolved through online mediation sessions. British Columbia’s Civil Resolution Tribunal for small claims and strata disputes mentioned by Dorcas earlier is another example of providing convenience and access to ordinary citizens.

DQ: There is certainly great promise arising from the courts’ active encouragement of the use of mediation. Mediation was probably not as well understood a decade ago compared to now. What I have observed is a growing number of lawyers who understand how mediation works and who are better equipped to advise their clients on whether mediation is an appropriate process for their disputes. Lawyers also recognise the importance of mastering mediation advocacy, apart from trial advocacy. There are different techniques and skills to be honed by the solicitor in the mediation context compared to a trial setting. There is thus great opportunity for the lawyer’s role to evolve as an effective problem-solver. More significantly, the encouragement of mediation allows more individuals to experience the process. It is often hard to grasp the concept of mediation until one goes through it. An increased awareness of mediation may then translate into greater use of negotiation and mediation beyond the court setting for resolving disputes. Once legal proceedings have commenced, mediation is more challenging because the dispute is usually at a very advanced stage. Many barriers to resolution have to be slowly dismantled before the parties are ready to negotiate a settlement. There is a great need for our society to learn to prevent and manage disputes at an early stage, without necessarily having recourse to the courts.

What are some key problems / challenges arising from the courts’ encouragement or provision of mediation?

EC: A key challenge is in dealing with a different concept of providing access to justice. On the one hand, the court cannot shut people out from having their day in court should they so choose. Some cases are also best resolved and dealt with through the court system, perhaps because the coercive powers of the court are needed by the parties, On the other hand, if pursuing litigation is going to be disproportionately costly for all parties concerned and may also not lead to a sustainable outcome, isn’t the court justified in channelling cases to processes such as mediation? Where mediation is mandated, courts recognise that there are cases where exceptions can be made. How can and should these exceptions be articulated such that they are sufficiently nuanced without being over-inclusive? Is the broader public interest, for example, in developing the law a factor that can be considered or should the analysis be focused on the parties and their needs? These are examples of difficult questions in relation to access to justice that pose challenges for policy-makers, counsel, parties and academics operating within and studying the field.

DQ: The increasing diversity and the use of hybrid processes pose unique challenges to the courts. Given the rapid changes to the nature of dispute resolution and the presence of diverse processes, it is certainly no easy task to design effective dispute resolution processes that will enhance access to justice. The court needs to harness technology as well as the different features of various dispute resolution processes to thoughtfully design systems that will be easily understood and navigated by litigants. The courts also have to place greater emphasis on triage to ensure that the right process is matched to the dispute. It is evident that triage is an integral feature of both the British Columbia’s and the England and Wales’ online processes.  Such triage currently seems to involve substantial human intervention and is not merely reliant on automated processes. In short, an effective court dispute resolution process requires rather sophisticated and strategic design thinking. At the same time, the courts have to ensure that their processes are perceived by litigants to be accessible and fair. If litigants have trouble with IT literacy, the courts need to provide assistance so that the system is truly accessible to all. If mediation takes place online, the courts have to ensure that the system secures and protects the confidentiality of discussions. Online mediation or facilitation has to be conducted in a way that enables the parties to feel genuinely heard and understood. The challenges are manifold and the courts face a difficult task of balancing many interests in this complex environment.

What is the role of universities like SMU and academics like yourself amidst all these changes to the landscape - not just in Singapore, but internationally? By extension, how is the upcoming research forum and its possible outcomes valuable / important?

EC: I see academics as helping to answer the difficult questions. Judges, practitioners and policy-makers do not have the luxury of time to conduct in depth comparative research or empirical studies, or to think deeply about particular questions. The upcoming research forum will provide a platform for academics and practitioners to interact and to share their knowledge and experiences with one another, so that academia can inform practice and vice versa. DQ: Eunice and I view our role as academics as supportive and collaborative. Having worked in the judiciary and the dispute resolution industry, we have a good sense of the present challenges and opportunities arising from the changes to the dispute resolution landscape. I personally believe that academics play a key function of bringing greater insight on how best to navigate the increasingly complex issues confronting the legal industry and justice system. We do not profess to have all the answers, and we therefore work hand in hand with the practitioners to better understand the questions that need answering and to explore solutions to these difficult issues. As Eunice mentioned, there should be a seamless and reinforcing loop between practice and research. The upcoming research forum has been organised with the aim of encouraging mutual exchange and collaboration between practitioners and academics, with the overarching goal of improving access to justice. ***   If you found this interview helpful, hit the Facebook "Share" button below and like SIDRA's Facebook page!

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