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Mediation – meeting sectors’ needs
April 30, 2019
In Singapore, the Singapore Mediation Centre (SMC) has dealt with over 4000 mediations since it opened in 1997 and construction disputes currently make up around 40% of the cases heard there each year. In March 2019, the Singapore Construction Mediation Centre (SCMC) was set up by the Singapore Contractors Association in response to demand from its members. The Association plans for the SCMC to be an alternative to the SMC in cases where one of the disputing parties is a member of the Association. It is anticipated that cases will initially be between contractors and sub-contractors.
Confidence in mediation is high in Turkey following two schemes to implement mandatory mediation. Originally, mandatory mediation was introduced for employment disputes, with apparent success suggested by statistics released by Turkey’s Ministry of Justice showing mediation to have a settlement rate of 67% and to have caused a significant reduction on the amount of cases coming before the courts. Following on from that, the Turkish Parliament has passed a law introducing mandatory mediation for commercial disputes, having had mediation as a discretionary option for resolving disputes since 2013. The mandatory mediation requirement applies to proceedings brought after 1 January 2019, regardless of the value of the dispute. Under the new Article 5/A of the Turkish Commercial Code (TCC) an application for mediation is a pre-condition for bringing a legal action before the courts, meaning that a case will be dismissed by the court on procedural grounds if the claimant in a commercial action fails to fulfil this obligation.
Applications for mediation must be made to the mediation bureau located in the same jurisdiction as the authorised court. The mediation bureau chooses mediators from its list of registered mediators or alternatively the parties can agree a mediator from the list. Mediation proceedings must be concluded within 6 weeks of application, with a potential two week extension at the discretion of the mediator. A party that fails or refuses to participate in the mandatory first session will be required to pay the total cost of litigation, even in a case where the court ruling is in their favour. Whilst the obligation under the law requires parties to participate in mediation before going to court, they still have the right to refuse to settle during the mediation and can end the process whenever they wish.
In the Philippines, the Intellectual Property Office issued Revised Rules for Mediation which came into force on 5 October 2018. This revision was, interestingly, aimed at boosting the settlement rate of mediation. Data from the Bureau of Legal Affairs identified that 1,140 of the 1,150 cases which began the process of mediation prior to the revision, completed the mediation process but the settlement rate was only 42.9%. The IPO stated that the move towards mandatory referral to mediation has been launched “in a bid to achieve a quicker, more cost-effective, more amicable means of resolving IP disputes”.
The debate about whether mediation ought to be mandatory in civil and commercial disputes in UK continues. Developments elsewhere indicate that for a range of reasons, parties are being compelled to at least consider mediation as a serious alternative to litigation. It is hoped that the Court of Protection mediation pilot in England and Wales will in due course provide more information as to how mediation works in that field.
