Resolving Disputes

Anil Changaroth
Y ou r
R ig
ht
s
&
Op
Resolving
tio
ns
Disputes
Resolving Disputes
This concise yet thorough guide presents the many
Appropriate Dispute Resolution (ADR) mechanisms
available, such as negotiation, conciliation, mediation, A guide to the options
for Appropriate Dispute
neutral evaluation, expert determination, adjudication,
arbitration, dispute boards, litigation, dispute
Resolution (ADR)
resolution clauses and online dispute resolution.
Each dispute resolution mechanism is clearly

explained, with practical considerations as to how
they may be appropriate. The key differences between
the various mechanisms are provided in an easy-to-
read table. The author also explores the reasons a
party may need to adopt a particular method.
The international perspectives of ADR are also

considered in this book.
Marshall Cavendish Editions
Business/self-help
ISBN 978-981-4828-51-2
,!7IJ8B4-icifbc!
Anil Changaroth
Resolving Disputes cover.indd 1 22/3/19 2:52 PM

Resolving Disputes
Your Rights & Options
Resolving
Disputes
A guide to the options
for Appropriate Dispute
Resolution (ADR)
Anil Changaroth
© 2019 Marshall Cavendish International (Asia) Pte Ltd
Text © Anil Changaroth
Published by Marshall Cavendish Editions

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National Library Board, Singapore Cataloguing-in-Publication Data
Names: Changaroth, Anil.

Title: Resolving disputes : a guide to the options for appropriate dispute resolution
(ADR) / Anil Changaroth.
Description: Singapore : Marshall Cavendish Editions, [2019]
Identifiers: OCN 1086160956 | ISBN 978-981-48-2851-2 (paperback)
Subjects: LCSH: Dispute resolution (Law)--Singapore.
Classification: DDC 347.595709--dc23
Printed in Singapore
CONTENTS
Acknowledgements 7
Introduction 9
1 Negotiation 19
2 Conciliation 26
3 Mediation 32
4 Neutral Evaluation 54
5 Expert Determination 66
6 Dispute Boards 77
7 Adjudication 88
8 Arbitration 101
9 Litigation 110
10 Dispute Resolution Clauses 122
11 Online Dispute Resolution 127
12 INTERNATIONAL PERSPECTIVES 133
Concluding Remarks 141

Annex 145
About the Author 149
Acknowledgements
To my community in the Taman Jurong constituency (including

members of Tasek Jurong) under the Honourable Deputy Prime
Minister Tharman Shanmugaratnam. While I lived in Jurong
Town for the first 33 years of my life until 1998, it was the last 23
years (after coming into legal practice) serving the community with
pro bono legal services (with conversational Mandarin, Malay,
Tamil, my mother tongue Malayalam, and smatterings of Hokkien)
that truly humbled me into appreciating the extent of basic needs,
concerns and issues (at times legal) that many in the community face
in their daily lives. While these may seem insignificant to some, they
are to many of them serious issues. To them, this guidebook will, I
hope, take away the fear of facing legal issues, knowing full well that
when disputes arise, it is not a case of having no control over the
rigours of litigation, instead, they can each be totally in control and
in charge of how they would like to resolve such matters.
To my family, my best half Shyamala (with her literary approach

to life) and sons Keshav (having also interned at my chambers
and always has a somewhat simpler take on all things important),
Akshay (a seasoned debater, who often considers matters from
differing view points) and Tejas (the family’s “happy pill”, with
his incredibly positive attitude to life). All four of them are avid
8 Resolving Disputes
readers, who are constantly amused at how I am not able to read

as prolifically as they do and my dreadful attention span (except
when it comes to watching television). It was their individual
passion for sharing from their reading that provided the greatest
impetus for me to embark on bringing this book to life. And
most importantly, my late father, Padmanabhan (Papan) Kottayi
Changaroth, who in the 1980s was so instrumental in guiding
me down this path to this noble profession. His own father was,
in the early 20th century, facilitating negotiations and mediating
disputes as a Panchayath village council head in Kuthuparamba,
Kottayampoyil in Kannur district, Kerala, India.
And to my team at ChangAroth Chambers LLC – my associate Syafiq

Muhammad Lim, LLB (Hons), National University of Singapore,
who provided his polished, calm and meticulous detailing of
several aspects of this book; practice trainee Mikhail Rashid Wee,
LLB (Hons), Singapore Management University, who provided
the fresh graduate’s clarity and accuracy on the legalities; intern
undergraduate Serena Mei Shien Russell, BSc in Management,
University of Warwick Business School, who provided insightful
perspective from a common person’s understanding and views
on dispute resolution; intern “A” level Affiqah Juffri Syuriah,
Pioneer Junior College, Singapore, who shared her knowledge on
mediation and online dispute resolution from her final-year project
on community mediation; and ChangAroth Chambers and
ChangAroth InterNational Consultancy’s alliance partner Resolve
Disputes Online trailblazing the Online Dispute Resolution
arena and collaborating with my chambers and consultancy’s
development of community mediation, adjudication and dispute
board ODR platforms.
Jai Shree Hanuman

INTRODUCTION
Our everyday interactions with a whole host of people often

lead to disagreements, usually arising from the background of
contractual agreements or understandings. These could well
lead parties to engage lawyers and ultimately turning to the
courts for resolution.
The Abraham Lincoln (16th President of the United States)

quote “Discourage litigation. Persuade your neighbours to compromise
whenever you can. As a peacemaker the lawyer has superior opportunity
of being a good man. There will still be business enough.” forms the
foundation of this guidebook aimed at providing an overview and
assisting parties in understanding the diversity of options available
for less acrimonious dispute resolution.
The nature of the dispute and how the parties wish to take the
dispute forward would possibly determine the best and most
suitable method to be adopted when the need so arises for a
dispute settlement.
With a clearer understanding of the basic dispute resolution

mechanisms available and how these work, many disputes are
likely to be resolved in the most appropriate manner, in the fastest
time and at the most efficient cost.
The author, in this guidebook, refers to these mechanisms as

Appropriate Dispute Resolution (“ADR”) as opposed to what
is commonly known as Alternative Dispute Resolution, as these
are no longer simply alternatives to the conventional dispute
resolution mechanism of litigation or arbitration.
The speed, efficiency, and binding nature (often so agreed upon)

of these mechanisms are aimed at achieving resolution for the
parties, and have resulted in considerably less ill-will being
generated between disputing parties. To that end, ADR has a key
advantage in situations where parties have to continue interacting
even after settlement is reached and hence, for several years now,
these more appropriate options have increasingly been chosen.
Well-run processes and conclusions can often even improve
parties’ relationships.
Understanding Basic Terms

Experience from working with members of the communities and
clients have repeatedly reminded this author that it is critical to
first understand some of the basic terminology:
“Appropriate” refers to as what is considered the most suitable

approach, unique and specific to one’s needs.
“Claim” refers to stating or asserting the case that one raises,

usually supported with evidence.
“Demand” refers to formally raising a claim alleging legal

obligations that may have been breached or defaulted upon, and
are to be distinguished from a lawsuit and/or suing a party.
INTRODUCTION 11
“Dispute” refers to the disagreements that naturally arise out of

the parties being unable to agree on the contract or agreement.
“Resolution” refers to the logical conclusion where a solution

addresses the dispute and achieves the appropriate result for the
parties involved.
“Suing” refers to commencing or instituting formal proceedings

as opposed to merely making a demand (which is not a lawsuit).
ADR processes are generally far less adversarial than litigation

considering these often take place in an environment of co-
operation that characterises them. Considerably less ill-will is
generated between disputing parties.
The appropriate mechanisms considered in this guidebook are

Negotiation, Conciliation, Mediation, Neutral Evaluation &
Determination, Expert Determination, Adjudication, Arbitration,
Dispute Boards and Litigation. Dispute Resolution Clauses,
Online Dispute Resolution and international perspectives on
ADR are also considered.
Dispute Resolution Processes

Dispute resolution mechanisms can generally be divided into
two main processes: Consensual processes such as Conciliation,
Negotiations and Mediation, where parties have control over the
process and attempt to reach an agreement between themselves
and Adjudicative processes such as Expert Determination,
Adjudication, Arbitration and Litigation, where an impartial third
person, adjudicator, arbitrator or judge determines the outcome.
As disputes are often not straightforward, these two processes

should not be considered as being mutually exclusive and so
parties should not bind their hands to merely one process. A
combination of the processes may also be helpful with cost and
time savings.
Due consideration must, however, be given to the risks involved

in carrying out these processes in certain ways insisted upon
by the parties. For example, parties may insist on conducting
mediation in the manner of litigation hearing, resulting in it
being no different from litigation in terms of time and cost.
In a similar vein, even if mediation succeeds, the enforceability
of a mediated settlement may nonetheless cause unease
and uncertainty.
Multi-tier Dispute Resolution

As dispute resolution mechanisms are not to be seen as being
mutually exclusive, parties may well agree on the application
of these processes in a multi-tiered dispute resolution clause
allowing them to adopt a simpler method before advancing to
more adversarial processes.
Relevant Considerations for Choosing a Mechanism

There is a wide array of practical considerations to take into
account when choosing the appropriate dispute resolution
mechanism to govern parties’ contracts and/or to resolve parties’
disputes, including whether the pace of proceedings is suitable
for the parties, whether disputes are likely to be factual or legal
and many other common factors.
INTRODUCTION 13
For example, in a construction contract where disputes arise

in the middle of a project, it is crucial for parties to keep to
their timelines and hence an expedient resolution would be
the prime concern at the top of the parties’ priorities. Thus,
the dispute resolution mechanism that is chosen by the parties
ultimately depends on the nature of the contract, the complexity
of the dispute, the needs of the parties, whether they wish to
maintain amicable ties after resolving the dispute, amongst
other considerations.
Dispute Resolution Forums

There are numerous forums through or at which claims are
attended to and resolved, namely:
(1) Community Disputes Resolution Tribunal (“CDRT”)1

The CDRT (as part of the State Court) was established through
the enactment of the Community Disputes Resolution Act2 that
created a new statutory Tort of Interfering with the enjoyment
or use of places of residence, on the principle that no individual
should cause any unreasonable interference with his neighbour’s
enjoyment or use of that neighbour’s place of residence.
(2) Community Justice Centre (“CJC”)3

The CJC is an independent charity dedicated to the purpose of
ensuring that Litigants-in-Person (“LiPs”) also have access to
justice through the concept of community partnership. The CJC
is the result of the partnership between the public sector, the
philanthropic sector and the legal profession, in order to better
1 https://www.statecourts.gov.sg/CWS/CDRT
2 Community Disputes Resolution Act 2015 (Act 7 of 2015)
3 https://cjc.org.sg
ensure that those who have been wronged, but do not have the
means to make their voices heard, have access to the justice that
they should be getting.
(3) Community Mediation Centre (“CMC”)4

The CMC provide mediation services to residents in Singapore
who face social, relational and community disputes. The CMC
is operated by the Community Mediation Unit comprising full
time public service officers of the Ministry of Law and volunteer
mediators. Mediation through the CMC is suitable for disputes
arising between neighbours, family members, friends, colleagues,
tenants or any other type of interpersonal relations.5 Parties
must be aware that mediation at the CMC is not tailored for
legal, contractual or commercial disputes. Interested applicants
may apply online directly with their Singapore Personal
Access pass (“SingPass”).
(4) Employment Claims Tribunal (“ECT”)6

The ECT deals with disputes arising between employees and
employers in the course of one’s employment, and whether you
are an employee or employer. Established under the Employment
Claims Act,7 it provides both employers and employees with
a speedy and low-cost avenue to resolve their salary-related
disputes. Interested parties can only file their ECT claims
online through the Community Justice and Tribunals System
(“CJTS”), with mediation being compulsoryfor parties.
4 https://www.mlaw.gov.sg/contents/CMC/
5 https://www.mlaw.gov.sg/content/cmc/en/Our_Services/disputes-suitable-for-mediation0.html
6 https://www.statecourts.gov.sg/cws/ECT/Pages/An-Overview-of-the-Employment-Claims-
Tribunals-(ECT).aspx
7 Employment Claims Act 2016 (Act 21 of 2016).
INTRODUCTION 15
(5) Family Justice Courts (“FCJ”)8

The FJC are established under the auspices of the Family Justice
Act9 and forms a specialised body of courts dealing exclusively
with all family-related matters, in order to better understand
the complexities underlying family disputes, and to have better
consistency in the administration of justice. The FJC is comprised
of the Family Division of the High Court, the Family Courts,
and the Youth Courts (formerly known as the Juvenile Courts).
(6) Small Claims Tribunal (“SCT”)10

The SCT was first formed in 1985 in order to provide a swift and
cost-effective forum for the resolution of small claims between
consumers and suppliers for claims up to S$10,000.00 (or
S$20,000.00 subject to parties’ consent) filed within one year from
the date on which the Cause of Action accrued on sales of goods,
provision of services, tort for damage caused to property, refund of
motor vehicle deposits and specific aspects of lease of residential
premises. The SCT now uses the same electronic case filing and
management system, the Community Justice & Tribunal System
(“CJTS”), thus allowing parties to file claims and access court
e-services from any location with an internet connection.
(7) State Courts Centre for Dispute Resolution (“SCCDR”)11

The SCCDR is court annexed mediation through judge led court
dispute resolution of civil, commercial, criminal and Tribunal
matters. The SCCDR also conducts Neutral Evaluation, Judicial
Mediation and Conciliation.
8 https://www.familyjusticecourts.gov.sg/
9 Family Justice Act 2014 (Act 27 of 2014)
10 https://www.statecourts.gov.sg/cws/SmallClaims/Pages/GeneralInformation.aspx
11 https://www.statecourts.gov.sg/cws/Mediation_ADR
(8) Singapore International Arbitration Centre (“SIAC”)12

The SIAC is an independent, neutral and non-profit leading
international arbitration institute which provides neutral
arbitrations and its case management services to the international
business community and promotes arbitration as a preferred
mode of dispute resolution.
(9) Singapore International Commercial Court (“SICC”)13

Launched in 2015, the SICC is a division of the Singapore High
Court that is empowered to try, hear and decide on transnational
commercial disputes. It is also empowered by parties’ jurisdiction
agreement to submit to the SICC’s jurisdiction. The High
Court and the SICC may also transfer cases between each other,
depending on the suitability of the case at hand. It serves as a
companion rather than a competitor to arbitration, providing
one more option among a suite of viable alternatives to resolve
transnational commercial disputes.
(10) Singapore International Mediation Centre (“SIMC”)14

The SIMC is an independent, non-profit institution which
aims to provide world-class mediation services and products,
which are targeted specifically at parties’ needs in the context
of cross-border commercial disputes, with a particular focus on
Asia, with case management under SIMC Rules. Settlement
agreements are enforceable as a consent order under the
Singapore Mediation Act or as an Arbitral Award under the
Arb-Med-Arb Protocol.
12 https://www.siac.org.sg
13 https://www.sicc.org.sg
14 http://simc.com.sg/
INTRODUCTION 17
(11) Singapore Mediation Centre(“SMC”)15

The SMC provides mediation services such as commercial
mediation, small case Commercial Mediation Scheme, industry
schemes, Neutral Evaluation, Adjudication, Singapore Domain
Name Dispute Resolution Services, consultancy, Family
Mediation, and the recently launched Singapore Infrastructure
Dispute Management Protocol. The SMC also provides training
in negotiation, mediation and conflict resolution.
(12) State Courts of Singapore

The State Courts of Singapore comprise the District Courts
and Magistrates’ Courts – both of which oversee criminal and
civil matters – as well as the Coroner’s Courts, the Small Claims
Tribunal, and the Employment Claims Tribunal. More details
can be found in the chapter on Litigation.
(13) Supreme Court of Singapore

The Supreme Court consists of the High Court and Court of
Appeal and hears both criminal and civil cases. In criminal cases,
the High Court is empowered to try all cases. More details can
be found in the chapter on Litigation.
(14) Tripartite Alliance for Dispute Management16

The Tripartite Alliance for Dispute Management (“TADM”) was
jointly set up by the tripartite partners: the Ministry Of Manpower
(“MOM”), the National Trade Unions Congress (“NTUC”) and
the Singapore National Employers Federation (“SNEF”) to help
employees and employers manage employment disputes, or self-
15 http://www.mediation.com.sg/about-us/#mediation-as-a-stance
16 http://www.tadm.sg/about/
employed persons manage payment-related disputes, amicably. It

operates mainly out of the Devan Nair Institute for Employment
and Employability.
1
NEGOTIATION
General Overview of Negotiation

Negotiation involves two parties discussing their positions with
respect to a situation/matter/dispute in hope of achieving an end
that is satisfactory for both parties. It is often the most obvious
and preferred route for parties to settle a dispute.
Negotiation can generally take place at any stage of parties’

dealings with each other even before a dispute has formally
arisen. There is an unlimited range of solutions available to
parties (subject to what is enforceable), and parties have full
control of the process and the outcome, subject only to what
they are able to agree on. As such, it allows for the preservation
of relationships, and it is usually confidential and cheaper that
the other dispute resolution mechanisms.
In a commercial setting, negotiation is most effective between

fully briefed senior executives who have all the authority needed
to settle the parties’ various disputes. These senior executives may
most likely have the greatest emotional investment in it too.
With the senior executives, it may well become less about the rights
and wrongs of a dispute or legal justice, but instead more of a matter
of commercial pressures, bargaining and compromise driven by the

parties’ need to move on and to not get stuck in the dispute.
However, with a private dispute, detaching emotions from the

issues may be considerably more difficult for parties, when their
only wish is to achieve a solution that can be seen as just and fair
by all.
A negotiator’s skills will also affect how successful the negotiation

is as it will depend on the negotiator’s ability to shift the parties
from taking “positions”/“rights” to considering “interests” of the
parties. These factors contribute to negotiation being the simpler,
most flexible, quickest and cheapest form of dispute resolution.
Weighing Options
During negotiations, it is common to come across the terms
“BATNA”, “WATNA” and “MLATNA”, which are benchmarks
that parties can use to determine whether they should settle or
walk away from the negotiation.
(1) Best Alternative to Negotiated Agreement (“BATNA”)

BATNA is essentially the most favourable course of action
available to a party in the event that they cannot come to an
agreement with the other party. Knowing your BATNA allows
you to better gauge the relative advantages of entering into the
negotiated agreement, and to also consider the “intangibles”
which should influence the opponent’s approach to the
negotiations. The better your BATNA, the greater your power.
You should therefore explore vigorously what you will do if you
do not reach agreement, as this can strengthen your hand.
NEGOTIATION 21
Whether one discloses one’s BATNA to the other side depends

on one’s assessment of the other side’s thinking. If you have an
extremely attractive BATNA, let the other side know it. If they
think you lack one, when in fact you have one, then you should
also let them know it. However, if your best alternative is worse
for you than they think, do not weaken your hand by disclosing
it. Consider the other side’s BATNA. If their BATNA is so
good that they do not see a need to negotiate on the merits, you
must consider what you can do to change it. If both parties have
attractive BATNAs, the best outcome for both parties may well
be to not reach agreement.
(2) Worst Alternative to Negotiated Agreement (“WATNA”)

Similarly, WATNA is essentially the least favourable course of
action available to a party in the event that they cannot come to
an agreement with the other party. For instance, parties might
consider that in the event they are unable to reach a settlement,
they would have to go through the formal court process to
resolve the dispute, which might be something they wish to
avoid at all costs.
Knowing the other party’s WATNA and your own WATNA is

useful as they know their minimum point and know when to
be more accommodating towards other options for fear of your
WATNA. If both parties prioritise avoiding their WATNA,
they may be more willing to compromise and reach a settlement.
However, if one party’s WATNA is not compelling, they might
decide to walk away from the negotiation.
(3) Most Likely Alternative to Negotiated Agreement

(“MLATNA”)
MLATNA is the best estimate or reality check of outcome. Here,
parties are not looking at the best or worst case scenarios, but the
most realistic outcome, in light of all the circumstances, should they
fail to come to an agreement. Considering a MLATNA means
that each party thinks about what a neutral decision maker would
mostly likely decide and it prevents parties from being entrenched
in their own views. If one’s MLATNA is not that different from
the negotiated settlement, parties may compromise and this allows
for settlements to be reached far more expeditiously.
Facilitating Negotiations
Parties are often encouraged to think creatively and to brainstorm
during negotiations, including suggesting as many solutions as
possible, to help frame and prioritise the options for the parties,
while keeping track of all the suggestions, thus focusing the
parties’ attention and provide a record for future discussion
and analysis.
At this time, the facilitator should be alert to any negotiation

traps that the parties may fall into. These will only slow down
negotiations and move the parties away from a solution. The
traps a mediator should look out for include the Investment Trap,
the Reactive Devaluation Trap, the Predictability Trap and the
Familiarity Trap.
(1) Investment Trap

Parties often defend their past investments vigorously, even when
these investments were clearly mistakes. Part of this stems from
NEGOTIATION 23
an aversion to having to suffer the “humiliation” of admitting to

bad judgement. This unwillingness to admit mistakes bogs down
the negotiating process, with parties often failing to realise that
a corporate culture that leaves no room for mistakes causes their
negotiators to place unwarranted restrictions on themselves
during a negotiation.
To allow for effective negotiations, a facilitator may assist the

parties by helping them to honestly examine whether reluctance
to break out of an investment trap is not largely due to a wounded
self-esteem, and then confronting this fear. This is best done in
the context of a caucus.
(2) Reactive Devaluation Trap

Parties may undervalue or devalue a proposal simply based on the
source of the proposal or the context, for example from someone
they perceive as an adversary, even if an identical offer would
have been acceptable when suggested by a neutral or an ally. In a
similar vein, they often value a concession that is offered less than
a concession that is withheld.
(3) Predictability Trap

People are generally quite good at predicting certain matters such
as time, distance, weight, volume, etc. They become increasingly
accurate in their predictions thanks to the regular feedback they
receive. However, our ability to make predictions about less
certain matters (such as future prices, the weather, etc) is limited
by over-confidence, over-cautiousness and our memories.
For example, those who overestimate the possible growth in

earnings of a company are likely to be prone to offering wage
deals that will expose the company to serious future difficulties
while those that underestimate earnings growth is likely to
forego a settlement that could have been achieved through a
slightly more flexible approach.
When faced with decisions that could have important

consequences, many negotiators choose to “err on the safe side.”
Similarly, in budget negotiations, heads of department adjust
their forecasts to “be on the safe side.” This causes drawn out
negotiations and often results in unnecessary competition.
Negotiators may allow dramatic past events embedded in their

memory banks to influence predictions they make during a
negotiation. For example, the notion that a negative event
which occurred in the past may happen again could dominate a
negotiator’s thought process.
(4) Familiarity Trap

Negotiators frequently negotiate to maintain the status quo. This
stems from a natural reluctance to break out of their comfort zones.
Further, those designated to negotiate on behalf of companies or
institutions are often strongly conditioned to maintain the status
quo. This is because experience has taught them that venturing
beyond the status quo is potentially dangerous.
Breaking Deadlock
Often, there is an impasse in negotiations as a result of the fact that
one party still has an emotional issue that has yet to be addressed,
NEGOTIATION 25
for which an apology may have to be made. When legal advisors

are present, they may also have warned parties about making
possible admissions of liability through apologies, and so parties
may be reluctant to do so for fear of jeopardising their position.
There may be other reasons for a deadlock during negotiations.

Common ones include a mediator’s failure to control the process;
a mediator’s failure to recognise or deal with the parties’ emotions,
such as anger; the parties’ adoption of a positional negotiation
stance; and one party’s realisation that he has made too many
concessions without any returns.
The negotiator can pick up on many of the above reasons

if he/she is alerted to the signs that will be evident from the
parties’ behaviour.
Impasses are common in many negotiations, for which there are

strategies that can be employed to try to break the deadlock, such
as encouraging the parties by reminding them of the progress
made so far and the common ground between them; consider a
break in the proceedings to allow the parties some time to rest and
reflect where necessary to cool down; take the parties into caucus
if he feels that they need to vent or that he needs an opportunity
to make them consider their WATNA positions, this will add
some reality and perspective to their thinking and could help to
break the deadlock; and remind the parties of external pressures
to settle, such as deadlines and court dates.
2
CONCILIATION
DISPUTE KEY FEATURES STRENGTHS BEST USED

RESOLUTION FOR
MECHANISM
Conciliation • Appointment of • Party autonomy • When a dispute
neutral third party to • Conciliator’s has just arisen,
persuade parties to expertise in order to
arrive at agreement prevent it from
• Informal and
• Conciliator has no escalating any
flexible setting
determinative role on further
• Private &
content of dispute or
confidential
its outcome
(“P&C”)
• Merely advises parties
and makes suggestions
for settlement
See consolidated table in the Annex for comparison of mechanisms.
General Overview of Conciliation

Conciliation involves two parties who, out of their free consent,
appoint an unbiased and disinterested third party (a conciliator),
who attempts to encourage them to arrive at an agreement,
by way of mutual discussion and dialogue.1 It is is a voluntary,
flexible, confidential and interest-based process.
1 http://www.dispute-resolution-hamburg.com/conciliation/what-is-conciliation/
https://keydifferences.com/difference-between-mediation-and-conciliation.html
CONCILIATION 27
The conciliator has no determinative role on the contents of the

disputes or the outcome of its resolution but may provide advice,
determine the process of the conciliation, make suggestions for
terms of the settlement and actively encourage the participants
to reach an agreement which accords with the requirements of
the statute.
Benefits of Conciliation
Benefits or advantages to conciliation as an ADR mechanism
include:
a. party autonomy – conciliation ensures party autonomy
as the parties can choose the timing, language, place,
structure and content of the conciliation proceedings;
b. expertise of the decision-maker – parties are free to
select their conciliator, who does not have to have a
specific professional background, and may be selected
based on criteria such as experience, professional
and/or personal expertise, availability, language and
cultural skills. A conciliator should be impartial and
independent;
c. time and cost-efficiency – due to the informal and
flexible nature of conciliation proceedings, conciliation
can be conducted in a timely and cost-efficient manner;
and
d. confidentiality – parties in conciliation proceedings
usually agree on confidentiality and thus disputes can
be settled discreetly without divulging any business
secrets.
Fundamental Principles
(1) Difference between mediation and conciliation: role of
the third party
The main difference between conciliation and mediation
(explained in detail in the chapter below) proceedings lies at
some point during the conciliation, where parties request the
conciliator to provide them with a non-binding settlement
proposal. In conciliation, the conciliators:
a. may not follow a structured process, instead they
administer the conciliation process as a traditional
negotiation, which may take different forms depending
on the case;
b. when proposing a settlement, they will have to take into
account their commercial, financial and/or personal
interests and possibly legal position (with possible
assistance from lawyers if they represent parties for
the conciliation).
Contrastingly, in mediation, mediators (in especially facilitative):

a. do not make such a proposal as they are supposed
to adopt an absolutely non-interventionist stance
and serve only to guide parties to reach a settlement
that they both agree upon with the lawyers active in
mediation in generating and developing innovative
solutions for settlement;
b. control the process through different and specific
stages: introduction, joint session, caucus and
agreement, while the parties control the outcome.
CONCILIATION 29
(2) Difference between arbitration and conciliation

The conciliator is an impartial person who assists the parties by
driving their negotiations and directing them towards a satisfactory
agreement. This is much less adversarial than arbitration in which
an impartial third party is appointed to study the dispute and hear
both parties to arrive at a decision binding on both parties. This is
similar to a courtroom proceeding, in which witnesses, evidence,
cross-examination, transcripts and legal counsel are used. Details
on arbitration are also explained in the chapter to follow.
Conciliation is used almost preventively, as soon as a dispute or

misunderstanding surfaces with the a conciliator working to stop
a substantial conflict from developing. This is unlike arbitration,
which intervenes in the dispute when it has already surfaced and
is difficult to resolve without professional assistance.
The decision made by arbitrators is binding on both parties. A

conciliator does not have the right to enforce his decision.
Stages of Conciliation
There are generally five stages to a conciliation:
a. Preparation and conciliator’s opening statement
The opening statement includes a brief description of the
role of the conciliator and participants, the conciliation
process and any ground rules.
b. Parties’ statements
Each party or their representative provides a statement
about the dispute from their perspective. Emerging interests,
needs and option for resolution are acknowledged for use
later in the conciliation.
c. Joint exploratory session and discussion

The conciliator will take an active role, summarising
views and options, and may also discuss with the parties
the strength and weaknesses of their case. The conciliator
encourages parties to communicate directly with each
other. This provides the basis for joint problem solving,
raising opinions for an agreement which may be followed
by further joint sessions where necessary. During this stage,
the parties may take a break from the joint session to give
lawyers instructions and consider offers or advice.
d. Private meetings
The conciliator may hold private meetings with each of the
parties. The conciliator may reality-test alternatives and
options, and comment about potential outcomes and the
strengths and weaknesses of each party’s case.
e. Concluding joint session
There may be a need for additional joint sessions, where
the conciliator will assist the parties to narrow the issues
in a dispute. The conciliator will facilitate final negotiations
and the fine-tuning of the agreement. Alternatively, the
conciliation may need to be adjourned or terminated.
Conciliation in the State Courts2

Conciliation in court proceedings are available at and conducted
by a judge of the State Courts Centre for Dispute Resolution. It
allows parties to seek guidance from the judge and so tap on the
judge’s experience and knowledge to come up with an optional
settlement for all parties.
2 https://www.statecourts.gov.sg/cws/Mediation_ADR/Pages/An%20Overview%20of%20
Conciliation.aspx
CONCILIATION 31
The judges will assist parties in their negotiations, providing

suggestions, developing proposals that are suitable and guide/
direct parties towards a mutually acceptable settlement.
Their respective lawyers would also be present. If the dispute is

between two corporations, each corporation would appoint a
representative who has the authority to settle the case to attend
the conciliation. If only a board or body has the authority to settle
the dispute on behalf of the entity, the company should send the
person who has the most knowledge about the case and has full
authority to attend the conciliation to settle the case.
3
MEDIATION

RESOLUTION FOR
MECHANISM
Mediation • Non-adversarial, non- • Cost-effective • Disputes in
adjudicatory method • Specialist which parties
of dispute resolution mediators still wish to
• Neutral third party with relevant maintain
with expertise subject-matter working
expertise relations after
• Focuses on parties’
the resolution of
interests as opposed to • Decision-
the dispute
their rights making power
still remains • Disputes in
• If parties can come
with parties which parties
to settlement, that
are still willing
settlement agreement • P&C
to compromise
may be recorded as
and work things
an Order of Court,
out
and enforced as such
(should the need arise)
General Overview of Mediation
An ounce of Mediation is worth a pound of Arbitration and a ton

of Litigation.
Joseph Grynbaum1
1 Joseph Grynbaum, PE (USA) is an international mediator with Mediation Resolution

International, LLC, and a contributing author with Kluwer Mediation Blog.
MEDIATION 33
Mediation involves a neutral third party (Mediator) appointed

by disputing parties to help parties themselves consider and find
the most mutually acceptable solution to the parties’ disputes.
The rights and interests of the parties are at the forefront of
mediation, and the result remains completely in the parties’
power.2 This is particularly significant when mediation has
to take place during an ongoing project or enterprise because
the resolution of disputes clears the way for more cooperation
between the project participants.
As a non-adversarial and non-adjudicatory method of resolving

disputes, mediation has been considered a far better option, one
that is predominantly interest-based as opposed to rights-based.
Mediation sessions are faster and less expensive than Arbitration

or Litigation, usually taking no more than a day or two compared
to Arbitration or Court hearings.
Ad hoc and Institutional Mediations

In considering which process is best to conduct their mediation,
parties have the choice of opting for ad hoc or institutional services
of a mediation centre. For ad hoc mediations, parties are free to
decide the process, from appointment to venue to details of cases to
be presented. This may be preferred by companies with in-house
legal departments, possessing the capacity and manpower to handle
organisational details. Institutional mediations, on the other hand,
are carried out through the Singapore Mediation Centre (“SMC”)
and the Singapore International Mediation Centre (“SIMC”), both
having its own set of rules detailing all aspects of the procedure.
2 https://mediatorselect.com/blog/articles/is-mediation-right-for-you/
The key difference between these two processes is that for

institutional mediation, the institution has rules that can aid in
the swift and efficient handling of the mediation. For instance,
when a party applies for institutional mediation at the SMC,
a secretariat will examine the party’s case and recommend
a mediator with the appropriate expertise. With a large pool
of accredited mediators, it is likely that parties will be able to
find mediators that are able to best mediate their dispute. The
SMC maintains its own expert panel of mediators trained and
experienced in most of the fields of the disputants’ professions.3
Court Annexed Mediation in Singapore

In Singapore, court annexed mediation is one of the two main
avenues through which mediation is conducted after parties
have commenced legal proceedings.
(1) Supreme Court

The Supreme Court Practice Directions amended in January
2014 reinforces the courts’ mediation framework, with the
introduction of the “ADR Offer Procedure”, aimed at encouraging
litigants to consider mediation and other forms of ADR at
initial stages of legal proceedings. In 2016, the Supreme Court
Practice Directions were again amended to emphasise the
importance of impressing upon parties the various ways their
disputes could potentially be resolved using an appropriate
form of ADR.4
3 http://www.mediation.com.sg/expert-panels/international-mediators/
4 http://www.supremecourt.gov.sg/docs/default-source/default-document-library/rules/pd-amd-
no-1-of-2016.pdf
MEDIATION 35
Judges and Registrars managing the pre-trial processes/

conference are expected to assess the suitability of a dispute for
mediation at an early stage and where appropriate, the parties
are encouraged to consider mediation before proceeding further
with the litigation process.5 The courts may stay proceedings or
adjourn hearings to allow for mediation to occur. Almost all
cases at the State Courts undergo mediation.6
(2) State Courts7

The State Courts of Singapore channels different kinds of
disputes to various mediation centres (both within and outside
the court system).
On 4 March 2015, the State Courts Centre for Dispute

Resolution8 (“SCCDR”) was launched in an effort to encourage
the use of ADR by litigants in Singapore, by offering a more
holistic and integrated approach to disputes that more often than
not involved different aspects of the law.
The following are the types of matters that are usually referred to
mediation by the State Courts:
a. commercial claims;
b. personal injury claims;
c. non-injury motor accident (“NIMA”) claims;
d. medical negligence claims; and
e. magistrate’s complaints for minor criminal offences.
5 http://www.supremecourt.gov.sg/docs/default-source/default-document-library/media-room/
judicial-attitudes-to-arbitration-and-mediation-in-singapore.pdf
6 https://www.cliffordchance.com/content/cliffordchance/briefings/2013/03/international_
mediationguide.html
7 https://www.statecourts.gov.sg/Mediation_ADR/Pages/The-Mediation-Process.aspx
8 https://www.statecourts.gov.sg/Mediation_ADR/Pages/Overview-of-Alternative-Dispute-
Resolution.aspx
Court Dispute Resolution (“CDR”)

The processes of CDR for NIMA and Personal Injury claims
are distinct from those for all other types of civil cases. The main
distinction is the automatic referral for mediation (as the most
appropriate method of ADR for the particular matter) by the
courts with either party having an option to opt out of mediation
(with a valid reason and possible cost implications) versus the
option for parties to apply for CDR for the latter.
As a result, the abovementioned categories of claims have a

distinct set of CDR procedures as compared to other civil claims
made in the State Courts. Failure by the parties to comply with
these protocols may result in cost implications should it result in
a severe delay in the matter which could have been avoided by
using the ADR methods offered by the court.
(1) State Court type of cases

Personal injury claims
Personal injury claims (excluding medical negligence cases) will
be automatically referred for mediation within eight weeks after
the defendant responds to the claim against him or her. During
the CDR sessions, the judge will provide indications on both
liability and quantum of the claim.
Non-injury Motor Accident (NIMA) claims

NIMA cases are also routinely referred for mediation
approximately eight weeks after the defendant responds to the
claim against him or her. Notices to attend CDR are automatically
issued for parties and/or their lawyers.
MEDIATION 37
Medical Negligence claims

These claims also have automatic referral for mediation within
eight weeks of the defendant responding to the claim against him
or her.
Criminal matters
Magistrates’ Complaints are complaints that are filed by any
person seeking redress for an offence believed to be committed
against him or her. A notice may be issued for both the
complainant and respondent to appear for mediation before a
magistrate or in the Community Mediation Centre (“CMC”),
after the filing of a summons.
(2) Procedure
The mediators for such cases are either judges or voluntary
mediators accredited by both the State Courts and the SMC, in
the SCCDR. CDRs are conducted without prejudice to parties’
rights to proceed with the suit, and all forms of communication
are treated in strict confidence.
Lawyers representing the parties will submit their Opening

Statements in the prescribed format9 to the State Courts and all
other parties no later than two clear days before the mediation
session. Parties, their solicitors and expert witnesses must
personally attend the conference and must come fully prepared
to discuss their cases.
9 Paragraph 41 of the SCPD, Form 9J in Appendix A to the SCPD.

(3) Mediation session

A typical mediation session is usually conducted in the following
stages:10
a. Preliminary meeting – The lawyers representing the
parties will usually brief the mediator on the facts of
the case and the issues at hand to be discussed at the
mediation session. Litigants are usually not required to
be present at the preliminary meeting.
b. Meeting with all parties and lawyers present – The
mediator then proceeds to meet all parties, where
the mediator will introduce parties to the mediation
process they are about to participate in. Each party
then has an opportunity to present their side of the
dispute, and thereafter the mediator will facilitate a
discussion of the issues.
c. Separate meetings (caucus) – During various stages
of the mediation session, the mediator may call for
a caucus (a private session), where he speaks to the
parties separately in order to conduct a full and frank
discussion of the issues. In this way, issues can be
identified and everyone involved can proceed to map
out a suitable solution.
d. Conclusion of the mediation – If an agreement is
reached, the mediator meets with all parties and lawyers
to review and confirm the terms of the agreement. A
judge then proceeds to record these terms which then
serves as a binding agreement between the parties.
10 https://statecourts.gov.sg/CivilCase/Documents/Mediation.pdf
MEDIATION 39
Commercial Mediation Scheme @ SMC

Typically, a mediation session under the Commercial Mediation
Scheme is commenced in the following way:
a. Request for mediation at the SMC – Parties fill in the
Request for Mediation Form and send it to the SMC.
If not all parties have agreed to mediate, the SMC
will follow up with the relevant parties to invite and
persuade them to consider mediation.
b. Submission of administrative fees and documents –
Each party will pay the filing fee as well as forward all
relevant documents to the SMC. The SMC will make
administrative arrangements as well as appoint the
suitable mediators.
c. Preparing for mediation – After assessing the
submitted documents, the SMC may call for a pre-
mediation conference, if necessary; and/or request for
additional information to prepare parties for mediation
to maximise the chances of settlement.
d. On the day of mediation – Attending persons
must have the authority and mandate to settle at
mediation. Also, all interested parties must sign an
Undertaking of Confidentiality before participating
in the mediation.
e. Settlement agreement – If parties successfully reach
an agreement at the end of mediation, a settlement
agreement will have to be signed.
Family Justice Courts

Parties involved in divorce proceedings before the Family Justice
Courts may be referred for mediation through a Family Dispute
Resolution Conference, especially if there are children involved.

It is mandatory for the Family Justice Court to refer a matter to
mediation in the following cases.
At least one child is under 14 years of age

The mediation session will be held in the Child Focused
Resolution Centre (“CFRC”). The CFRC aims to help parents
in divorce proceedings identify and promote the best interests
of the child(ren) through mediation, build an appropriate and
sustainable parenting agreement allowing their children to
have a meaningful relationship with their parents; and learn
the effects of positive co-parenting sensitive to the needs of
their children.
At least one child is above 14 but under 21 years of age

The mediation session will be held in the Family Resolution
Chambers (“FRC”). The sessions are run by judge-mediators,
who are essentially judges who specialise in mediation.
Mediation in a family context allows parents to resolve their

issues amicably and to reach settlement on their own terms and,
more importantly, in the best interests of their child(ren). In
contrast, going to trial leaves the ultimate decision to the judge,
which may not necessarily satisfy the needs of the parties and/or
their child(ren). However, if the court considers that mediation is
not in the interest of the parties or children (for example, in cases
of family violence, where Child Protection Services are involved,
etc), mediation will be dispensed with.
MEDIATION 41
Mediation Methods
In mediation, there are three key differing methods adopted by
various institutions/mediators: facilitative mediation, evaluative
mediation and transformative mediation.
(1) Facilitative mediation

Facilitative mediation is the conventional mediation approach
based on the mediator facilitating the negotiation between
parties with the aim of reaching an agreement. In this type of
mediation, the mediator asks questions, summarises positions
and generally assists the two parties in coming to a resolution
based on the information available. The mediator is seen to lead
the mediation, but parties are ultimately the ones responsible
for agreeing to an outcome.
(2) Evaluative mediation

In evaluative mediation, the mediator has a more active role
in determining the outcome of the mediation. The primary
focus is to reach a quick deal. The mediator is allowed to make
recommendations to each party and the mediation approach
is based much more on evaluating the legal position of
each party.
(3) Transformative mediation

Transformative mediation is a relatively new approach. It is
premised on the concept that the relationship of the parties
may be transformed during the mediation process. Similar to
facilitative mediation, this approach also empowers the parties
to come to their own resolution. However, unlike facilitative
mediation where the mediator is the lead, in transformative
mediation, parties structure both the mediation process and the

outcome such that the mediator follows their lead.
(4) Collaborative practice

Collaborative procedure designed as an early intervention to be
used before litigation forms the non-adversarial, interest-based
negotiation methods that are moving steadily towards the forefront
of dispute resolution, in which there are several key differences.11
The focus is only on resolution and settlement by intention.

As such, the parties will typically save money, time, avoid the
collateral damage of litigation and still keep the decision-making
in their control.
Most parties turn to mediation too late, after filing a lawsuit and
later on in the litigation process. Due to this, parties have already
spent lots of time and money and have become more adversarial
and are simply turning to mediation to avoid the uncertainty of
putting their fate in the hands of a judge.12 It is also an ongoing
process while mediation is usually a one-day event.
Benefits of Mediation in Resolving Claims13

Mediation’s confidential nature ensures that any discussion
will not be disclosed during other further dispute resolution
processes such as arbitration and litigation in the event that
the mediation fails to achieve an appropriate resolution. This
ensures that parties involved can speak freely and without any
11 http://www.mediate.com/articles/ZeytoonianMbl20120228.cfm
12 http://disputeresolutioncounsel.com/2010/01/30/differences-between-collaborative-law-cl-and-
mediation/
13 https://www.linkedin.com/pulse/why-mediation-best-way-resolve-construction-claims-
prateapusanond
MEDIATION 43
hesitation or fear of the possibility that what they say would be

used against them. In doing so, it helps them be frank, honest
and upfront, in the hopes that all issues can be ventilated enough
to come to a settlement.
Parties in mediation still have the power to make decisions. They

are not left completely at the whims of a third party such as a
judge and can make calls that suit them. For example, they may
be able to pick mediators with a background that fits their claim
and disputes. Usually, once the claim escalates to arbitration or
litigation, much of the power and control is taken away from
them. Mediation is far more informal in nature and does not
need to be conducted at a fixed place. Should the parties wish,
they could opt to have the mediation wherever they prefer. They
can also opt for mediation without the presence of lawyers.
This, coupled with the low costs of the mediation process in

general, ensures that mediation is far less cost intensive and
not nearly as much of a financial burden as compared to other
resolution mechanisms such as litigation. Most importantly,
mediation has a higher possibility of the parties retaining
amicable relationships rather than the alternative that often
results from arbitration or litigation, where a party may be left
bitter or unsatisfied.
Fundamental Principles of Mediation

Considering its multitude of benefits, there are several factors that
have to be taken into consideration when conducting mediation
such that success is ensured, as best as possible. Before the mediation,
parties must make extensive planning and preparation, and have a
keen sense of understanding of the process of mediation, as well as

that of the others like litigation and arbitration.
Decision makers for both parties must ensure that they present
themselves adequately and their stances clearly so as to prevent
any misunderstandings and get their desires across accurately.
Moreover, they cannot be caught up in their own positions too
excessively; rather, they must be willing to listen and compromise.
They must also be able to present everything needed which
relates to the root cause of the dispute. Supporting documents,
claims and exhibits should not be held back in fear, and this is
especially necessary since what is disclosed during mediation is
confidential.
(1) Role of the mediator

In mediation, the mediator is a neutral third party who does
not act as a judge or adjudicator for the parties’ disputes. He or
she does not make a decision or give a substantive opinion as
to the parties’ position in the dispute. The mediator assists and
guides the parties towards their own resolution by helping parties
understand and focus on crucial issues in the dispute.
In mediation, the negotiators are the parties, but the mediator

has to utilise negotiation skills to urge the parties to set clear
negotiation objectives and then carefully consider whether the
status quo is conducive to achieving these objectives or acts as
a barrier. He can also help parties to maintain the flexibility
required to find negotiation alternatives outside the status quo
and to evaluate their advantages and disadvantages objectively.
Finally, the mediator can help by evaluating every alternative,
MEDIATION 45
including the status quo, in terms of future and present goals.

This way, the negotiators will not opt for the status quo merely
because it is too difficult to choose the best other alternative.
(2) Key principles of mutuality and confidentiality

While the process of mediation involves several interlinking
concepts, this section will focus on those concepts relating to
facilitative mediation as Singapore adopts the facilitative technique.
First, mediation is confidential. Mediation communications are

not disclosed to any other party or persons who are not involved
in the mediation.
Second, matters discussed or statements made by parties are

without prejudice to parties’ rights. This means that whatever
parties say during mediation cannot be used in a formal setting, for
instance, as evidence in court of a party’s admission. Unless parties
reach a formal agreement to which they both sign off, everything
said during mediation cannot be formally used against the parties.
(3) Managing parties’ emotions

In general, just as a negotiator should not allow his emotions
to take control, a mediator should also not display emotion.
However, during mediation, it is not just the mediator who has
to keep his emotions in check, he also has to control the emotions
of the parties who are the key negotiators of their interests.
Thus, the mediator may have to confront a party whom he

suspects is not fully engaged in the mediation, for example,
where several reasonable offers made by the other party have
been dismissed out of hand without any counter offers. When

the mediator does so, he should avoid blaming the suspect
party, but should emphasise his frustration with the delay in
negotiation proceedings.
The mediator must be ready to deal with a wide range of emotions

which may be expressed by the negotiating parties.
Anger is one of the main emotions displayed by negotiating

parties and must be managed by the mediator. He must ensure
that an angry outburst from one party does not cause the other
party to feel vulnerable, bullied or dominated. This may be done
by taking the parties in caucus. In such situations, the observation
of the parties’ body language is crucial. If a party’s anger cannot
be controlled, the mediator may decide to keep the parties on
caucus for the duration of the mediation or indeed to bring the
mediation to an end.
Where a party displays signs of distress, the mediator must satisfy

himself on the nature of the distress and what is causing it, in
particular, whether the distress is genuine or an attempt to get the
mediator on that party’s side.
The mediator may wish to allow some conflict to be displayed, as it

will give him an opportunity to study the behaviour of the parties.
He may also wish to acknowledge the conflict by mutualising it
using empathy, for example, by saying, “I can see that you are
both angry about this.” Another strategy is to normalise the
conflict, for example, by saying, “It is not unusual for people
in your situation to be angry.” Both these techniques have the
MEDIATION 47
advantage of acknowledging the emotions, but also highlighting

the common ground and can be a good platform to encourage
the parties that the conflict can be solved by mediation. The most
important thing for a mediator to do in these circumstances is
to manage the situation and to know when it is appropriate to
terminate the mediation.
(4) Dealing with imbalance of power between negotiating

parties in mediations
Where there is a power imbalance between the negotiating
parties during a mediation, it may be perceived that the mediator’s
neutrality has been compromised. Once the power imbalance
becomes apparent, the mediator should check if the weaker party
is aware of this.
Having ascertained that they are aware, the mediator should find
out if parties still wish to continue with the mediation and if
so, what they are more comfortable with (for example, caucus
sessions instead of joint sessions).
The weaker party may even ask for the mediator’s help in
formulating demands or offers. So long as the mediator does
not indulge in making the party’s case for them, there is no
compromise of neutrality.
Where the power imbalance is very great or where there are

complex legal issues and one party has received legal advice
whereas the other has not, the mediator may decide that he is
unable to continue with the mediation. In such cases, he should
explain this to the parties.
If parties who are in a power imbalance come to an agreement,

the mediator must check that each party understands the
agreement in full and that neither had felt pressured into entering
the agreement.
(5) Closing
Once the parties have reached an agreement, the mediator will
need to check the reality of this. The mediator should use the
agenda and earlier list of issues to check that everything has
been agreed and that the parties are certain that they have an
agreement that they are satisfied with.
The mediator should not express any value judgments on the

settlement reached by the parties. However, the mediator should
reality-test the agreement to ensure that it is workable. The type
of issues that the mediator should check include checking if the
time periods for compliance are realistic or if any figures need to
be checked by a financial advisor before they are agreed. Once the
agreement has been thoroughly tested, it can be transferred to a
written document.
Mediation Act and Rules

In Singapore, the relevant statutes and rules that apply to
mediations include the Mediation Act and the Mediation Rules.
These came into force on 1 November 2017 as part of a series
of measures to strengthen Singapore’s international commercial
mediation services and to promote the resolution of disputes by
mediation. The notable effects of the legislation are as follows:
a. Codification of common law provisions – The
provisions of the Mediation Act codify certain common
MEDIATION 49
law provisions such as confidentiality, providing greater

certainty and clarity for mediating parties.
b. Venue of mediation – Either conducted wholly or in
part in Singapore, or conducted elsewhere, as long as
the mediation agreement states that the Mediation
Act or Singapore law applies.
c. Mediation communication – Sections 2 and 4 of the
Mediation Act state that mediation communication
includes anything said or done, documents prepared,
or information provided for the purpose of the
mediation, such as mediation agreements entered into
prior to the mediation and the mediation settlement
agreement.
d. Inadmissibility of confidential communication –
Section 10 read with sections 2, 4 and 9 of the Mediation
Act provide the inadmissibility of confidential (subject
to stipulated exceptions) communications and section
9(2) lists ten situations where such confidentiality may
be breached and, in all other cases (section 11), the
party wishing to breach the confidentiality needs to
obtain leave of court to do so.
e. Mediated Settlement Agreement recorded as court
order – Section 12 of the Mediation Act provides that
once the necessary requirements (for example, the
mediation administered by a designated mediation
service provider such as SIMC, SMC, World
Intellectual Property Organisation Arbitration
and Mediation Centre, and conducted by a SIMI’s
Credentialing Scheme certified mediator or conducted
by a certified mediator) are satisfied, the mediated
settlement agreement must be recorded as a court

order, strengthening the enforceability of mediation
agreements, hence attracting cross-border users to
mediations in Singapore.
f. Stay of court proceedings – Section 8 of the Mediation
Act allows the court to stay court proceedings (similar
to those in the conduct of arbitrations) while they go
through the mediation process (which is provided for
by parties’ agreement).
Main Stages in the Mediation Process

In general, mediation proceedings often comprise four different
stages (of which the sequencing may be adjusted based on
judgment calls of the mediator and/or the agreement of parties).
Mediations typically begin with the mediator’s opening

statement that is addressed to all parties of the dispute. The
mediator will outline the aims of mediation, the mediator’s role
in the process and how the mediation will be conducted. The
mediator will also state the “rules” governing the discussions
or sessions with parties, in particular, that the proceedings are
confidential and that parties are to remain respectful towards
each other.
Following the mediator’s opening statement, parties will usually

begin with their opening statements in turn, without interruptions
from the other party. The parties will describe their side of
the story.
MEDIATION 51
After parties’ opening statements, the mediator will direct parties

to think of issues that they deem important to resolve the dispute
and follow-up with any proposed solutions parties have in
relation to the issues.
Once the mediator sees that parties have reached a certain level
of discussion and that it would be more appropriate to proceed
to private sessions, the mediator will ask for one party to exit the
room to conduct a private session with the remaining party and
vice versa.
During the private sessions, the mediator encourages the party

to tell the mediator anything that could not be revealed in the
joint session and to encourage the party to consider his/her
options, their BATNA, WATNA, etc, with the hope that each
party is able to reach a compromise with the demands of the
other party.
After both parties have completed their private sessions, the

mediator will generally conduct a joint session again where parties
will continue discussions and hopefully reach a settlement.
If parties manage to reach a settlement, they may record their

settlement agreement in brief either by the parties or the lawyer for
future follow-ups in which there will be a more detailed agreement.
If a settlement agreement is reached by parties, it generally acts

like a contract and can be enforced by parties in court in the event
of a further dispute.
Sample dispute resolution clauses that incorporate

mediation
SMC Model Clause
One example of a sample mediation clause is as follows:14
SMC Model Clause
Any dispute arising out of or in connection with this agreement must be submitted
for mediation at the Singapore Mediation Centre (SMC) in accordance with SMC’s
Mediation Procedure in force for the time being. Either/any party may submit a
request to mediate to SMC upon which the other party will be bound to participate
in the mediation within [45 days] thereof. Every party to the mediation must be
represented by [senior executive personnel, of at least the seniority of a Head of
Department] or its equivalent, with authority to negotiate and settle the dispute.
Unless otherwise agreed by the parties, the Mediator(s) will be appointed by SMC.
The mediation will take place in Singapore in the [English] language and the parties
agree to be bound by any settlement agreement reached.
Practical Considerations and Guidelines

A mediator (despite not being a negotiator in the negotiations)
can smoothen the process of negotiation by dealing with the
various problems that may arise. This can also aid parties to a
mediation by informing them of the considerations that a
mediator takes into account when conducting the session. It is
hoped that this would then encourage parties to put their best
negotiating foot forward, and come to the negotiating table with
the best appropriate attitude.
The mediator’s first role is to consider when the negotiations

will begin and if they should be in joint session or in caucus
(that is, meeting separately with parties whose interests are
identical/similar).
14 http://www.mediation.com.sg/about-us/#faqs
MEDIATION 53
Where the parties do not engage in a joint session, the mediator

may have to convey information and offers between the parties,
but ideally, the mediator should encourage the parties to
eventually come together in a joint session to begin generating
options for settlement.
In mediation, the mediator will not make a judgment or

determine who is at fault in the dispute. The mediator will focus
on helping the parties find solutions that meet their concerns
and needs. It is for the parties to decide whether to settle the
dispute as well as to determine the details of the settlement.
This is in contrast with litigation, where control is given up to
a judge in a trial where he will listen to the evidence and make
a decision that is binding. Hence, it is up to parties to decide
which avenue they think would be most suitable for resolution
of their dispute.
4
NEUTRAL EVALUATION

RESOLUTION FOR
MECHANISM
Neutral • “Test water” • Identifies and • Cases with
procedure focuses key issues substantial
Evaluation
• Best estimate of in dispute documentary
parties’ likelihood of • P&C evidence
success at trial • Parties can • Cases with
• Neutral third party determine conflicting
whether expert opinion
• Assessment of
parties’ realistic evaluation will be • Cases where
chances relative to binding or not both parties
each other • Fast believe they
have a strong
• General
case
application
General Overview of Neutral Evaluation (“NE”)

Neutral Evaluation between two parties involves a neutral third
party (the “Neutral”) appointed to assesses the merits of the
parties’ respective cases including the facts, evidence and legality
of specific issues, providing his/her best estimate of the parties’
likelihood of success at trial in an evaluation.
While the whole process is private, confidential and the

information disclosed without prejudice (meaning that such
NEUTRAL EVALUATION 55
information cannot be used if parties proceed to trial), the default

position is that the evaluation is not binding. The parties can
decide whether to make it binding, and if not then thereafter
start negotiating a settlement. When the parties choose to go
through a binding NE, they may also agree to record a consent
judgment (if the evaluation took place in the course of court
proceedings) or terms of settlement at the end of the NE to give
effect to the evaluation.
This process encourages parties to confront their positions

systematically at an early stage, and to identify and focus on key
issues. In this manner, the likelihood of a successful of settlement
is increased. If the parties understand the probable outcome
(rather than what they think, or have been advised is the likely
outcome), they will often attempt to resolve the dispute in order
to save unnecessary time and expense. Even if the matter goes to
trial, the number of days at trial and subsequently, the costs, are
reduced. Finally, the use of NE does not preclude the use of other
forms of ADR; it may be used in conjunction with other ADR
mechanisms should it not prove successful, and ultimately still
preserves parties’ rights in the substantive dispute.
General Principles Regarding NE

The basic aims underlying NE are the encouragement of stable
agreement and lasting peace between disputing parties. Essentially,
a fast and summary determination or evaluation of the dispute is
the guiding principle in NE. Other than that, the explicit aim of
NE is to provide parties with a without prejudice evaluation of the
strengths and weaknesses of their respective cases. As such, NE
generally takes the form of an NE hearing (possibly truncated, if
parties agree), whereby parties and their lawyers attend the hearing.
The parties would then be given the opportunity to make their
respective submissions or arguments. After all presentations and
evidence have been made or delivered, the Neutral will give an
objective assessment of the merits of the parties’ case.
At the NE hearing, the parties and their lawyers will present

their respective cases and the available supporting evidence to
one another and the Neutral. The key witnesses on each side will
be called to testify. Cross-examination of witnesses will generally
not take place. When separate expert witnesses are called, they
would give evidence using the “witness conferencing” approach,
which involves a joint discussion of the expert issues amongst the
experts in the presence of one another. The Neutral may, at any
time during the NE hearing, ask questions to probe or clarify
any submission or evidence presented by the parties and their
witnesses. Where suitable, the Neutral would also identify areas
of agreement or disagreement.
Benefits of NE
As NE serves to resolve matters before full-blown legal
proceedings by predicting the most likely outcome at trial, it
promotes early settlement of disputes which in turn saves on
expenses incurred by parties in the event that they proceed
to trial.
NE also:
a. Narrows the issues in the dispute – NE often helps
parties to clarify or narrow the scope of their dispute
and increase the chances of future settlement.
b. Resolves disputes faster and avoids the destructive

effect and delay of on-going litigation in resolving a
dispute. Corporate resources can be freed up to focus
on the parties’ core business.
c. Maintains confidentiality of the Neutral’s opinion and
the information disclosed during the process is on a
without prejudice basis.
d. Suitability – generally, all types of civil disputes are
suitable so long as parties are committed to the prompt
resolution of the dispute. Specifically, however, the
most suitable types of disputes would be cases that turn
on documentary evidence (for example, construction
related matters) and/or conflicting expert evidence
where it might be too expensive and time consuming
for expert witnesses to testify at length, where parties
want a neutral person with expertise to assess the
merits of their case, and where both sides believe they
have a strong case and are unwilling to settle.
e. Expertise – if the matter requires specialised legal or
technical expertise, parties may opt to select a Neutral
with that necessary expertise to give an Evaluation as this
may be a better way of cutting to the point and informing
all parties what the probable outcome may be. This can
then form the basis for negotiation or mediation.
Cases that Benefit from NE

The following types of cases may benefit particularly from
NE:
a. cases that involve substantial documentary evidence
(for example, construction-related matters);
b. cases that involve conflicting expert evidence where

it might be costly and time-consuming for expert
witnesses to testify at length during trial (for example,
medical negligence cases);
c. cases where parties want a neutral person with expert
knowledge of the subject matter to assess the merits of
their case; and
d. cases where both sides believe that they have a strong
case and are therefore unwilling to explore settlement.
A neutral assessment of the strengths of the case may
be useful to break the deadlock.
Use of Experts in NE
Involving a neutral expert can help to clarify options and likely
outcomes, and thus reduce potential risks and costs. Neutral
expert fact-finding takes place when experts nominated by
parties in dispute cannot agree or need expert advice themselves.
Using a neutral expert, ideally appointed by both parties, can
clarify issues and help avoid escalation of a dispute. This process
is particularly useful in situations where analysis of data or
scientific criteria are important.
In this option, resolution of the dispute is left in the hands of the

parties. Other options, with a more active role for the expert or
expert organisation include:
a. Mini trials – a process in which party representatives
make submissions to a panel of senior executives (one
from each party) and an independent chairman (often
a lawyer or mediator). The parties then seek to reach a
settlement with the help of the chair of the panel.
b. Private trials – as the name suggests, this is a provisional

enactment of the evidence and arguments that is to
go to trial or arbitral hearing before an independent
lawyer acting as “judge”.
c. Ombudsman – the procedure used by large
organisations or government industry-wide regulatory
agencies for dealing with complaints from the public.
Usually, these include reports and compensation
awards (within strict limits). Examples in the UK
include mis-selling of financial products by banks and
insurance companies.
State Courts of Singapore’s NE

(1) Appropriate case
Appropriate cases in the State Courts can be referred to NE. In
general, a judge hearing a summons for direction or any pre-trial
conference of parties’ cases may recommend the case be referred
for NE. The case may also be recommended for NE by a judge
during court annexed mediation, if both parties agree to refer the
case for NE, the court will arrange for it.
With the introduction of a “Presumption of ADR” for civil

matters,1 ADR should be considered at the earliest possible stage,
thus encouraging litigants to consider ADR as their first choice
to resolve their disputes in court.
This effectively means that all civil matters that do not involve
medical negligence claims may be considered for NE, unless
parties fall under the exemptions of this automatic referral. Using
1 State Courts Practice Directions 26(2).

ADR at an early stage not only reduces the costs of litigation, but
it also minimises potential deterioration of business relationships
between opposing litigants, a highly undesired consequence in
any industry.
(2) Process of NE
NE sessions are convened under Order 34A of the Rules of
Court, and is provided by the Centre for Dispute Resolution
(“CDR”) of the State Court of Singapore for general civil and
commercial cases at no cost to parties as these fall with the
State Court’s CDR service2 (as with its Mediation service). The
CDR judge will usually give a brief NE of the matter to allow
litigants to understand their probability of success at trial and
undergo subsequent settlement negotiations on this basis. The
courts recommend litigants to consider ADR at the Summons
for Directions stage.
Within 21 days after a case has been referred for NE by the

courts, the CDR will schedule a Preliminary Conference
between a judge and the parties’ lawyers. At this conference, the
judge will discuss with the lawyers the following matters:
a. whether the parties intend for the evaluation to be
binding;
b. whether affidavits of evidence-in-chief would be
exchanged;
c. the factual and expert witnesses who will attend the
NE hearing;
d. the dates for the NE hearing; and
e. any other matters that will facilitate the quick and
economical conduct of the NE.
2 https://www.statecourts.gov.sg/Lawyer/Pages/Overview-of-Court-Dispute-Resolution.aspx
Once the NE hearing date has been fixed by the PDRC, the
lawyers must submit a concise written statement setting out their
claims and attach all key documentary evidence that the parties
intend to rely on at the hearing (this must be done no later than
two working days before the hearing).
Singapore Mediation Centre3

Any party to a dispute or negotiation may request for NE by
sending an application for NE in the prescribed form to the
Singapore Mediation Centre (“SMC”) with payment of the
administrative fee. Where there is an NE session, parties may
participate in person or by authorised representatives. The parties
may also be assisted by legal advisers, with the SMC assisting
with the appointment of the right Evaluator for the right case.
Where the parties prefer freedom of choice in appointing their
Evaluator, the SMC will advise parties and provide a choice of
the most appropriate Neutrals for the case, based on the nature
of the dispute.4
The evaluation session is informal and the rules of evidence do

not apply. The Neutral may conduct a site visit with the consent
of the parties and choose to investigate the matter further by
obtaining expert advice in technical matters.
Law Society Neutral Evaluation and Determination

Scheme5
The Law Society of Singapore (“LSS”) introduced a new
mechanism combining neutral evaluation and determination.
3 http://www.mediation.com.sg/business-services/neutral-evaluation/
4 http://www.mediation.com.sg/assets/downloads/neutral-evaluation/09-NE-Rules-version-2.pdf
5 https://www.lawsociety.org.sg/For-Public/Dispute-Resolution-Schemes/Neutral-Evaluation-
and-Determination-Scheme
Known as the Law Society Neutral Evaluation and Determination

Scheme (“LSNEDS”), the neutral evaluation leads to an
advisory evaluation, whereas determination is a temporarily
binding determination (similar to expert determination in the
next chapter).
LSNEDS can be incorporated into the contract between

parties, or where there is no contract governing the parties’
relationship, once a dispute has arisen. Alternatively, parties may
sign a separate agreement to use LSNEDS. In this mechanism,
the emphasis is on the speedy and determinative evaluation or
temporary finality of contractual disputes, which are conducted
the Neutral. As such, these processes will be stipulated to
take place within very limited timelines to ensure the fast and
effective disposal of disputes wherever possible.
Some of the advantages of this scheme are that parties are not
bound by the determination or evaluation forever, but instead still
preserve their rights and may have a “second bite at the cherry”.
Further, because the scheme is strictly limited to those parties
and their dispute in particular, disputants can be assured of the
privacy and confidentiality of the process. Finally, this scheme
can be used by itself, or together with the mediation and/or
arbitration frameworks already laid out by the LSS.
(1) General principles of LSNEDS

As NE is non-binding on parties, the issue of enforcement
generally does not arise. However, this would ultimately
depend on the contract governing the parties’ use of LSNEDS.
For example, non-participation in the NE can, for instance, be
made a breach of contract, if parties agree to it. Alternatively,

parties could agree that costs consequences would be borne by
a hostile, non-participating party. These are some of the ways
in which participation in early dispute settlement mechanisms
may be enforced.
Neutral Determinations that have an adjudicatory and

determinative aspect to them are enforceable as part of
the contract between parties. Determinations (that is,
determinations which require one party to pay the other party a
certain sum of money) are considered debts which are due and
are payable within 30 days. It and can be enforced in the same
way as any other proven debt.
Thus, a person who is owed money under the Determination

(“creditor”) may sue for breach of contract or on the debt if the
Determination is not complied with by the other party. At this
point, the party who is supposed to pay the money (“debtor”) may
challenge the validity of the Determination and/ or commence
a suit on the substantive dispute, though these proceedings may
not necessarily suspend the Determination. Any such suspension,
pending formal litigation, will be at the discretion of the court or
tribunal hearing the substantive matter.
(2) Process of LSNEDS

Under the LSNEDS procedure, a Notice of Intention for
Evaluation/Determination may be given at any time during
the period of the contract or agreement between parties. This
Notice of Intention must be in writing. It should also specify
the adjudication agreement on which it is based, and whether
an evaluation or determination is being requested. The Notice

must also include a brief description and the relief sought.
Parties are not precluded from filing a fresh Notice of Intention
should they fail to make an application after the 90-day window
period has elapsed.
Thereafter, 14 to 90 days after this Notice has been served, the

serving party may commence the Application. This Application
must also be in writing, and confined to the disputes raised in
the Notice of Intention. Personal particulars of parties such as
their names and contact details must also be provided, along
with all relevant facts and particulars of the dispute. The
applicant must also furnish as complete as possible the evidence
he intends to rely on, including copies of all documents, and
relevant calculations/diagrams.
Seven days after the Application has been submitted, a Neutral

may be appointed. Fourteen days after the Application has been
submitted, the other party is required to file their Response in
writing, regardless of whether the Neutral has been appointed or
not. In this Response, the party disputing the application must
either confirm or deny the facts and particulars raised in the
Application, and include any other facts and particulars deemed
relevant. Similarly, the respondent will also be required to furnish
copies of all documentary evidence it intends to rely on.
Fourteen days after the Response has been filed, the Evaluation/
Determination will be handed down. The Evaluation/
Determination will be in writing, providing reasons for why
the Neutral has determined the matter one way or the other.
The Evaluation/Determination will also state the amount to be

paid, should it be a monetary determination. In other situations,
the Neutral will also determine the contractual interpretation
if parties had put that into issue. Further orders may also be
included in the Evaluation/Determination, such as the furnishing
of security to return, or if there were disputes that had not been
determined, or costs orders.
Where no costs orders are made, parties are jointly liable to pay
the Neutral’s fees. Parties should also be mindful that the Neutral
can order security for his or her costs, and may refuse to deliver
the Determination until such costs have been paid. However,
any delay for non-payment by the required party resulting in the
delay of the Determination will not render that Determination
invalid. This is because the other party has an option of paying the
requisite fees first, and the Neutral can then include an adverse
cost order against the party in default of payment.
Parties should bear in mind that no appeal lies from an Evaluation

or a Determination. Technically, there is no requirement for
an appeal from an Evaluation as it is non-binding on the
parties. Where a party is not satisfied with a Determination,
however, his only recourse is to commence a suit to declare the
Determination invalid and/or to commence a suit based on the
substantive dispute.
5
EXPERT DETERMINATION

RESOLUTION FOR
MECHANISM
Expert • Appointed expert • Expert’s decision is • Disputes or
determines a final and binding matters of
Determination
technical issue (subject to limited valuation which
that is disputed challenge) are mainly
between parties • Stand-alone dependent on
• Helps avoid/reduce procedure, or technical issues
expert witnesses if supplement other • Cases where
matter goes to trial ADR mechanisms a trial judge
• Parties’ autonomy is likely to
in appointing have to rely on
expert expert witnesses
anyway
• Fast
• P&C
General Overview of Expert Determination

Expert Determination is between two parties with the
appointment of a third party expert to decide technical issues. The
Expert does this by providing a (usually) binding Determination.
In disputes which depend on an expert’s opinion, this could move
things along.
An expert may also render a decision that is not binding but

instead advisory, known as an expert evaluation. Although not
EXPERT DETERMINATION 67
binding, an evaluation can, and does often, form the basis of

a settlement.
As such, cases that would benefit best would be those where the
judge is most likely going to turn to an expert for information
regarding technical issues, especially in cases which involve
highly specialised subject matter expertise. Rather than waiting
till a trial to call expert witnesses, an Expert Determination
allows for a cheaper alternative, allowing parties direct
access to an expert, which results in a faster process as the
expert’s decision ought to be delivered within 14 days after
parties’ submissions.
Expert Determination is ideally suited to disputes and/or

matters of valuation and/or which are primarily dependent on
technical issues or specialised datasets. For example, whether a
computer matches the specifications it was supposed to have
been manufactured according to, whether a malfunction is due
to a design or a manufacturing fault, valuations of shares, rent
reviews and the extent of contract performance matters. It
can also be easily used in many other areas such as insurance
wording disputes, sale of goods disputes, fitness for purpose and
boundary disputes.
Benefits of Expert Determination

Expert Determination may be used either as a stand-alone
procedure, or to supplement other ADR methods such as
mediation, arbitration or even litigation. Apart from choosing
the experts with the desired qualifications, parties also have the
autonomy to choose other elements of this ADR process, such
as the language of the expert determination, the place of any

meeting and so on.1 In this regard, it is a highly versatile option.
Singapore Institute of Architects Expert Determination

Rules2
The Singapore Institute of Architects (“SIA”) launched its Expert
Determination Rules and its Facilitated Expert Determination
Procedures in March 2011 as a faster and inexpensive alternative
to complement the current ADR regime in Singapore. The process
is private and confidential, except to the extent that it is necessary
in order to implement to the decision or is required by law.
Under these rules, a technical expert will decide specific technical

disputes such as building defects or those involving technical
specifications and drawing issues, instead of resorting to
adjudication or arbitration, which are costly with sums between
S$20,000 to S$7million. For Expert Determination, decisions will
be delivered within 14 days with each party bearing its own costs
and sharing the cost of hiring an expert under the scheme. There
are also procedures for the appointment of experts, procedures
for the conduct of the Determination, the concept of “temporary
finality” and enforceability of such Determinations and costs.
Prior to the introduction of these new Rules, if disputes remained

unsolved beyond the decisions of contract administrators
(for example, Architects under the SIA Form), parties only
had the options of turning to arbitration, mediation, statutory
adjudication or litigation.
1 http://www.wipo.int/amc/en/expert-determination/what-is-exp.html
2 http://apex.sia.org.sg/xshare/ExpertDeterminationRules.pdf
General Principles
(1) Private and confidential
The parties, the expert and the appointing body will keep the
process private and confidential, unless necessary in order to
implement the determination or as is required by law.
(2) Terms or scope of reference

Upon providing the terms of reference to the expert, issues may
arise with regard to possible material departure from the scope of
instructions. To determine what constitutes a material departure
from instructions, two factors are considered in sequence.3
Firstly, one has to determine what the parties have agreed to
remit through the expert in the contract; and secondly, whether
the nature of the mistake constitutes a material departure from
his instructions.4
Generally, any departure from instructions is regarded as

material unless it can be characterised as trivial or so obvious
that it makes no possible difference to either party.5 If the two-
step test above has established that the mistake constitutes a
material departure from the instructions, the expert’s decision
will not be binding, even if the result of the departure is shown
to not be significantly different.6
Moreover, the Singapore High Court has distinguished between

mistakes made by the experts, and those that constitute a
departure from instructions.7 Parties cannot challenge an expert’s
3 Jones v Sherwood Computer Services plc [1992] 1 WLR 277 at 287.

4 Poh Cheng Chew v KP Koh & Partners Pte Ltd and another [2014] 2 SLR 573 at [38].
5 Ibid at [42].
6 Ibid.
7 Ibid at [43].
decision on the basis that he made a mistake, even if the expert

subsequently admitted to the mistake, so long as he had not
departed from his instructions and asked the right question in
his Determination.8 As such, it is crucial that parties demarcate
clearly the scope of the chosen expert’s determination in their
contracts to prevent future disputes.
(3) Reasonable skill and care

Supplementing this is the common law duty imposed on experts
to exercise their duties with reasonable skill and care to both
parties. Where the agreement between the parties and the expert
does not set out any terms as to liability for negligence, the expert
may be liable in damages should he be found to have carried out
his duties negligently.9 This functions as a safeguard for parties
when an expert is appointed.10 Finally, the decision of an expert
that is coloured by “fraud, corruption, collusion, dishonesty, bad
faith, bias or the like” is not binding.11
Process of Expert Determination

(1) Finding experts
Parties may seek the help of appointing bodies such as the
Chartered Institute of Arbitrators (CIArb) to make an
appointment.
Alternatively, parties have the freedom to agree on the identity

and appointment of the expert. If parties are unable to agree
on the same expert, they may submit a request to the President
8 Ibid.
9 The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385 at [207]–
[208].
10 Holland House Property Investments Limited v Crabbe [2008] CSIH 40.
11 The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385.
or Vice-President of the SIA to appoint an expert, providing a

brief summary of the nature of the dispute and the names of the
experts already nominated but not agreed by the parties.
(2) General procedure

Parties must agree on the exact wording of the question(s) to be
determined by the expert. Parties then provide such evidence as
they think necessary. The expert may ask for any further evidence
that he considers appropriate. He will decide whether or not to
deal with the matter on a “documents only” basis or if it is necessary
to hold a hearing and/or a technical examination. Sometimes, the
expert may choose to hold a preliminary procedural meeting to
deal with the questions posed by parties.
(3) Expert’s conduct and power

The expert does not necessarily have to conduct full enquiry
in accordance with the usual rules of procedure (such as the
rules of court in litigation, arbitration rules or general rules of
natural justice).12 In coming to a decision, an expert is allowed
to consider his personal expertise and to make his own inquiries
without being obliged to consult the parties that appointed him.
Furthermore, an expert can act subjectively without having to
rely on the evidence presented to him.13
The expert’s power and jurisdiction is derived solely from the

terms of the contract in dispute.14 Consequently, the validity of
his appointment is dependent on the contract itself. Generally,
there are three grounds in which parties may challenge an expert’s
12 The Oriental Insurance Co Ltd v Reliance National Asia Re Pte Ltd [2009] 2 SLR(R) 385.
13 Evergreat Construction Co Ptd Ltd v Presscrete Engineering Pte Ltd [2006] 1 SLR(R) 634.
14 Poh Cheng Chew v KP Koh & Partners Pte Ltd and another [2014] 2 SLR 573 at [30].
Determination: material departure from instructions; manifest

error; or fraud, collusion, partiality and the like.15
Other than the above situations, the court will not interfere with
the expert’s decision unless it is necessary for them to uphold the
parties’ contractual bargain.16 In fact, so long as the expert acts
within his contractual mandate, errors of fact or law that were
made will not vitiate an award.17
(4) Costs
Unless the parties agree otherwise, the fees, expenses and costs of
the Expert Determination will generally be borne by the parties
in equal shares.
(5) Challenging an expert’s determination

The case of Geowin Construction Pte Ltd (in liquidation) v
Management Corporation Strata Title No. 1256 [2007] 1 SLR
1004 (see next page) discusses when an expert’s report can be
challenged on certain specified grounds.
15 Ibid.
16 Ibid.
17 Evergreat Construction Co Pte Ltd v Presscrete Engineering Pte Ltd [2006] 1 SLR(R) 634 at [34].
Geowin Construction v MCST 1256 [2007] 1 SLR 1004

The plaintiff was the main contractor engaged by the defendant to carry out
additional and alteration works at a mansion property. The key dispute was that the
plaintiff asserted that it had completed the works while the defendant disagreed,
claiming that, on the contrary, various portions of the works were either incomplete
and/or defective.
The parties were unable to resolve their differences and the defendant subsequently
made a successful demand on a performance bond provided by the plaintiff as security
for its contractual obligations and the plaintiff in turn disputed the defendant’s right
to do so and maintained that it was the defendant that owed it money.
An expert was appointed pursuant to the terms of a settlement agreement between the
parties. The expert came to the conclusion that a positive balance was accrued to the
plaintiff and the defendant ought to return the amount paid by the plaintiff through
the call on the performance bond and an additional sum of S$146,462.22.
The defendant was dissatisfied with the expert’s decision and filed an application to set
aside the award, alleging that:
a. the expert had made assumptions of fact and did not properly make an “assessment”
as stipulated in the settlement agreement;
b. the expert made “manifest” errors and had accordingly failed to “assess” the
plaintiff’s work; and
c. the expert failed to use reasonable skill to discharge her responsibilities.
The court held, in summary, that:
a. in the absence of fraud or any corrupt colouring of the independent assessor’s
determination, there is neither liberty nor latitude to interfere with or rewrite the
parties’ solemn and considered contractual bargain;
b. it is inappropriate for a court to substitute its own view on the merits when the
parties have already agreed to rely on the expertise of an expert for a final and
irrevocable determination;
c. the law upholds and recognises agreements and the consequential awards such
as the one in the present case because of the sanctity it accords to contractual
arrangements;
d. an expert’s decision can be set aside on basis of fraud or partiality, or where there
is a breach of an expert’s terms of appointment; and
e. errors of fact or law will not vitiate an award if the expert acts within his contractual
mandate.

(1) Due process does not apply to expert determination
Generally, there are two fundamental aspects of natural justice
underlying any dispute resolution mechanisms. First, the
decision maker should be disinterested in the outcome. Second,
due process (that parties have the right to be heard on all issues
that are to be determined). However, the court have decided
that the second facet of natural justice does not apply to an
expert’s determination.
The court also added that there was nothing wrong or contrary
to public policy in allowing an expert to resolve all disputes in a
matter, regardless of whether such issues are legal or factual – an
expert’s role need not be confined to giving opinions on matters
that are not in dispute.
(2) Expert not obliged to give a “reasoned” award

Commenting on the role of the court in “reviewing” an expert’s
determination, the court held that if the parties in appointing
an expert fail to stipulate or mandate in terms of reference for a
“speaking” or “reasoned” award, the court itself cannot and should
not insist on this. To require reasons to be given apropos such an
award would be tantamount to rewriting the bargain and akin to
imposing a new obligation on an expert who has undertaken the
appointment on the basis that the invariable practice is not to
give reasons unless the terms of reference require it.
(3) Review of an expert’s decision by another body

The notion and objective of providing reasons is inextricably
linked to the notion and possibility of review by another body and
one must bear in mind that when an expert’s award is made, there
is no legal review process prescribed by law. Parties who appoint
an expert must acknowledge and accept the risk that though an
expert might and can err, they consciously and sanguinely accept
that risk in lieu of the expense, uncertainty and perhaps delay that
court and/or arbitration proceedings may occasion.
(4) Judicial Intervention – “manifest error”

The court held that “manifest error” was no more than a convenient
shorthand reference to a patent obvious error on the “face” of the
award or decision. The term should not represent any inclination
or desire by the courts in Singapore to intervene with greater
alacrity to correct decisions made by an expert.
(5) Judicial Intervention – if parties agree that an expert’s

decision is “final”
In such a situation, since the parties agreed that an expert’s
decision would be final, the court should not inquire in the
absence of a charge of fraud or collusion as to how a decision
has been reached; into the basis for the decision; or whether
the decision was indeed correct, as this would be entirely
contrary to the parties’ contractual intentions to be bound by an
expert’s decision.
(6) Right of review limited to correcting apparent mistakes

or determining compliance with terms of appointment
Ultimately, it was reiterated that the right of review should be
confined to correcting apparent mistakes that appear on the
face of the report or award (for example, apparent mathematical
miscalculations) and to determining whether the expert has
complied with his terms of appointment. If an expert answers the

right question in the wrong way, his decision will still be binding.
The underlying evidence ought not to be re-examined or referred
to as this would be tantamount to an appellate hearing and to
that extent contrary to what the parties had agreed to.
6
DISPUTE BOARDS

RESOLUTION FOR
MECHANISM
Dispute • Board of specialists • Proactive, rather • For long-term
created usually at the than reactive projects, which
Boards
start of a project • Dedicated are complex in
• Advising and making first responder nature
recommendations body for the • Projects with
to parties to avoid/ resolution of higher risk of
minimise disputes disputes disputes arising
• Adjudicating on • Party autonomy
disputes referred to it in selecting
members of the
board
• Tailored for the
project’s needs
General Overview of Dispute Boards1

Dispute Boards (“DBs”) in large-scale projects involve a board of
independent persons who are appointed to review the progress of
the project and consider issues that may have arisen, with the aim
of avoiding disputes or minimising their impact by pre-empting
disputes before they arise, and when they do arise, to deal with
them quickly and effectively.
1 http://www.disputeboardsmena.com/the-differences-between-dispute-resolution-and-dispute-
adjudication-boards/; http://fidic.org/sites/default/files/4%20charrett09_BDPS_news4.pdf
DBs have been used actively since 1975 on heavy engineering

projects such as tunnels, airports, toll roads and power plants.
There are a variety of types of dispute boards, as described below.
The brief history of DBs is as follows (in chronological order):

a. the DB was first used as a dispute resolution mechanism
in the Eisenhower Tunnel project in 1975 in the USA
in the form of a Dispute Review Board (“DRB”);
b. the first DB outside of the USA was utilised for the
World Bank hydro-electricity power station project in
Honduras (1981);
c. DBs were mandated for all World Bank projects in
excess of US$50million since 1995;
d. DBs were included in the FIDIC (the International
Federation of Consulting Engineers) Standard Form
Contracts since 1999;
e. the International Chamber of Commerce (“ICC”) also
came up with their own DB Rules in 2004; and
f. nine multilateral banks adopted DBs in 2006.
Large multi-discipline/contract projects sometimes require a

larger pool of panels from which a panel of one or three or more
members can be selected.
DISPUTE BOARDS 79
Examples of large projects

a. Portions of a $ 1.5 billion 18.9-kilometre Gateway Expressway Upgrade, including
the Brisbane bridge, in Australia.
b. The under-sea Channel Tunnel (linking the UK with France) project had a DRB
of five persons, with the decision made by a three-man panel comprising the
chairman and two of the other members (chosen for their particular expertise).
c. The Channel Tunnel project also had two other separate panels, a technical panel
comprising of engineers (who gave decisions on construction-related disputes)
and a finance panel (who gave decisions on disputes concerning the financial
provisions of the concession agreement).
d. The Hong Kong Airport’s disputes review group consisted of six members and
an additional convener to cover all the main contracts (about 20) awarded by
the Hong Kong Airport Authority, including a panel of one or three members
selected depending on the nature or complexity of the dispute and the range of
expertise likely to be required.
To this end, DBs have become a popular means of dispute

avoidance and dispute resolution mechanism in many
parts of the world. They are particularly effective during
the design, procurement and construction stages of major
infrastructure projects.
Types of Dispute Boards

Generally, there are two main set-ups for DBs, that is, whether
they are “standing” or “ad hoc”. Standing DB has the board
appointed at the outset of the project. This form of DB then
conducts regular site visits and provides regular notification of
developments. The board is held on a monthly retainer and charges
daily attendance fees for site visits and when required to deal with
conflicts/disputes.
If a DB is an ad hoc one, it is appointed only when a dispute arises

and serves to deal with the specific dispute. The fee charged to deal
with the dispute is likely to be a daily attendance fee or lump sum.
Operationally, either of these fulfil their function in two separate

ways, Boards which:
a. advise or make recommendations to the parties; or
b. decide or adjudicate on a dispute.
A Dispute Resolution/Recommendation Board does the former

and a Dispute Adjudication Board the latter.
DBs’ duties may include conducting regular site visits; providing

a regular and continuing forum for discussion and keeping a
proactive correspondence alive; and assisting in predicting and/
or resolving disputes.
There are useful and versatile tools to help avoid disputes.

DBs use these tools to manage disputes which occur to reduce
the risk of escalation and to keep works moving until a final
agreement or decision can be reached.
Alternative (and amicable) dispute resolution mechanisms can be

employed in DB processes which, if developed carefully, could give
DBs an edge over other forms of dispute resolution mechanisms.
(1) Dispute Avoidance Board

As the name suggests, a Dispute Avoidance Board (“DAB”) is
set up to help avoid disputes. Parties are free to agree to approach
a DAB and jointly refer a matter to it, in writing, with a request
to provide assistance and/or informally discuss and attempt to
resolve any disagreement that may have arisen between the parties
during the performance of the contract. Such informal assistance
may take place during any meeting, site visit or otherwise.
DISPUTE BOARDS 81
(2) Dispute Review Boards

Dispute Review Boards (“DRBs”) (with commonly
interchangeable generic terms such as Dispute Settlement
Panel, Dispute Avoidance Panel and Dispute Conciliation
Panel) is a type of DB where a group of advisers provide
non-binding recommendations encouraging parties to resolve
disputes before these go on to become claims. DRB panels
act as “real time” dispute resolvers by performing regular site
visits, attending meetings and providing regular update reports
on the progress of the construction projects. The DRB panel
generally consists of experts in the field, for example, the
construction industry.
The DRB issues Recommendations for any dispute referred to

it and may be characterised as a relatively consensual approach
to dispute resolution. If no party expresses dissatisfaction with
a Recommendation within a stated time period, the parties
contractually agree to comply with the Recommendation. If a
party does express dissatisfaction with the Recommendation
within the time period, that party may refer the dispute to the next
level of resolution, for instance, either arbitration or litigation, in
accordance with their contractual provision.
Pending an award or ruling by the arbitral tribunal or a court,

the parties may voluntarily comply with the Recommendation
but are not bound to do so. The DRB has no right to enforce for
non-compliance.
In this manner, a DRB is proactive in primarily monitoring

projects and providing the parties with an avenue for discussion
with the assistance of third parties, whilst addressing problems

head-on throughout the process before they escalate into actual
disputes. This process of project administration and management
serves to promptly resolve or even avoid disputes.
The DRB usually supplements other dispute resolution

mechanisms, while providing an independent assessment of
the disputes and encouraging parties to view disputes more
objectively with their involvement from the start. DRBs are
generally a creation of contract and parties have the autonomy
to decide how it should be conducted and whom should be on
the panel. At the end of the day, parties have the choice as to
whether they will adopt the board’s Recommendation or not.
Unless both parties agree to accept and implement the DRB’s
Recommendation, it will not have any contractual force.
How a DRB functions

The DRB members (well versed in contract administration
and interpretation of contractual provisions) are chosen with
care, taking into account the expertise of the members, as those
with little or no understanding of technical matters may fail
to appreciate the extent of the dispute. While the DRB panels
usually consist of three members, small projects that may not
have extensive budgets usually appoint a DRB comprising only
one or two people (though with an even number, complications
could arise in terms of making decisions and breaking deadlocks).
It is important for parties to carefully consider the DRB panel’s

scope of work when drafting the DRB specification.2 DRBs
2 https://www.slideshare.net/secret/qa9CPy4gJAFgjW
DISPUTE BOARDS 83
work when the parties have confidence, and the trust in, the
panel members. This is achieved when the parties and panel
members have a common understanding of what is expected of
the panel members.3 Parties should also be willing and ready to
commit to participate in the regular meetings.4
Nonetheless, the DRB dispute resolution process is very

flexible and can be tailored to suit many different disputes and
technical situations. Regardless, the fundamental requirements of
impartiality and non-biasness of the DRB members can never
be compromised. It is imperative that parties remain open and
frank with the DRB members so as to properly avail themselves
of the knowledge and experience of the DRB.5 It has been
recommended that specifications should provide that regular
meetings be made confidential so as to facilitate the effective
operations of the DRB.6
DRB Recommendations
The advice rendered by the DRB are termed (non-binding)
Recommendations (often found in Standard Form contracts
used in the US) or Hybrid Recommendations (such as with the
ICC 2004 dispute board procedure).
If Recommendations were binding, the very principle on which

DBs function would be altered. Instead of a discussion among
still-amicable contracting parties who still retain control over the
ultimate outcome of the problems or disputes, it would evolve
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
to become a necessarily win-lose contentious proceeding with

lawyers coaching and working with the parties in dispute. Also,
non-binding Recommendations help to ensure that the DRB
process does not become weighed down by too many procedures
trying to ensure due process.7 This helps to significantly save
parties’ costs and time.
If there is a requirement to issue binding decisions, there will

be a legal assault on the DRB procedures to ensure due process.
As such, DRB might follow the path of arbitration and become
dominated by the legal profession. This will make the entire
process lengthy and costly.8 In fact, it is the non-binding nature of
DRB Recommendations that makes North America so receptive
of this ADR process.9
That being the case, parties are still free to stipulate in their
contracts that any Recommendations from an appointed DRB
will be binding but are advised to do so only under special
circumstances. They should also provide an appeal process in court
against the binding Recommendation. These Recommendations
will thus become “binding in the interim” and parties must
comply with them unless a court of law overturns them.10
(3) Dispute Adjudication Board

A Dispute Adjudication Board (“DAdjB”) issues decisions with
respect to any dispute referred to it and is a less consensual
approach to dispute resolution. A DAdjB decision provides
7 Ibid.
8 Ibid.
9 http://www.drb.org/manual/2.11final12-06.pdf
10 Ibid.
DISPUTE BOARDS 85
temporary finality and is intended to be enforceable (though in

practice enforcement has not shown to be without difficulty in
some jurisdictions). By contractual agreement, the parties must
comply with a decision without delay as soon as they receive it.
If a party expresses dissatisfaction with a decision within a stated

time period, they may refer the dispute to arbitration (if the
parties have so agreed) or to the courts. In the interim period,
parties remain contractually bound to comply with the decision,
unless and until the arbitral tribunal or a court rules otherwise. If
no party expresses dissatisfaction with a decision within the stated
time period, the parties contractually agree to remain bound by it.
The DAdjB has been widely adopted by the English-speaking

construction community outside the US, mainly due to the
International Federation of Consulting Engineers (“FIDIC”)11
adopting it into the dispute resolution provisions of their standard
form contract for international construction projects.
DAdjBs are formed by the parties: with usually one nominee

from each party, and a chairman agreed on by the two nominees.
Members must be independent and impartial with no financial
interest in the project. The board convenes for regular on-site
inspections at which the board will make recommendations and
offer opinions a to whether or not a decision has been requested.
The perceived problems with DAdjBs include the difficulty

in obtaining enforcement if the decision is not complied with
11 http://fidic.org/about-fidic
in some jurisdictions (see the Persero 1 and 2 decisions in the

Singapore Court of Appeal 2011 and 2015 below). Another
problem is the not insubstantial cost in maintaining a board for
a number of years. The DAdjB is probably only an economically
viable procedure in the very largest of infrastructure projects.
Whatever the problem, the DAdjB is likely to remain only as
long as international funders such as the World Bank and the
European Bank for Reconstruction and Development insist
upon their use in construction projects.
Benefits of the Dispute Board Mechanism

Selection of DB – the parties are the ones who select the
DB themselves based on the parties’ confidence in the DBs’
experience, expertise and skills, and the DBs’ abilities to
provide an independent, impartial assessment of the parties’
disputes. The DB can address a dispute as soon as it has been
referred for determination. This avoids long delays during
which time-sensitive projects may be delayed and working
relationships deteriorate.
Tailored to parties’ requirements – the procedures adopted by

the DBs can be entirely tailored by parties to suit their needs
(subject to the overarching considerations of determining a
dispute in a limited and defined period of time). This will limit
the amount of preparation and material to be considered by
the DBs. A hearing, which is normally an integral part of the
procedure, provides a forum for the parties to air their grievances
in front of a respected panel of professionals.
DISPUTE BOARDS 87
Speedy and cost-efficient resolution – the limited time and costs

expended to obtain resolution of a dispute has obvious commercial
advantages for parties. This is in comparison to the lengthy time
and high costs of other forms of dispute resolution mechanisms
such as arbitration or litigation, which may place added pressure
on the parties’ businesses.
Project management tool – “third party supervision” – parties are

more likely to be careful when performing their obligations in
light of the existence of the DBs.
Pro-active – a DB is pro-active in resolving disputes as compared

to the other dispute resolution mechanisms which are reactive in
nature such as litigation and/or arbitration. This means that it is
possible for disputes to be resolved before they escalate into full-
blown trials and/or hearings which would cost more and waste
more of the parties’ time.
7
ADJUDICATION

RESOLUTION FOR
MECHANISM
Adjudication • Quick, interim relief • Fast • Projects which
for managing disputes • Preservation require very strict
as and when they arise of parties’ timelines to be
• Adjudicator provides rights through adhered to, eg
a provisionally possibility of construction
binding determination litigation or industry
of parties’ contractual arbitration • Projects which
rights require quick and
• Very strict timeframes effective interim
to ensure swift relief relief when a
dispute arises
General Overview of Adjudication

Adjudication involves two parties and an independent adjudicator
who resolves a dispute by providing a determination/decision
(as opposed to a settlement agreement in mediation, or award in
arbitration or judgment in litigation). As adjudication does not
alter or finally determine the parties’ contractual rights, it is a
provisional impartial assessment of the parties’ submissions and
other evidence. Parties who disagree with the determinations may
eventually take the matter to arbitration and/or litigation to finally
dispose of the claim(s).
ADJUDICATION 89
While adjudication can apply to all types of disputes, it is often

used for disputes arising under contracts in the building and
construction industry. The key difference between adjudication
and all other forms of dispute resolution mechanisms is that it
is carried out within a strictly limited timeframe from 14 days
upwards (depending on what the governing statute provides).
The time taken to obtain a final and binding resolution of
disputes may potentially cripple the disputing parties in such a
context. The speed and cost-effectiveness of adjudication makes
it an attractive dispute resolution mechanism for stakeholders
in the construction industry as this is an industry in which cash
flow is vital.
Construction adjudication is often referred to as a “quick and

dirty” way to resolve a dispute. However, it appears to be having
the desired effect: since the advent of this “obligatory contractual
provision”, the number of arbitrations and court cases involving
construction in England, as well as in other jurisdictions, has
plummeted. Most parties appear to accept the adjudicator’s
decision and get on with business, rather than take the time and
trouble to attempt to overturn it in a court action or arbitration.
Types of Adjudication
There are primarily two types of adjudication, statutory or
contractual. A statutory adjudication is provided for by statute
while a contractual adjudication is provided for in agreements.
(1) Contractual Adjudication

Contractual adjudication is where parties agree in the contract
for an independent adjudicator to resolve a dispute by
providing a provisionally binding determination of the parties’

contractual rights, following an impartial assessment of the
parties’ submissions and other evidence. While the procedure in
contractual adjudication may not differ greatly from statutory
adjudication, as a creature of contract, parties can agree on the
scope of disputes to be resolved and the procedural rules that
apply to the dispute.
The entire process may bear close resemblance to that of

expert determination and/or that of accelerated arbitration
proceedings, just that adjudication is carried out within an
strictly agreed upon time period. Some reasons why parties may
choose contractual adjudication (where statutory adjudication
does not apply) are:
a. the short timeframe and limited costs necessary to
obtain an independent neutral third party’s evaluation
of the parties’ contractual rights;
b. parties have control over the entire process, including
the selection of the adjudicator;
c. the resolution of the dispute is provisionally binding
and even if ultimately disputed, it enables the parties
to deal with the issues in a timely fashion with respect
to the evidence; and
d. the final resolution of any disputed adjudication may
be deferred until the end of the project and this allows
parties to focus on the completion of the project rather
than being distracted by the preparations necessary for
dispute resolution.
ADJUDICATION 91
However, there are downsides to contractual adjudication and

these downsides mainly stem from the limited time and scope of
the entire process. This limited time period may not be sufficient
for the canvassing of complex legal and factual disputes which
involve the reviewing of large volumes of evidence.
One generally used adjudication clause is provided by the

Chartered Institute of Arbitrators (“CIArb”), which reads
as follows:
CIArb construction adjudication clause

A party to this contract (“the Referring Party”) may at any time give notice (“the
Notice”) in writing to the other party if its intention to refer a dispute arising under
the contract to adjudication.
The parties may agree [on] the identity of the adjudicator.
Where an adjudicator is not agreed within 2 days of the Notice being given the
Referring Party shall immediately apply to the Chartered Institute of Arbitrators for
the nomination of an adjudication, which nomination shall be communicated to the
parties within 5 days of receipt of the application.
Within 7 days of the Notice the Referring Party shall refer the dispute to the
adjudicator.
The adjudicator shall reach a decision within 28 days of referral or such longer period
as is agreed by the parties after the dispute has been referred.
The adjudicator may extend the period of 28 days by up to 14 days, with the consent
of the party by whom the dispute was referred.
The adjudicator shall act impartially.
The adjudicator may take the initiative in ascertaining the facts and the law. The
decision of the adjudicator is binding until the dispute is finally determined by legal
proceedings, by arbitration (if the contract provides for arbitration or the parties
otherwise agree to arbitration) or by agreement.
The adjudicator is not liable for anything done or omitted in the discharge or purported
discharge of his functions as adjudicator unless the act or omission is in bad faith and
any employee or agent of the adjudicator is similarly protected from liability.
(2) Statutory Adjudication

Statutory adjudication is the adjudication of a dispute in
accordance with formal requirements of a statute. In Singapore,
the Building and Construction Industry Security of Payment
Act (“SOP Act”) with its regulations apply to contracts in the
building and construction industry that are made in writing on
or after 1 April 2005.
The SOP Act is modelled in substance and structure after

Australia’s New South Wales Building and Construction Industry
Security of Payment Act 1999 (“NSW Act”) and prescribes a
structure of processes relating to payment claims and payment
responses which basically seek to entrench the right of a party to
a progress payment.
The SOP Act covers payments arising from “construction work”

and covers any work done on buildings or structures which
would form part of the land, any long-term installations within
those buildings or structures such as air conditioning or lighting
and any operation which are closely-linked to work in either
of the two categories. Both the provision of goods (such as
building materials) and services (such as architectural services)
are covered by the SOP Act.
Benefits of Adjudication
In adjudication, the independent third party adjudicator gives
an interim decision on a dispute, which must be implemented.
The adjudicator must reach their decision within a fixed time
frame and in accordance with agreed procedures. If either
party is not satisfied with the decision, then the dispute
ADJUDICATION 93
can be referred to a further procedure, such as arbitration

or litigation.
In addition to the typical benefits of ADR processes (privacy,

party choices, flexibility of process and cost-efficiency), speed is
a key benefit of adjudication. An adjudicator will provide a fast
decision (typically 28 days) so that the parties can get on with
their contract or project.
In some jurisdictions, there is a statutory provision for

adjudication, even if the contract does not provide for it. This is
especially common in the construction industry, and highlights the
value of a process that is able to deal with complex issues quickly.
In its most basic form, adjudication is intended to provide a

speedy, efficient and cheap resolution to disputes concerning a
variety of claims, on an interim basis. In its most complex form,
it can involve the resolution of all disputes between parties to a
contract on a final and binding basis.
Fundamental Principles of Adjudication

(1) Role of the Adjudicator
The adjudicator acts in an intermediate capacity on the spectrum
between an expert and an arbitrator. The adjudicator’s role is
focused on deciding disputes between the parties, within the
terms of their contract.
An adjudicator’s decision, although temporary or interim in

nature, is binding on the parties until the dispute is finally
determined by legal proceedings, arbitration or agreement.
However, it has the potential to become final and binding if

the parties decide not to refer the dispute to arbitration or
the courts.
(2) Construction Adjudication

Alternatives to litigation have often evolved in the construction
arena because of the mix of so many variables: people and
relationships, conflicting interests, weather, complexity of
design and engineering processes, and the importance of
time and costs. Adjudication is particularly suited to the size,
number and complexity of disputes in the construction and
engineering sectors.
Although not unique to the construction sector, this is where

adjudication has to date found its particular niche. The main
feature of construction adjudication is that it results in a
decision in respect of a dispute arising under a construction
contract that is temporarily binding on the parties and usually
enforceable by the courts. It is said to be temporarily binding
because the parties still preserve their right to bring the
dispute back to the courts or before an arbitrator (depending
on the provision for dispute resolution in the contract), if one
of the parties cannot accept the decision of the adjudicator on
a permanent basis.
(3) Timelines/Procedure under the SOP Act

The SOP Act strictly sets out a series of timelines relating to
when a payment claim and its corresponding payment response
are to be submitted. Under the “dispute settlement period”, a
ADJUDICATION 95
7-day period is provided to afford parties the chance to reach

a settlement before they proceed with adjudication. Only after
which a party is able to make its adjudication application.
However, as much as the SOP Act stipulates such timelines,

certain construction contracts are not in and of themselves
clear as to when a payment claim and/or payment response
is to be submitted. This has led to a series of cases relating to
premature applications.
Objective of Statutory Adjudication Provisions

Adjudication existed in one form or another for decades in many
construction contracts.
The English Parliament in 1996 passed a law requiring all

construction contracts in England to have an agreement to
adjudicate. It covers construction disputes in England, except
specifically as stated otherwise, to allow for a quick and cheap
interim decision on a claim (generally for payment) during the
course of a project, thus allowing the parties a later opportunity
to argue about the wider bases of the claims in another forum
such as arbitration or litigation.
In Australia, the New South Wales (“NSW”) Parliament

followed hot on the heels of the English legislation in dealing
with the adjudication of claims made under defined construction
contracts in 1999. Since then, all the other Australian states have
followed suit with similar legislation, which is itself under review
and amendment.
The English and NSW legislation prompted change further

afield with New Zealand enacting similar legislation in
2002 and Singapore also enacting legislation based on the
NSW model. Similar legislation is followed in Malaysia
and in Ireland. Legislation is now being implemented, or
is under active consideration, in Hong Kong, South Africa
and Mauritius.
The object of each of these Acts is consistently to give the claimant

a statutory right to make, at the very least, progress payment
claims, and to receive payment even where there is no provision
for adjudication in the contract. The statutes have a number of
common features:
a. contracting out of the relevant legislation is prohibited;
b. they make “pay when paid” clauses in construction
contracts ineffective;
c. they include a clear regime for the adjudication of
claims (payment claims or otherwise);
d. they preserve all other rights the parties may have
under the contract or the general law; and
e. other contractual mechanisms, including dispute
resolution processes open to the parties, may run in
parallel with the adjudication process or at any time
before or after.
To comply with the legislation, an adjudication agreement must

provide for a number of requirements, including the right to
refer a dispute to adjudication; strict time limits within which
the parties must submit claims, responses and submissions; that
the adjudicator must reach a decision; and an agreement that
ADJUDICATION 97
the adjudicator’s decision shall be binding, until it is varied by

court proceedings, arbitration, or agreement.
The time frames stipulated in each piece of legislation for

complying with stages of the process are very tight and cannot be
extended without party consent.
Amendments to the SOP ACT

(1) Updates to the SOP Act
On 2 October 2018, the Building and Construction Industry
Security of Payment (Amendment) Bill 2018 was passed in
Parliament that made significant alterations and amendments
to the SOP Act.1 Since its introduction in 2005, the provisions
of the SOP Act have quadrupled the use of adjudication as a
mechanism for resolving payment disputes and facilitated
payments to contractors of over S$940million.2 These changes
also come on the back of, and in support of, the Construction
Industry Transformation Map (“ITM”) launched in October
2018, laying out the strategies which could assist the construction
industry to move up the value chain.
The goals of the amendments are numerous, of which the three

key amendments are expanding and clarifying the Act; improving
the process of adjudication; and altering the requirements for
handling of payment claims and responses.
(2) Expanding and clarifying the Act

Of the numerous changes, among them is the fact that the SOP
Act has been expanded to include more types of contracts, most
1 https://www.bca.gov.sg/SecurityPayment/review.html
2 Singapore Parliamentary Debates, Official Report Vol 94, sitting no 84; 2 October 2018 (Zaqy
Mohamad, Minister of State for National Development).
notably those relating to prefabrication works, with the condition

that both contracting parties are registered in Singapore.
Moreover, it clarifies that claims for work done or goods supplied

before the termination of a contract are valid, unless the parties
involved have agreed to terms beforehand that state to the
contrary. It is also deemed that when a claim is served before the
due date, it is still considered to be served.
It also mentions that adjudicators are to consider claims on

damages, losses and expenses only when said claims can be
supported by relevant documentation.
(3) Improving the process of adjudication

When it comes to applying for an adjudication review,
respondents are no longer the only ones allowed to apply. As of
the amendments, claimants themselves are now able to apply for
an adjudication review.
The new amendments also provide for the appointment of a

replacement adjudicator, a replacement review adjudicator or a
replacement member of a panel of review adjudicators, and the
effect of such an appointment on an adjudication application or
an adjudication review application.
Significantly, adjudicators are now allowed to disregard

specific circumstances where claimants have failed to provide
certain documentation or information with regards to the
adjudication applications, so long as the respondents were not
materially prejudiced.
ADJUDICATION 99
It also clarifies that any delayed objections by respondents

will be disregarded, be it by adjudicators or the courts, though
respondents can defend themselves by proving their objections
could not have been made known earlier.
However, with regards to objections, it is now provided that a

respondent cannot include in the adjudication response any
objection that was not initially included in the relevant payment
response or raised to the claimant, specifically in writing, on
or before the relevant due date. Nonetheless, certain specified
circumstances can form exceptions.
In a similar fashion, the minimum interest for late payments

has been revised. A minimum rate for late payment has been
introduced as a replacement for relying on the interest rate set
by the parties in a contract, which can be staggeringly low due
to the lack of a set minimum. This is to encourage respondents
to pay claimants on time rather than delaying payment for a
small payment.
With respect to the grounds on which parties can commence

proceedings to set aside the determination of adjudication, a
non-exhaustive list has also been specified. These grounds
are consistent with those that have been used by the courts
so far.
(4) Altering the requirements for handling of payment

claims and responses
The time limit for the service of payment claims has been revised,
with a shorter time limit being prescribed and which clarifies that
a payment claim remains valid even if it is served before the date

or period specified in the contract.
Unpaid payment claims are also allowed to be repeated under

the Act, even without additional work being done or goods
being supplied. However, this is as long as it is done within the
limitation period and the claim has not been adjudicated on.
All in all, the intent behind the introduction of the SOP Act
remains unchanged, that is, to preserve the rights to payment
for construction companies. This intention has also guided the
recent amendments and is the overarching principle that the
amendments aim to give even better effect to.
8
ARBITRATION

RESOLUTION FOR
MECHANISM
Arbitration • Impartial tribunal • Confidentiality • Cases in which
decides on the • Arbitral awards are the dispute
dispute between binding on parties is complex,
parties involving issues
• Awards can also
• Most similar to of fact and
be enforced in
litigation, but law, but where
other jurisdictions
without the public parties’ priority is
(subject to certain
character of the confidentiality
conditions)
court process • Cases in which
• Parties can choose
enforcement
the arbitral
in multiple
tribunal and seat
jurisdictions is
of arbitration
required
General Overview of Arbitration

Arbitration involves parties who refer their dispute to an
impartial tribunal (consisting of one or more arbitrators). This
tribunal does not have the mandate of formal courts, however, the
proceedings will be governed by the procedural and substantive
laws governing the dispute between parties. The parties agree to
be bound by the tribunal’s decision, which is more commonly
known as an “award”.
Types of Arbitration
(1) Ad hoc Arbitration1
There are two ways in which arbitrations can be conducted: ad hoc
or through an institution.
An ad hoc arbitration is where parties agree on a form of

arbitration without referring to any arbitral institution. The
parties may choose to devise their own arbitral process or to
incorporate existing rules of procedure. The main features of
an ad hoc arbitration include independent proceedings giving
parties maximum flexibility; the tribunal chosen by the parties
(although if agreement cannot be reached the matter may be
referred to an appointing authority); and the fact that there is
no review of the award by an arbitral institution.
(2) Institutional Arbitration

These arbitrations are conducted in accordance with rules and
procedures of an arbitration institution. In Singapore, one such
arbitration institution is the Singapore International Arbitration
Centre (“SIAC”). The SIAC has its own rules to which arbitrations
under the SIAC will be governed by.
Arbitration is an ADR option with features most similar to

court litigation in terms of its ability to deal thoroughly with
complex issues leading to an enforceable decision in different
legal jurisdictions.
1 http://www.mondaq.com/x/236404/Arbitration+Dispute+Resolution/
Ad+Hoc+v+International+Arbitration
ARBITRATION 103
Arbitration Differing from other ADR

(1) Arbitration differs from Expert Determination.
With Expert Determination, there are no2
… procedural and evidential intricacies or niceties, it is

most unlikely that the court will view the proceedings
to be arbitration proceedings. An expert is permitted
to inject into the process his personal expertise and to
make his own inquiries without any obligation to seek
the parties’ views or consult them. An expert is also not
obliged to make a decision on the basis of the evidence
presented to him. He can act on his subjective opinion;
that is the acid test.
(2) Arbitration differs from mediation

In an arbitration, a neutral tribunal arbitrates and seeks to apply
the law to the parties’ dispute. In a mediation, the mediator
does not give a binding decision on the parties’ dispute and
the parties are the ones who have the autonomy to enter into
settlement agreements.
(3) Mediation-Arbitration (“Med-Arb”)

Med-Arb is generally a form of dispute resolution process which
combines mediation and arbitration. There is no agreed procedure
for Med-Arb, and how proceedings are conducted are largely
dependent on the parties’ intention as stated in their respective
dispute resolution clauses.
There are two forms of Med-Arb which are commonly used:

a. the first form utilises the third party as both the
mediator and the arbitrator and allows the mediator
2 Geowin Construction Pte Ltd (in liquidation) v Management Corporation Strata Title No 1256
[2007] 1 SLR 1004 at [35].
to adjourn the mediation to conduct an arbitration

session allowing for any additional discovery that may
not have been presented during the mediation session
or any other information that the parties would like to
present before an arbitrator; and
b. the second form is a full mediation session followed by
a full arbitration session (only if the mediation session
is unsuccessful in resolving all the disputed issues).
A mediator is pre-selected by the parties and the
arbitrator is a different individual who is later selected
by parties (if necessary).
(4) Arbitration-Mediation (“Arb-Med”)

Arb-Med works similarly to Med-Arb but in reverse. The
parties commence an arbitration and move into mediation mode
for some of the issues which may be capable of settlement by
negotiated settlement. The mediation may be conducted by the
arbitrator but only sitting in plenary session, that is, not in private
caucus with the parties separately.
(5) Arbitration-Mediation-Arbitration and the AMA

Protocol
The above two methods can be further developed into Arb-
Med-Arb whereby the parties revert to arbitration if there
are still outstanding issues between them after the mediation
process. Arb-med-arb is a hybrid process that gives the parties the
opportunity to use mediation to reach a settlement; if the mediation
does not produce a successful outcome, the mediator converts into
the role of an arbitrator and makes a binding determination. This
process encourages parties to create their own best settlement in
ARBITRATION 105
the knowledge that an arbitrator will, otherwise, impose a decision

– they have both autonomy and finality from the process.
The difficulty is that in a confidential mediation proceeding, the

parties may make admissions or compromises which they would
not have made before an arbitrator; and the mediator-arbitrator
may have discussed some matters during the mediation phase
with one party separately; which may mean the other party
has not been heard on an issue in the dispute, and accordingly,
procedural fairness may not have been fully observed.
The Arbitration-Mediation-Arbitration (“AMA”) Protocol is the

the collaboration between the Singapore International Mediation
Centre (“SIMC”) and the Singapore International Arbitration
Centre (“SIAC”).
The AMA Protocol provides a one-stop process where parties

attempt mediation in the course of the arbitration proceedings
and if such mediation is successful, parties may request their
mediated settlement be converted into a mutually agreed
upon (Consent) Arbitral Award. If, however, the mediation is
unsuccessful then parties proceed with the arbitration processes
with different arbitrators and mediators appointed for the
respective proceedings separately in a distinct manner.
Benefits of Arbitration
Positive characteristics of arbitration are perceived to be its
flexibility, speed and cost. Also important are thoroughness and
fairness, as the arbitrator relies on the evidence before him and
will often give reasons for his decision.
(1) Advantages
The parties are able to choose the arbitral tribunal; parties can
decide on the procedure to be followed; parties can bring their
own counsel or other representatives; the decision may be reached
with less cost and complexity than in litigation; the process is
guaranteed to reach a binding determination which can be agreed
to be final (although an appeal on the grounds of bias or breach of
procedural fairness cannot be ruled out); and immunity from suit
for the tribunal can be achieved.
(2) Time, costs and complexity

At first glance, arbitration may appear to be more expensive than
going to court. The experts and lawyers involved do not charge
less because the case is in arbitration. In addition, the parties must
pay the fees and expenses of the tribunal and, if there is to be a
hearing, the cost of renting of a large room for the hearing, as well
as a room for each party to store their documents and hold their
discussions will be included. However, in some cases, the flexibility
of a well-managed arbitration can yield substantial cost savings to
the parties, and court costs are becoming a significant factor in
some jurisdictions.
General Principles of Arbitration

(1) Privacy and confidentiality
Arbitrations, as opposed to litigation, are private, as the parties
have agreed to renounce the right to public justice, sometimes
precisely in order to protect their private information. In
arbitration, only the parties, their representatives, experts and
witnesses can attend, unless the parties consent otherwise. Most
arbitration awards are never released to the public, and if they are,
ARBITRATION 107
it will be with the consent of the parties and in a redacted form,

that is, with all identifying information removed so as to protect
the parties’ anonymity.
Parties who consider that confidentiality is important to them

should take the precaution of inserting a confidentiality agreement
into their dispute resolution clause in order to maximise the
protection of their sensitive information.
(2) Enforceability and the New York Convention

A key feature of arbitration is that at the end of the arbitration
process, the tribunal makes an award which determines all the
issues between the parties that have been put to that tribunal. To
be useful, it is important that the award can be enforced as if it is
a court judgment.
In a domestic commercial arbitration, where two parties located

within the same jurisdiction enter a contract, there will be little
difficulty in applying domestic laws and the procedures of
domestic courts. However, if one of the parties is located in a
foreign jurisdiction, as is almost universal in import and export
trade, the foreign party is generally not subject to domestic laws.
International arbitration raises issues as to the law that should
be applied, the procedure that should be followed and the place
where the arbitration should be located.
A major advantage of arbitration for international business

operators is the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards 1958 (“the New
York Convention”). The New York Convention gives arbitration
awards common currency among all the states which have

agreed that their courts will treat arbitration awards made in
one convention state as if they were local judgments of their
own state. The New York Convention is the backbone of
international arbitration today.
(3) “Seat of arbitration” contrasted with “venue

of arbitration”
As a brief pointer, parties to an arbitration ought to take note of
the distinction between the “seat of arbitration” and the “venue
of arbitration”. The seat of arbitration essentially sets out the
governing procedural law of the arbitration, as well as the law
which governs the enforceability of the award that will be given.
The seat of arbitration will also affect other ancillary matters

such as whether the arbitral award will be considered a domestic
or foreign (international) award in the courts of the country
in which the “winning party” wishes to enforce the award, the
extent to which a local court might involve itself in the arbitral
process, as well as the choices available to parties when wishing
to challenge or review the arbitral award.
This must be distinguished from the venue or place of arbitration,

which is where the actual arbitral proceeding will take place, that
is, where the parties will have their hearings and conferences. The
important point to note here is that these places may be different,
although not necessarily so.
Practically, it is very important (and indeed desirable) that parties

properly detail the arbitration clauses in their agreements, as
ARBITRATION 109
this will go to increasing the degree of certainty in respect of

the dispute resolution mechanism agreed on by parties. This is
contrasted with clauses which merely refer any dispute arising out
of or in connection with the agreement to simply arbitration. The
choice of seat is especially important, in light of the fact that this
would influence the process and rights relating to the enforcement
of the arbitral award. At the end of the day, after going through all
that expense and effort, it would be a shame if parties are not able
to enforce the award in the jurisdiction which they need to, and
are left with just a paper judgment (award).

There are two primary ways that parties can agree to arbitration.
First, parties can include an arbitration clause in their agreements.
Second, parties can sign an arbitration agreement after the
dispute has arisen.
The following are some examples of arbitration clauses:
Singapore International Arbitration Centre (SIAC) Model Clause3

Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration in [Singapore] in accordance with the Arbitration Rules of [the Singapore
International Arbitration Centre (“SIAC Rules”)] for the time being in force, which
rules are deemed to be incorporated by reference in this clause. The Tribunal shall
consist of [one/three] arbitrator(s). The language of the arbitration shall be [English].
International Chamber of Commerce (ICC) Model Clause4

All disputes arising out of or in connection with the present contract shall be finally
settled under the Rules of Arbitration of the [International Chamber of Commerce]
by one or more arbitrators appointed in accordance with the said Rules.
3 http://www.siac.org.sg/model-clauses/siac-model-clause
4 https://iccwbo.org/dispute-resolution-services/arbitration/arbitration-clause/
9
LITIGATION
General Overview of Litigation

Litigation in Singapore entails a party, the plaintiff,
commencing a suit in the courts against the other party,
the defendant. It is often considered the traditional go-to
avenue for parties in a dispute. Do note that the law does
not require you to be represented by a lawyer unless you are
a body corporate, for example, a limited company or a private
limited company.
The key difference between the courts and all other forms of
dispute resolution mechanisms as mentioned in the preceding
chapters is that, while the judge is a neutral third party hearing
the dispute, the judgment that the court delivers is enforceable
through the court processes. This is arguably more compelling
in terms of compliance with and enforcement of the judgment
since there will be adverse consequences for non-compliance. In
Singapore, both the State Courts and the Supreme Court form
the Judiciary.
(1) State Courts

In general, civil cases involving claims not exceeding S$60,000
are dealt with by the Magistrates’ Courts. For completeness,
LITIGATION 111
the Magistrates’ Courts also exercise criminal jurisdiction

for offences where the maximum term of imprisonment
provided by law does not exceed five years or which is a fine-
only offence.
Civil and commercial claims of more than S$60,000 but not

exceeding S$250,000 are dealt with by the District Courts.
Again, the District Court also exercises criminal jurisdiction
to try offences for which the maximum term of imprisonment
provided by law does not exceed ten years or which is a fine-
only offence.
The State Court also has the Small Claims Tribunal (“SCT”)
that deals with a limited type of cases of up to S$10,000
(increased to S$20,000 only with the parties’ consent in writing
to do so). The SCT is also circumscribed to hear only specific
categories of claims, namely:
a. contracts for the sale of goods;
b. contracts for the provision of services;
c. torts for damage caused to property;
d. refunds of motor vehicle deposits under the Consumer
Fair Trading (Motor Vehicle Dealer Deposits)
Regulations 2009; and
e. contracts relating to a lease of residential premises not
exceeding two years (subject to certain exclusions).
Only for the SCT, all claims must be filed within 1 year from the
date of the incident. The procedure is meant to be an informal,
easy and inexpensive way to solve conflict. If you want to start a
claim, this is what you can expect:
a. You will first attend a consultation before the Registrar,

who will mediate the claim and assist the parties in
resolving the dispute.
b. If a claim is not settled at the consultation before the
Registrar, it will generally be fixed for hearing before
a Referee (judge) within seven days from the date of
the consultation. The Referee will also explore the
possibility of settling the claim before adjudicating
on it.
As a final point to note, lawyers are not allowed to represent any

of the parties in proceedings before the SCT, and an order given
by the Referee is binding on the parties and enforceable as an
order of the Magistrates’ Court.
(2) Supreme Court

The High Court exercises original and appellate jurisdiction
in civil and criminal matters. It hears cases in the first instance
as well as cases on appeal from the State Courts. The court’s
jurisdiction is as follows:
a. civil cases where the claim exceeds S$250,000;
b. probate matters where the value of the estate exceeds
S$5,000,000; and
c. ancillary matters in family proceedings where assets
are worth S$1,500,000 or more.
In general, criminal cases tried in the High Court are offences

punishable by death or with imprisonment terms exceeding ten
years. The High Court can also hear points of law in special
cases submitted by a District Court or Magistrates Court. The
LITIGATION 113
High Court can reverse decisions from the State Courts or ask
the State Courts to conduct a new trial on the matter.
The Court of Appeal hears appeals of civil and criminal cases

from the High Court. The Court of Appeal is presided over by
the Chief Justice, and in his absence, a Judge of Appeal or a Judge
of the High Court. The Court of Appeal is usually made up of
three judges. However, certain appeals may be heard by only two,
five or any greater uneven number of judges.
(3) Singapore International Commercial Court

The Singapore International Commercial Court (“SICC”) seeks
to further boost Singapore’s value as a leading forum for legal
services and international commercial dispute resolution. It offers
litigants the option of having their disputes adjudicated by a panel
of experienced judges comprising specialist commercial judges
from Singapore and international judges from both civil law and
common law systems. Parties may prefer to resolve their disputes
in the SICC so that they can take advantage of a well-designed
court-based mechanism which will enable parties to avoid the
problems found in international arbitration.1
It serves as a companion rather than a competitor to arbitration

as it seeks to provide parties in transnational businesses with
one more option to resolve transnational commercial disputes.2
Furthermore, the 2016 ratification of the Hague Convention on
Choice of Court Agreements, along with the enactment of the
Choice of Court Agreement Act,3 will enhance the international
1 http://www.sicc.gov.sg/About.aspx?id=21
2 Ibid.
3 Choice of Court Agreement Act 2016 (Act 14 of 2016).
enforceability of Singapore court judgments especially those of

the SICC that will then make the SICC a more attractive dispute
settlement option as a neutral litigation venue.
This is because the ratification sets out that if a Singapore court

is the chosen court of an exclusive choice of court agreement
covered by the Convention, the dispute must be heard in
Singapore only and this in turn strengthens the enforcement of
agreements that specify that Singapore courts are the exclusive
dispute resolution forum.4
Applicable Rules
In general, the laws of Singapore are governed by statutes which
are available on Singapore Statutes Online.5 Of particular
relevance would be the Rules of Court (Cap 322, R5), which
provides for procedure as to the service of documents, and the
overall timeline for a civil claim in the courts. As this is subsidiary
legislation, it ought to be read together with its parent legislation,
the Supreme Court of Judicature Act (Cap 322) and the State
Courts Act (Cap 321).
Main Stages in Litigation

(1) Letter of Demand
Prior to beginning of an action in court, where a potential plaintiff
has engaged a law firm to act on its behalf, its lawyer may first
send a letter of demand requiring the other party to comply with
the claimant’s demands or risk a lawsuit. Where demands are
not complied with, the claimant may be advised to commence
legal proceedings.
4 https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/singapore-ratifies-hague-
convention-on-choice-of-court-agreement.html
5 https://sso.agc.gov.sg
LITIGATION 115
(2) Commencing Proceedings – Pleadings

Anyone who has a claim (known as the plaintiff ) may issue a Writ
of Summons or an Originating Summons and have it served on
the other party (known as the defendant). If the defendant does
not dispute the plaintiff ’s claim, the defendant may wish to get
in touch with either the plaintiff or his/her lawyer to settle the
claim immediately. By doing so, both parties would incur less
legal costs.
If the defendant disputes the claim, the defendant should

consult a lawyer quickly. The defendant’s lawyer will then file
a document (Memorandum of Appearance) in court on the
defendant’s behalf to dispute the claim. This has to be done
within eight days of the receipt of the Writ of Summons or
the Originating Summons. Instead of appointing a lawyer, the
defendant may also wish to file the Memorandum of Appearance
by attending the Registry of the appropriate court.
Note that refusing to acknowledge service of a Writ of Summons

does not make the service of the Summons invalid. It also does
not prevent the plaintiff from proceeding further. In absence of
any Memorandum of Appearance, the plaintiff may apply for
a judgment in default of appearance where the judge decides
the case and delivers a judgment without the participation of
the defendant.
The defendant must then file his/her defence to the claim in

court and also deliver a copy of the defence to the plaintiff ’s
address of service or the plaintiff ’s lawyers at their office
address within 14 days from the date that the Memorandum
of Appearance was filed. If the defendant has any counterclaim

against the plaintiff, the defendant can also make it in the same
action brought by the plaintiff. The plaintiff may serve on the
defendant his/her reply (and defence to a counterclaim, if any)
within 14 days after the defence (and counterclaim) has been
served on him/her.
(3) Common interlocutory applications

Default judgment
As briefly mentioned above, where a defendant does not enter
an appearance by filling a Memorandum of Appearance, the
defendant admits all allegations in the Statement of Claim.
As such, the plaintiff may apply for default judgment against
the defendant.
Summary judgment
This is applied by the plaintiff to a claim where it is clear from the
facts of the case in the pleadings that the defendant has no real
defence to the claim. It is to be applied within 28 days after the
pleadings are deemed to be closed.
Striking Out
There are four grounds allowing one party to strike out the other
party’s pleading(s) in an action, namely that the pleading(s):
a. discloses no reasonable cause of action or defence as
the case may be;
b. is scandalous frivolous or vexatious;
c. may prejudice, embarrass or delay the fair trial of the
action; or
d. is otherwise an abuse of the process of the court.
LITIGATION 117
The court may also subsequently order the action to be stayed or

dismissed or judgment to be entered accordingly.
Third party procedure

The defendant may apply to commence third party proceedings
against a non-party to the suit if the defendant is of the view that
the non-party is able to indemnify it and/or otherwise contribute
towards the plaintiff ’s claim.
Injunctions
At any stage of the proceedings but usually after the issuance
of a writ, the plaintiff may apply to court for an interlocutory
injunction directing the defendant to do or refrain from doing
something until the trial.
Mareva injunction
This form prevents parties from taking steps to deliberately
frustrate the orders of the court by dissipating their assets either
locally or worldwide, in order to avoid the risk of having to
satisfy any judgment which may be entered against them in
the proceedings.
Anton Piller order/Search order

It is a mandatory injunction that resembles a search warrant as
it seeks to prevent a defendant from destroying incriminating
evidence by granting the holder the order of right to search the
premises of the other party for material relevant to the subject
of the litigation. Such an application is made without notice to
the defendant.
Security for costs

To ensure that the defendant obtains the costs in proceedings
in the event that the action fails, the defendant may apply for
security for costs against the plaintiff.
Offer to settle
A party to any proceedings may serve on any other party an offer
to settle any one or more of the claims in the proceedings on
the terms specified in the offer to settle. If the proceedings are
settled, then the action may be discontinued or withdrawn with
no decision made as to the liability of any party.
(4) Discovery
Discovery is an integral part of any litigation proceedings where
parties are compelled to provide documentary evidence of their
claims/defences, which also includes evidence that may not be
beneficial to their positions. This is a general obligation imposed
on all parties in proceedings. It includes documents that can
adversely affect a party’s own case or another party’s case or
support the other party’s case.
(5) Pre-trial conferences

Pre-trial conferences are sessions with a judge/registrar to
confirm that all pre-trial matters and applications are dealt with
before the trial.
(6) Affidavits and subpoenas

Each party has to prepare, file, and exchange affidavits of
evidence-in-chief of each of its witnesses. These are written
sworn statements by the witnesses which will stand as their
LITIGATION 119
testimony at the trial and on which they will be cross-examined.

The affidavits of evidence-in-chief are filed and exchanged
before the trial.
Subpoenas may be issued to ensure the attendance of witnesses

at trial, failing which the affidavits that they have submitted as
evidence-in-chief will be rejected by the court.
(7) Setting down

After the pleadings (such as the statement of claim, defence,
reply) have been filed and the various pre-trial matters have been
dealt with (including the disclosure of all documents and other
evidence to be relied on at the trial to support each party’s case),
and parties are ready for trial, the case must be set down for trial.
This is a necessary step which has to be taken by either party
(usually the plaintiff ) before an action goes to trial.
(8) Trial
Trials are usually conducted by the lawyers representing the
various parties. Alternatively, a party may choose not to be
represented. In such a case, he is known as a litigant-in-person.
In most cases, the plaintiff ’s solicitors will open the plaintiff ’s case
(unless the burden of proof is on the defendant) by addressing the
court and the plaintiff ’s witnesses will take the stand first and be
cross-examined. Each witness may be re-examined after his/her
cross-examination has ended. After all the plaintiff ’s witnesses
have given evidence, the plaintiff ’s case is closed. It is then the
defendant’s witnesses turn to testify and be cross-examined and
re-examined on their evidence. After the defendant’s witnesses
have completed giving their testimony, parties will make closing

submissions which may, depending on the judge and complexity
of the matter, be either oral or written.
(9) Judgment
The judgment is the decision of the court at the conclusion of
the trial. The court may pronounce judgment immediately after
listening to the closing submissions. Alternatively, the court
may adjourn the case to consider the evidence and arguments.
In such an instance, the court will inform the parties on a later
date to attend before the court for the delivery of judgment.
In some cases, a judge may grant judgment on the issue of liability

but not make a ruling on the precise quantum of damages. In
such a case, the quantum of damages to be awarded is assessed
by a Registrar in a hearing in chambers. The Registrar will hear
evidence from appropriate parties, such as the injured plaintiff
or medical experts, to determine the appropriate quantum of
damages to be awarded.
(10) Enforcement/Execution on judgment

Depending on the type of judgment awarded and the available
assets of the judgment debtor, enforcement/execution may
include writs of seizure and sale of assets or belongings, possession,
delivery, or distress (of tenanted properties); garnishee of bank
accounts or attachment of income; examination of judgment
debtor or judgment debtor summons of assets; and bankruptcy
of persons or winding up of companies.
LITIGATION 121
(11) Appeals
In restricted circumstances, an appeal is available to either the
plaintiff or the defendant, to try to overturn the judge’s decision
and take the case to a higher court.
10
DISPUTE RESOLUTION CLAUSES
General Overview of Dispute Resolution Clauses

A dispute resolution (“DR”) clause is a clause or provision within
an agreement or contract which specifies the mechanism for the
resolution of disputes between the contractual parties, and is as
such an important consideration.
(1) Primary clauses

While such clauses are commonly set out towards the end of
an agreement or contract, and often classified as “boilerplate”
clauses with standard wordings, these clauses, together with the
governing law clause, are the first ports of call for parties when a
dispute arises. These two clauses collectively constitute the basic
rules of engagement when it comes to deciding how a dispute
may be resolved under a particular contract.1
(2) Multi Tier or Escalation clauses

One sub-species of DR clauses is the multi-tiered or escalation
clause, which provide for a dispute resolution to be escalated
in a step-wise manner, usually from comparatively informal
1 Ashurst, “Dispute Resolution Clauses: an Overview”, Ashurst Legal Updates (28 November 2017)
<https://www.ashurst.com/en/news-and-insights/legal-updates/dispute-resolution-clauses-an-
overview/> (last accessed 8 January 2019).
DISPUTE RESOLUTION CLAUSES 123
discussions between the parties, which may or may not be

binding, to eventually more and more formal processes until the
dispute can be conclusively disposed of.2
(3) Example of such clauses 3

Sample clauses/provisions
Step 1 – Internal dispute management: “Parties shall first attempt to resolve any
Dispute through mutual and amicable discussion and negotiation.”
Step 2 – Escalated internal dispute management: “ If the Dispute is not resolved
through such amicable discussion within 14 days from which the Dispute has arisen,
it may then be referred to the CEOs/Managing Directors/equivalent officers of the
Parties to attempt resolution.”
Step 3 – Mediation: “If Parties are unable to resolve the dispute within a further 21
days from this attempted resolution, the dispute may be referred to mediation in
accordance with the [Singapore Mediation Centre] rules.”
Step 4 – Formal process: “If Parties are unable to come to a mediated settlement
agreement, in accordance with the above processes, either party may commence
[litigation/arbitration] proceedings in accordance with [relevant choice of forum
rules, and choice of law clauses] for final and conclusive determination.”
Mediation-arbitration clause4
“All disputes, controversies or differences (‘dispute’) arising out of or in connection with

this contract, including any questions regarding its existence, validity or termination,
shall first be referred to mediation in Singapore, in accordance with the Law Society
Mediation Rules for the time being in force.
In the event that the dispute cannot be resolved in mediation within the time agreed by
the parties, the parties shall refer the dispute to arbitration in Singapore in accordance
with the Law Society Arbitration Scheme and the rules thereunder for the time being
in force.”
2 Michael Darowski, “The Basics: What Should a Dispute Resolution Clause Say?”, Gowling WLG
Resources (17 April 2018) < https://gowlingwlg.com/en/insights-resources/articles/2018/what-
should-a-dispute-resolution-clause-say/> (last accessed 8 January 2019).
3 Bird & Bird LLP, “First for Dispute: Escalation Clauses”, Bird & Bird Media < https://www.
twobirds.com/~/media/pdfs/brochures/dispute-resolution/client-know-how/client-briefings---
escalation-clauses.pdf?la=en> (last accessed 8 January 2019).
4 Law Society of Singapore website < https://www.lawsociety.org.sg/For-Public/Dispute-
Resolution-Schemes/Mediation-Scheme/Agreement-to-Mediate> (last accessed 8 January 2019).
(4) Clarity
Thus, as can be seen above, each tier is designed to handle the
dispute where it has not been resolved by the previous step,
and each tier then “escalates” the dispute resolution to one step
higher than the previous one. These clauses usually require each
stage of the process to be engaged in that specific order before
parties may progress to the next step. While the above sample
is just an example to show the kinds of dispute resolution
mechanisms that can operate within a contractual framework,
there is no limit on the number of steps or the types of dispute
resolution mechanisms that can be drafted into such a clause. It
would depend on many variables including, but not limited to,
the contractual value, types of dispute (for example, technical
or valuation), costs of each dispute resolution process, and how
swiftly parties need a resolution.
Issues of incorporation may also arise in multi-contract situations.

Basically, this happens when it is ambiguous whether or not a
particular DR clause has been incorporated into an agreement
(whether by virtue of it being set out in a separate document
to the main contract, or where there are two contracts and one
supposedly incorporates the terms of one into the other, etc).5
Thus, these DR clauses should ideally be clearly drafted and
unambiguous, so as to reflect the intention of parties, as well as
to ensure that they do not find themselves in a forum which they
had sought to avoid in the first place.
5 A Chaize & J Carter, “Inconsistent dispute resolution clauses – when should the ‘one-stop shop’
give way to gravity?”, DLA Piper (27 December 2018) < http://pdf.dlapiper.com/pdfrenderer.
svc/v1/ABCpdf9/GetRenderedPdfByUrl//Inconsistent%20dispute%20resolution%20clauses.
pdf/?url=https://www.dlapiper.com:443%2Fen%2Fus%2Finsights%2Fpublications%2F2018%2
F12%2Finconsistent-dispute-resolution-clauses%2F%3F%26pdf%3D1&attachment=false> (last
accessed 8 January 2019).
DISPUTE RESOLUTION CLAUSES 125
As mentioned above, a fundamental rule when it comes to

negotiating and discussing a DR clause ought to be clarity and
mutuality, that is, both parties must be on the same page as to
what dispute resolution mechanisms they wish to include under
the contract. The first consideration would be what the ultimate
forum would be for the resolution of any dispute arising under
the agreement (usually litigation or arbitration). Some factors
which may affect this choice include enforceability, flexibility,
confidentiality, party autonomy, speed, finality, and cost, etc.
Other considerations after that would be the scope of the
clause, or put another way, what kind of disputes would fall
under this clause (whether all and sundry disputes, or specific
types of disputes, etc). After this, parties ought to consider
how much further down the steps/tiers of dispute resolution
mechanisms they are willing to include, in the context of
their agreement, in order to identify the most appropriate
and tailored approach for fast and economical disposal
of disputes.
Practical Considerations
Apart from the other considerations which have been enumerated
above, the following may be considered to be a brief summary
of the most salient points. These points ought to be of guidance
regardless of whether or not readers are currently entering into a
contract or agreement, or simply wishing to find out more about
dispute resolution in Singapore. It is never too early to think
about potential disputes arising, nor the appropriate mechanism
for dealing with them. While it may seem ominous to some to
be speaking about disputes at the time of closing a deal (when
one should instead be excited about future possibilities), the
importance of a properly drafted and well thought-out DR clause

cannot be denied.
While parties to a contract would usually think of litigation as

the “standard” option, this may not always be the optimal option
for parties under that contract. However, complications may arise
when parties are of different nationalities, and each may prefer to
have the litigation take place in their own home country, on their
“home ground”. If either court is unsatisfactory to either party,
then perhaps another method of dispute resolution with a neutral
decision-maker would be more suitable.
Another strategic factor to think about would be enforcement.

A disputant would not want to go through the whole slew of
litigation or arbitration only to find out that the judgment
or arbitral award he has obtained cannot be enforced in the
jurisdiction where the defendant has the most assets, for
instance. In other words, he has only a paper judgment. In this
regard, arbitration would definitely have a greater advantage
compared to court litigation, because of the 159 parties to the
New York Convention on the Recognition and Enforcement
of Arbitral Awards. Under this convention, convention parties
are typically obligated to enforce arbitral awards from another
convention state.
11
ONLINE DISPUTE RESOLUTION
General Overview of Online Dispute Resolution

“Online” generally refers to processes and mechanisms over
the Internet through the use of technology such as personal
computers, laptops, and even handphones/cellphones and tablets.
Online Dispute Resolution (“ODR”) has developed into a class
of ADR processes that takes advantage of Internet technology to
facilitate dispute resolution
ODR platforms allow the conduct of dispute resolution process

(including the filing, managing and even the mediation and/
or adjudication of the claim) online and has often been used to
resolve electronic commerce (“e-commerce”) or Internet-related
disputes which are often cross-border in nature and may be too
costly to deal with through traditional forms of dispute resolution.
They are essentially innovative platforms that use technology
comprising of effortless case management and dispute resolution
tools to improve access to justice around the world.1
Main Stages of ODR Proceedings

The ODR process includes negotiation, facilitated settlement
and a final stage.
1 https://resolvedisputes.online
The first stage commences when a claimant submits a notice

through the specified platform and the administrator informs
the respondent of the claim. Then, the technology enabled
negotiation begins where the claimant and respondent negotiate
directly via the platform.
If that fails, they may have a second “facilitated settlement”

stage, where the administrator appoints a neutral party who
communicates with the parties to reach a settlement.
If that too fails, the final stage will commence, in which the neutral
party or the administrator may inform the parties of such a stage.
Existing dispute resolution mechanisms such as arbitration

and adjudication already provide for “documents only” review
of claims in arriving at awards and determinations, and also
the commonly adopted approach of requesting parties to
transmit their respective cases, submissions and communication
electronically via e-mail. In light of this, having these disputes
submitted via an online platform as an option is also another
possibility, which shows tremendous potential in the evolution of
ODR as a dispute resolution mechanism.
ODR for Infrastructure and Construction Disputes

(1) Intricacies of infrastructure and construction projects
It is common in the construction industry for differences and
disagreements between parties to occur throughout the life cycle of
a construction project, mainly because construction projects tend
to be complex with difficult conditions attached. They also require
the cooperation of multiple contracting parties from the time
ONLINE DISPUTE RESOLUTION 129
of negotiation, procurement of the contract and all through the

construction phase up to completion. Some common issues which
may arise include interpretation of the contractual provisions, the
scope of works, understanding of the obligations, design, quality,
time and payment issues. There are also inherent uncertainties at
any stage/phase of the project, and the need to deal with technical
issues such as defects, delays, acceleration and liquidated damages.
In adopting the appropriate dispute resolution mechanism,

parties also need to consider the possibility of the project’s
adverse performance, lack of manpower optimisation due to
it being used for disputes, erosion of confidence and trust in
working relationships, adverse impact on the reputation of the
parties, lost opportunities for future work and destruction of
business relationships.
(2) Possible ODR platforms for construction disputes

It is the author’s view that infrastructure and construction disputes
can well be resolved on an ODR platform. While there are
currently no such ODR framework, the following mechanisms
may well develop into an online platform, a fast-track and/or
documents-only dispute resolution mechanism without the need
for parties to be represented, such as:
Adjudication under the Building and Construction Industry

Security of Payment Act2
With construction payment disputes, through the adjudication
process, an adjudicator may determine the matter based
purely on the adjudication application (which usually contains
2 https://www.bca.gov.sg/SecurityPayment/security_payment.html
the claimant’s submissions and supporting evidence) and

the adjudication response (which contains the respondent’s
submissions and supporting evidence) without having to hear
from the parties directly.
Documents-only arbitration under the Singapore

International Arbitration Centre Rules
A fast-track procedure whereby the arbitrator may decide on the
dispute (which does not exceed S$5million unless parties agree
otherwise, or when it is a matter of exceptional urgency) on the
basis of documentary evidence only.
Expert Determination under the Singapore Institute of

Architects Expert Determination Rules
A mode of dispute resolution by which parties appoint their
own expert to consider the disputed issues and make a binding
decision based on an investigation of the facts, the procedure of
which is normally dictated by the terms of the original agreement
made between parties.
Internationalisation of ODR
Several issues relating to a single ODR framework internationally
are discussed in the next chapter.
Fundamental Principles Underlying the ODR

Mechanism
While traditional judicial mechanisms for legal recourse may
not offer an adequate solution for cross-border e-commerce
disputes, ODR is intended to be simple, fast and efficient so
ONLINE DISPUTE RESOLUTION 131
that it may be used in a “real world setting”. Thus, it should not

impose undue costs, delays and burdens that are disproportionate
to the economic value at stake.
Fairness, transparency, due process and accountability may assist

in addressing an issue which may be commonly encountered in
cross-border e-commerce transactions.
(1) Communications, roles and responsibilities

To enable ODR communications, it is important that both
the administrator and the platform be specified in the dispute
resolution clause and ensure all communications should take
place on the ODR platform. Both parties in the dispute,
as well as the ODR platform itself, should have a registered
electronic address.
The ODR administrator should promptly acknowledge receipt

of any communication via the ODR platform; quickly notify
parties of the availability of any communication received
by the ODR platform; and keep the parties informed of the
commencement and conclusion of different stages of the
proceedings.To save time, a communication should be deemed
to be received by a party when the administrator notifies that
party of its availability on the platform; and deadlines in the
proceedings should run from the time the administrator has
made the notification.
The ODR administrator should also be empowered to extend

deadlines, in order to allow for flexibility when required.
(2) Transparency
The relationship between the ODR administrator and a
particular vendor should be disclosed such that the users of the
said service are informed of any possible conflicts of interest. The
administrator may, at his own discretion, publish anonymised
data or statistics on the outcomes of most ODR processes
such that parties may assess its overall record, consistent with
applicable principles of confidentiality. Any relevant information
should be readily available on their website in a user-friendly
and accessible manner.
(3) Independence
The administrator should adopt a code of ethics for its neutrals
such that they may be thoroughly guided through conflicts of
interest or other rules of conduct. The administrators should be
adopting policies relating to identifying and handling possible
conflicts of interest.
(4) Expertise
The administrator may wish to implement comprehensive
policies regarding the selection, training and certification of
neutrals. An internal oversight or quality assurance process may
help the ODR administrator ensure that a neutral conforms with
the standards it has set for itself.
(5) Consent
The process should be based on the express and informed consent
of all parties.
12
INTERNATIONAL PERSPECTIVES
Internationalising Mediation
(1) Singapore’s Mediation Act
Further to the points made in Chapter 3, this Act, along with
the clear legislative framework, promotes the use of mediation
internationally. Section 17 provides the restrictions on the
practice of Singapore law for mediation counsel and mediators
but these do not apply to mediations administered by an approved
mediation service provider or a certified mediator for foreign
counsel and mediators. This will afford parties greater flexibility
in appointing their own counsel and mediators internationally.
(2) The Singapore Convention on Mediation

In December 2018, the United Nations General Assembly, at its
73rd Session in New York, passed the resolution adopting the UN
Convention on International Settlement Agreements Resulting
from Mediation, resolving also to name this Convention the
Singapore Convention on Mediation. Singapore is expected to
be amongst the first few signatories of the convention. Signed
in Singapore on 7 August 2019,1 it provides for cross-border
enforcement of Mediated Settlement Agreements (“MSAs”).
1 https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/UN-convention-on-
mediationto-be-named-after-Singapore.html
The Preamble of the Singapore Convention showcases

Singapore’s commitment to internationalising dispute
resolution as it will offer businesses and trades greater certainty
that such MSAs can be relied upon to resolve cross-border
commercial disputes. The aim of the Convention is to establish
a framework for international settlement agreements resulting
from mediation, in order to contribute to the development of
harmonious international economic relations.
It is hoped that the Singapore Convention on Mediation will

eventually become what the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards has
become, in the context of arbitration.
(3) Taking Mediation Standards International

The Singapore International Mediation Institute (“SIMI” – the
premier independent professional standards body for mediation
in Singapore and the region),2 the Singapore International
Dispute Resolution Academy (“SIDRA” – Asia’s global thought
leader for learning and research in the Negotiation and DR)3
and the Asian Institute of Alternative Dispute Resolution
(“AIADR” – the Asian centre dedicated to promoting the
practice of ADR with a special focus on emerging Asian and
African economies)4 are leading Asian institutions which
promotes a strong framework for advancing ADR with
international standards.
2 http://www.simi.org.sg/
3 http://www.sidra.academy/
4 https://aiadr.org/about-us/
INTERNATIONAL PERSPECTIVES 135
Infrastructure & Construction Dispute Resolution

(1) Belt & Road Initiative (“BRI”)
The BRI is the infrastructure development strategy of the
People’s Republic of China (“PRC”) focusing on connectivity
and cooperation between about 65 countries in Asia, Africa,
Middle East and Europe. With an estimated investment and
development of cross boarder infrastructure projects worth
about US $ 900 billion, many of the countries involved are
redeveloping and expanding ports, highways, railways and
gas pipelines.
In January 2019, the China Council for Promotion of

International Trade (“CCPIT”) and the Singapore International
Mediation Centre signed a memorandum of understanding to
set up a BRI international panel of mediators to better handle
disputes that may arise from projects under the BRI.
(2) Singapore Infrastructure Dispute-Management Protocol

(“SIDP”)5
The SIDP was announced on 23 October 2018 as a comprehensive
Dispute Management mechanism to assist parties to manage
infrastructure projects (projects with a value of S$500,000 or
above, so that it may account for the appointment of the board
to be cost-effective) so that they may prevent differences from
escalating uncontrollably into disputes. The SIDP expands the
existing concept of Dispute Boards (“DBs”) and uses it as another
tool entirely. Parties can access full professional and administrative
support (including meeting, escrow and other administrative
5 http://www.mediation.com.sg/business-services/sidp/
services) through either the SIMC6 for international disputes or

the SMC7 for local disputes.
In using the SIDP (included via a clause in the contract

incorporating the protocol), parties will appoint a DB, as
described in Chapter 6.
While the SIDP complements and facilitates the other ADR

mechanisms, unlike other dispute resolution mechanisms which
are more reactive, the SIDP takes a far more proactive and
concurrent approach in anticipating issues and preventing them
from getting out of hand such that they are subsequently easier
to control and manage, including eliminating extraneous matters
and narrowing down issues relating to the eventual dispute
resolution mechanisms and thereby still saving time and cost.
(3) Dispute Resolution Board Foundation8

The Dispute Resolution Board Foundation (“DRBF”) is a
nonprofit organisation dedicated to promoting the avoidance
and resolution of disputes worldwide using the DB method.
The DRBF provides assistance with the worldwide application
of the DB method by providing advice and suggestions tailored
for the conditions and practices existing in project areas. It also
provides guidance on effective DB implementation tailored
for the conditions and practices existing in specific project
areas, as well as training DB practitioners and promoting
best practices.
6 http://simc.com.sg/aas-ene/
7 http://www.mediation.com.sg/business-services/sidp/
8 http://www.drb.org/
DRBF provides a Practice and Procedures Manual,9 which is a

reference guide for best practices in the implementation of DBs
and assists users of the DB method, such as owners/employers,
construction managers, architects, engineers, contractors,
attorneys, and others in employing the process more effectively.
Split into four sections of concept, user guide, member guide,
and multinational practice, it describes the procedures for
successful implementation and provides guide specifications
that can be adapted as necessary. The section on multinational
practice outlines the growth of multinational DBs and sets out
the provisions in use by the World Bank and other development
banks, and provisions recommended by the FIDIC and
International Chamber of Commerce.
Online Dispute Resolution (ODR) Internationally10

(1) United Nations (“UN”) & UN Commission on
International Trade Law (“UNCITRAL”)
The UN11 recognises that the sharp increase in online cross-
border transactions has created an increasing need for mechanisms
to resolve disputes that arise from such transactions.
In 2015, UNCITRAL decided that the work to be undertaken

in the field of ODR should take the form of a non-binding
descriptive document reflecting elements of an online dispute
resolution process, applicable to disputes arising out of both a
business-to-business (“B2B”) as well as business-to-consumer
9 http://www.drb.org/concept/manual/; https://www.drb.org/concept/manual/table-of-contents/
10 Refer to Anil Changaroth, “Online Dispute Resolution, Suitability for the Construction
Industry”, Asian Journal of Mediation (November 2016) and Anil Changaroth, “ODR –
Facilitator for the Belt & Road Initiative”, Asia Pacific Mediation Forum (Da Nang, Vietnam,
11–13 November 2017).
11 https://uncitral.un.org/en/library/online_resources/online_dispute_resolution
(“B2C”) transactions, and disputes arising out of both sales and

service contracts.
UNCITRAL is convinced that the resulting Technical Notes

will be able to assist all states, in particular, countries with
transitional economies, ODR administrators, platforms and
proceedings, in developing and using ODR systems.
UNCITRAL Working Group III had been working towards

drafting a non-binding descriptive document reflecting the
elements and principles of an ODR process, having agreed in
principle that an ODR process should apply to disputes arising
out of cross-border, low-value e-commerce transactions.
(2) Asia Pacific Economic Cooperation (APEC)’s Working

Group for Developing a Collaborative Framework for
ODR12
More recently in late 2018, there is a US proposed initiative
co-sponsored by Australia, Canada, Chile, Hong Kong, China,
Indonesia, Japan, Mexcio, New Zealand, Papua New Guinea,
Singapore, Taiwan, Thailand and Vietnam exploring the
opportunities for development of an APEC wide cooperative
framework for ODR (including definition, principles, ethical
considerations, procedural rules for process and legal framework)
to deal with cross border business-to-business disputes involving
Micro Small and Medium Enterprises (“MSMEs”).
12 https://aimp2.apec.org/sites/PDB/Lists/Proposals/DispForm.aspx?ID=2265
(3) China International Economic and Trade Arbitration

Commission’s Online Arbitration Rules (“CIETAC OAR”)
These ODR Rules adopted by the China Council for the
Promotion of International Trade and China Chamber
of International Commerce, was essentially intended to
independently and efficiently resolve larger volume B2B disputes,
e-commerce and other economic and trade disputes, with
elaborate provisions regarding electronic submissions, and data
interchange of documents.
(4) Russian Arbitration Association Online Arbitration

Rules (“RAA OAR”)
These ODR Rules facilitate independent, impartial and efficient
resolution of both contractual and non-contractual commercial
disputes by electronic means. Essentially, the entire arbitration
process is carried out online, from the filing of the statement of
case and defence, to the conducting of the hearing. The process
is based purely on the documents that are uploaded to the
platform and the rules provide that the arbitrator may direct
that a hearing be held via video or telephone conferencing.
Only in exceptional circumstances may the arbitrator require
parties to be present in person at the hearing.
(5) European Union’s Regulations on Consumer ODR

A European Union wide regulations platform facilitate the ODR
of contractual disputes between EU consumers and traders over
purchases made online, offering a simple, efficient and fast out-
of-court solution for disputes arising from online transactions,
providing easy and low-cost dispute resolution to boost both
consumer and trader confidence.
(6) British Columbia (Canada) Civil Resolution Tribunal

This Tribunal was established on 27 July 2016 and provides for
a single online location for an end-to-end process that guides
a user from information-support through to resolution of the
user’s strata property dispute and/or small claims dispute (of up
to the maximum value of $25,000 for debt or damages, recovery
of personal property, specific performance relating to personal
property, relief from opposing claims to personal property).
Concluding Remarks
Centuries Old Practices with ADR

ADR has been used for centuries in many cultures, including
Confucian ideals for mediation in China; the Panchayath (village
council) system of arbitration and/or out of court settlement and
the epic conflict resolutions in the Mahabharata and Ramayana
in India; the Musyawarah Mufaka practice of negotiation or
mediation to reach unified agreements in Indonesia; Kandian,
Thesavalamai and Mukkuva systems of traditional mediation
and arbitration laws used by village heads and rulers of specific
jurisdictions in Sr Lanka; the Shalish dispute resolution
mechanism in Bangladesh; the more recent Katarungang
Pambaranggay or Barangay systems of community-based justice
system in the Philippines; and the Rukun Tetangga peaceful
neighbour community mediation programme in Malaysia.
Legal Technology in ADR

In legal practice
It is significant to note that Singapore’s Chief Justice, the
Honourable Sundaresh Menon, has for several years (during the
opening of Singapore’s legal year) addressed legal practice and
technology, including this year when he addressed the need to
respond to the dramatically changing legal landscape reshaped
by technology to prepare for the new world with technological

platforms, which include machine assisted court adjudication
processes transforming the conventional notion of where and how
disputes are solved; to significant implications for legal methods,
to the emergence of legal service providers becoming established
as part of the landscape, and altering the face of legal practice;
and in his Honour’s 2018 and 2017 addresses, about the need
to take keen interest in ensuring that our legal sector remains
relevant and competitive, not just domestically but also regionally
and internationally, including developing new capabilities
for ODR.
Accelerating not disrupting ADR

While technology and disruption have been phrases commonly
used together in most industries including legal practice, it is
really about disturbance or problems which interrupt an event,
activity or process, while disruptive innovation creates new
market and value network which disrupts existing market and
value network.1 If one considers the first automobiles in the
late 19th century that were mass produced, such as the Model
T Ford in 1908, it simply revolutionised and transformed the
horse-drawn carriage.
Legal practice is no different, with the advent of legal technology

solutions that assist and speed up several of the basic upfront
work such as legal research, disclosure and review of documents.
The Singapore Academy of Law with its SAL Ventures (to
support the development of “Future Law” related enterprises by
encouraging innovation and facilitating investment into legal
1 Clayton Christensen, “The Innovator’s Dilemma” 1997.

Concluding Remarks 143
tech and “new law” start-ups based in Singapore) and its Future
Law Innovation Programme (national-level strategic initiative to
create a legal tech ecosystem in Singapore and to help the legal
community innovate new ways of delivering legal services in the
future economy)2 are leading the technology driven approach to
manage dispute resolution, which essentially accelerates (and not
disrupt) legal practice.
The Future of ADR

With the vast myriad of options of ADR mechanisms available
as discussed in the preceding chapters, parties now have more
options than ever to resolve their disputes, whether by the sole
use of ADR processes (for example, adjudication or mediation),
or by using an ADR process to supplement litigation (neutral
evaluation or expert determination). In this manner, parties will
be able to resolve their disputes expediently and at lower costs
as compared to the traditional route of litigation. Not only that,
but the ability of parties to select, customise and tailor their
dispute resolution needs to each and every dispute that may
arise is now at unprecedented levels and continues to develop
at a rapid pace.
The use of ADR will also allow parties to maintain good business
relations, which is essential in any industry. For contracting
parties or those on the verge of entering into such agreements,
it is crucial that parties to a contract stipulate clearly their
chosen methods of dispute resolution in their contracts so as to
avoid uncertainty and unnecessary litigation. This is a common
oversight as parties to a contract are often hesitant to consider
2 https://www.sal.org.sg/SAL-Ventures-Ltd
and deliberate over dispute resolution clauses at the time of

contracting as they would be on good terms and having good
business relations with each other at the point when they are
entering into a contract.
Dispute resolution mechanisms have developed far beyond the

confines of the traditional approaches that often leave parties
unsatisfied and in strained relations with those to whom they are
contractually bound. Now more than ever, there are few reasons
to be litigious and confrontational when encountering disputes;
instead, there is every reason to be collaborative and cooperative
in working towards mutually beneficial resolutions.
In support of these, ChangAroth Chambers and ChangAroth

InterNational Consultancy’s development of ODR mediation,
adjudication and dispute board platforms and application will
surely advance the cross-border accessibility to ADR.
It is this author’s hope that this guidebook truly guides the reader
through the basics of ADR, showcasing the differences that
would enable one to be able to decide on the appropriate DR
mechanism that best suits the individual and/or collective needs.
ANNEX
Consolidated table of Appropriate Dispute Resolution mechanisms
ADR KEY FEATURES STRENGTHS BEST USED FOR
Conciliation • Appointment of • Party autonomy • When a dispute
neutral third party to • Conciliator’s expertise has just arisen, in
persuade parties to order to prevent it
• Informal and flexible
arrive at agreement from escalating any
setting
• Conciliator has no further
• Private & confidential
determinative role on
(“P&C”)
content of dispute or
its outcome
• Merely advises
parties and makes
suggestions for
settlement
Mediation • Non-adversarial, non- • Cost-effective • Disputes in which
adjudicatory method • Specialist mediators parties still wish to
of dispute resolution with relevant subject- maintain working
• Neutral third party matter expertise relations after the
with expertise resolution of the
• Decision-making
dispute
• Focuses on parties’ power still remains
interests as opposed with parties • Disputes in
to their rights which parties are
• P&C
still willing to
• If parties can come
compromise and
to a settlement, that
work things out
settlement agreement
may be recorded as
an Order of Court,
and enforced as such
(should the need
arise)
Neutral • ‘Test water’ procedure • Identifies and focuses • Cases with
Evaluation • Best estimate of key issues in dispute substantial
parties’ likelihood of • P&C documentary
success at trial evidence
• Parties can determine
• Neutral third party whether evaluation • Cases with
will be binding or not conflicting expert
• Assessment of parties’
opinion
realistic chances • Fast
relative to each other • Cases where both
• General application
parties believe they
have a strong case

Expert • Appointed expert • Expert’s decision is • Disputes or matters
Determination determines a technical final and binding of valuation
issue that is disputed (subject to limited which are mainly
between parties challenge) dependent on
• Helps avoid/reduce • Stand-alone technical issues
expert witnesses if procedure, or • Cases where a trial
matter goes to trial supplement other judge is likely to
ADR mechanisms have to rely on
• Parties’ autonomy in expert witnesses
appointing expert anyway
• Fast
• P&C
Adjudication • Quick, interim relief • Fast • Projects which
for managing disputes • Preserves parties’ require very strict
as and when they rights through timelines to be
arise possibility of adhered to, eg in
• Adjudicator litigation or the construction
provides a arbitration industry
provisionally binding • Projects which
determination of require quick and
parties’ contractual effective interim
rights relief when a
• Very strict timeframes dispute arises
to ensure swift relief
Arbitration • Impartial tribunal • Confidentiality • Cases in which
decides on the dispute • Arbitral awards are the dispute is
between parties binding on parties complex, involving
• Most similar to issues of fact and
• Awards can also be
litigation, but without law, but where
enforced in other
the public character parties’ priority is
jurisdictions (subject
of the court process confidentiality
to certain conditions)
• Cases in which
• Parties can choose the
enforcement
arbitral tribunal and
in multiple
seat of arbitration
jurisdictions is
required
ANNEX 147

Dispute Boards • Board of specialists • Proactive, rather than • For long-term
created usually at the reactive projects, which are
start of a project • Dedicated first complex in nature
• Advising and making responder body for • Projects with
recommendations the resolution of higher risk of
to parties to avoid/ disputes disputes arising
minimise disputes • Party autonomy in
• Adjudicating on selecting members of
disputes referred to it the board
• Tailored for the
project’s needs
About the Author
Anil Changaroth, a Mediator, Adjudicator and Arbitrator, is an

Advocate & Solicitor of Singapore (since 1995). He qualified
as a barrister of England and Wales in 1993 and a solicitor
of England and Wales in 2009, apart from being trained in
International Treaty Arbitration. He holds a Master of Science
in Construction Law and Arbitration awarded jointly by King’s
College London and the National University of Singapore.
Anil is Managing Director and General Counsel of ChangAroth

Chambers LLC and ChangAroth International Consultancy.
The Chambers is part of the pioneer batch of legal practices
on the Singapore Academy of Law’s Future Law Innovation
Programme (FLIP) and is recognised as the Law Society of
Singapore’s SmartLaw (legal technology) practice. It primarily
focuses on Building, Construction and Infrastructure work and
most aspects of Commercial, Civil, Criminal and Corporate
front end advisory work and Appropriate Dispute Resolution
services representing parties in Singapore and the region. He
is also conversant in Mandarin, Malay, Malayalam and Tamil,
besides English.
Anil, a fellow of the Chartered, Singapore and Philippines

Institute of Arbitrators and the Asian Institute of Alternative
Dispute Resolution and trained in International Investment
Treaty Arbitration at the Asia International Arbitration Centre
(AIAC), has practiced with the international arbitration practice
group of Lovells Lee & Lee. He was also General Counsel and
Director of the Contract Advisory and Dispute Management
division of Davis Langdon & Seah (now part of Arcadis
Group). He also sits on the Board of the Singapore Indian
Chamber of Commerce and Industry and Council of the Society
of Construction Law Singapore and is honorary advisor to
construction industry related institutions.
Anil’s practice has over the years developed to deal with more
of the appropriate DR mechanisms, including as Mediator and
Arbitrator, and has for over 23 years served in the constituency
of the Honourable Deputy Prime Minister Tharman
Shanmugaratnam with pro bono legal services.
ChangAroth InterNational Consultancy was incorporated

in Singapore in 2017, and is setting up collaborations with
practices in Australia, Bangladesh, Indonesia, India, Mauritius,
Philippines and Sri Lanka, to facilitate Singapore’s Infrastructure
Asia initiative, the Singapore Convention on Mediation and
China’s Belt & Road initiative, and consult on international
trade, investment treaty, construction and infrastructure
projects, Appropriate Dispute Resolution and developing legal
technologies.

Resolving Disputes

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Resolving Disputes

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Anil Changaroth

Each dispute resolution mechanism is clearly

The international perspectives of ADR are also

Resolving Disputes cover.indd 1 22/3/19 2:52 PM

Published by Marshall Cavendish Editions

All rights reserved

No part of this publication may be reproduced, stored in a retrieval system or

The publisher makes no representation or warranties with respect to the contents

Other Marshall Cavendish Offices: Marshall Cavendish Corporation. 99 White

Marshall Cavendish is a registered trademark of Times Publishing Limited

National Library Board, Singapore Cataloguing-in-Publication Data

Names: Changaroth, Anil.

Concluding Remarks 141

To my community in the Taman Jurong constituency (including

To my family, my best half Shyamala (with her literary approach

readers, who are constantly amused at how I am not able to read

And to my team at ChangAroth Chambers LLC – my associate Syafiq

Jai Shree Hanuman

Our everyday interactions with a whole host of people often

The Abraham Lincoln (16th President of the United States)

With a clearer understanding of the basic dispute resolution

The author, in this guidebook, refers to these mechanisms as

The speed, efficiency, and binding nature (often so agreed upon)

Understanding Basic Terms

“Appropriate” refers to as what is considered the most suitable

“Claim” refers to stating or asserting the case that one raises,

“Demand” refers to formally raising a claim alleging legal

“Dispute” refers to the disagreements that naturally arise out of

“Resolution” refers to the logical conclusion where a solution

“Suing” refers to commencing or instituting formal proceedings

ADR processes are generally far less adversarial than litigation

The appropriate mechanisms considered in this guidebook are

Dispute Resolution Processes

As disputes are often not straightforward, these two processes

Due consideration must, however, be given to the risks involved

Multi-tier Dispute Resolution

Relevant Considerations for Choosing a Mechanism

For example, in a construction contract where disputes arise

Dispute Resolution Forums

(1) Community Disputes Resolution Tribunal (“CDRT”)1

(2) Community Justice Centre (“CJC”)3

(3) Community Mediation Centre (“CMC”)4

(4) Employment Claims Tribunal (“ECT”)6

(5) Family Justice Courts (“FCJ”)8

(6) Small Claims Tribunal (“SCT”)10

(7) State Courts Centre for Dispute Resolution (“SCCDR”)11

(8) Singapore International Arbitration Centre (“SIAC”)12

(9) Singapore International Commercial Court (“SICC”)13

(10) Singapore International Mediation Centre (“SIMC”)14

(11) Singapore Mediation Centre(“SMC”)15

(12) State Courts of Singapore

(13) Supreme Court of Singapore

(14) Tripartite Alliance for Dispute Management16

employed persons manage payment-related disputes, amicably. It

General Overview of Negotiation

Negotiation can generally take place at any stage of parties’

In a commercial setting, negotiation is most effective between

of commercial pressures, bargaining and compromise driven by the

However, with a private dispute, detaching emotions from the

A negotiator’s skills will also affect how successful the negotiation

(1) Best Alternative to Negotiated Agreement (“BATNA”)

Whether one discloses one’s BATNA to the other side depends

(2) Worst Alternative to Negotiated Agreement (“WATNA”)

Knowing the other party’s WATNA and your own WATNA is