Chief Justice Sundaresh Menon: Speech to the Indonesian Judiciary on International Mediation and the Role of the Courts

SPEECH TO THE INDONESIAN JUDICIARY
“International Mediation and the Role of the Courts”

Tuesday, 7 November 2023

The Honourable the Chief Justice Sundaresh Menon*
Supreme Court of Singapore

Chief Justice Professor Dr Muhammad Syarifuddin
Vice Chief Justice for Judicial Matters, Dr Sunarto
Leadership of the Supreme Court of the Republic of Indonesia
Ladies and gentlemen

1.         A very good morning once again. Let me begin by thanking the Indonesian Supreme Court for inviting me to address you on the subject of international mediation. This is an area of growing importance and interest, and I am very pleased to have the opportunity to share my perspectives with you this morning.

2.         My thesis today can be summarised as follows. Mediation is a fundamental tool for the resolution of disputes because it advances two core ideals of our justice systems: namely, the rule of law and the maintenance of peace. In the international domain, mediation has shown immense potential in terms of advancing the amicable resolution of at least two main types of disputes: namely, international family disputes and international commercial disputes. Yet, the promise of international mediation can only be realised fully with the support of the courts. Our judiciaries have a central role to play in promoting international mediation, and in facilitating its integration into the wider system of transnational dispute resolution. I suggest that we should earnestly pursue this endeavour, because this will be vital to enhancing the appropriate and efficient settlement of disputes on the international plane.

3.         I will divide my remarks this morning into three main parts:

(a) First, I will provide an overview of the historical roots of mediation in our societies and its recent rise to prominence in formal dispute resolution. Next, I will address how mediation advances the rule of law and the preservation of peace, and I will illustrate these benefits by reference to the reforms that we in Singapore have implemented in the area of family justice.
(b) The second part of my speech will focus on international family justice. I will touch on the use and value of mediation in this context, and offer some suggestions about how our courts should try to foster and promote international family mediation.
(c) In the last part of my address, I will turn to international commercial mediation. I will explain the pressing need for this mechanism and the significance of the Singapore Convention on Mediation, before outlining the role of the courts in advancing international commercial mediation.

I. Mediation and the ideals of a justice system

4.         Let me start with an overview of the roots of mediation in our communities.  Historically, traditional forms of mediation have been prevalent in Asian societies. For example, in the early years of Singapore’s history, disputes between Chinese merchants were often mediated at Chinese clan associations. Similarly, Malay villagers would take disagreements to their headmen for amicable settlement, and Indian communities relied on panchayat (or community councils) to resolve disputes peacefully¹. Turning to Indonesia, commentators have suggested that mediation resembles long-established practices of musyawarah mufakat, under which disputing parties enter into negotiations, often facilitated by a community leader, to reach an acceptable outcome that preserves harmony².

5.         Yet, despite this long history of informal mediation, mediation did not play a significant role in formal dispute resolution in many Asian societies until quite recently. In Singapore, the rise of mediation in our legal system began in the mid-1990s, with the introduction of court-annexed mediation in 1994, the founding of the Singapore Mediation Centre (or “SMC”) in 1997, and the launch of Community Mediation Centres in 1998³. It is interesting to note that the rise of the mediation movement in Indonesia has been traced to roughly the same period, and it has been suggested that two key milestones in this journey were the passage of the law governing alternative dispute resolution in 1999, and the introduction of court-annexed mediation in 2003⁴.

6.         But why did mediation not play a more prominent role in our legal systems for so long, despite their historical affinity within our ethnic cultures? In relation to Singapore, several reasons have been identified including urbanisation which led to the dispersion of the traditional communities that practised mediation, and a growing awareness of legal rights that led more parties to litigate their disputes⁵. But beyond these factors, I suggest that mediation was for long absent from our modern legal systems which were shaped to a large extent by our colonial histories, because it was seen as alien or even antithetical to the ideals of those systems. In particular, mediation was seen as inconsistent with the rule of law, because the rule of law was viewed as inextricably linked to judicial adjudication and was understood to require the public determination of disputes in accordance with the parties’ legal rights⁶. Mediation, as a private form of dispute resolution that focuses on the parties’ interests, was therefore thought to be contrary to this fundamental ideal.

7.         I suggest that this view stems from an unduly narrow conception of the rule of law that is no longer apt today. In its place, we should adopt a broader vision of the rule of law that embraces adjudication, but at the same time, also places significant weight on the value of securing access to justice. If the rule of law is to capture the ideals of a legal system, then access to justice must be an integral part of that concept because the very point of a justice system is to deliver justice. Even the most principled and sophisticated legal system would be worthless if it cannot be reached. Indeed, I suggest that securing access to justice must be a key priority for judiciaries today because of the realities that confront those who seek to use our court systems. The spiralling cost of litigation, the limited amount of judicial resources, and the technical nature of legal procedures all combine to present formidable obstacles to litigants. It is therefore critical that we reimagine the rule of law to reflect the central importance of securing access to justice⁷.

8.         And once we adopt this broader conception of the rule of law, it becomes plain that mediation will play a vital role in helping us achieve that important ideal. First, mediation is a much more affordable and speedy mode of dispute resolution than litigation. For example, over 67% of cases filed at the SMC are settled, and more than 90% of these are resolved within just one day⁸. This underscores the potential of mediation to help parties secure remedies for their grievances in a cost-efficient and timely way. Second, mediation is far more intelligible and meaningful to its users than litigation, because it is relatively informal and untechnical, and the processes of mediation focus on the needs and interests of the parties rather than on legal concepts and doctrines that are often foreign to laypersons⁹. Mediation is an efficient and practical solution for many disputes, and it therefore promotes access to justice and the rule of law.

9.         And beyond this, I suggest that mediation serves a second core ideal of our legal systems: that is, the maintenance of peace. Some 45 years ago, Sir Jack Jacob, an eminent English lawyer, contended that the resolution of disputes was vital “to promote harmony and peace in society, lest they fester and breed discontent and disturbance”¹⁰. This captures a key insight into the function of the justice system. It plays a critical role in reducing conflict and maintaining harmony, thereby sustaining peace in our societies¹¹.

10.         Mediation is uniquely suited to advancing this peacebuilding role of our justice systems. First, unlike the adversarial and zero-sum nature of litigation, mediation focuses on achieving an amicable settlement that serves the interests of all parties. Hence, it is more likely to achieve an outcome that preserves the relationships between the parties. Second, because mediation is attuned to the needs and interests of the parties, it is more likely to get to the heart of a dispute. It can therefore yield a more holistic and enduring solution to the underlying sources of conflict, in comparison to adjudicative forms of dispute resolution.

11.         Let me illustrate these benefits of mediation by reference to the Singapore experience in family justice. Over the last few decades, mediation has become a key part of our family justice system. Our journey began in 1996, when voluntary court-annexed mediation was introduced for family justice. In 2011, the law was amended to require divorcing couples with minor children to undergo mediation. Then, in 2014, mandatory mediation was extended to all family cases involving children under 21 years old, and the court was empowered to direct parties at any time to undergo mediation¹². These developments culminated in 2020, when we adopted the philosophy of therapeutic justice as the guiding ethos for our family justice system. In essence, this calls for family justice to be holistic, in addressing both the legal issues between the parties and also their underlying non-legal causes; restorative, in helping to repair the relationships between parties; and forward-looking, in encouraging parties to focus on creating a mutually acceptable future together¹³. In a sense, therapeutic justice reflects the spirit of mediation, and our adoption of that ethos reflects the central place of mediation in our family justice system.

12.         Mediation has come to play this central role in family justice in Singapore because it has brought the two key advantages that I mentioned earlier.

(a) First, mediation has significantly enhanced access to justice in family disputes. Studies have found that more than 75% of the cases mediated by our family courts led to either a full or partial settlement¹⁴. This indicates that mediation has brought substantial time and costs savings for the parties involved in family proceedings, and this is also borne out in feedback from family court users who have lauded mediation as a cost-efficient and highly practical solution¹⁵.

(b) Second, mediation has made a crucial contribution to the promotion of peace in the family context. A recent study of almost 2,000 divorce cases in Singapore found that mediated cases involving children were substantially less likely to be relitigated than cases resolved through litigation or even negotiations; and significantly, this finding held true for up to three years after the original dispute was first determined¹⁶. This suggests that mediation has made a real difference to preserving ties and minimising conflict between the parties to family proceedings.

13.         In sum, mediation is an essential and invaluable tool for dispute resolution because it advances the rule of law, by enhancing access to justice, and the peacebuilding function of our justice systems. Notably, these benefits are as salient to international disputes as they are to domestic disputes, which suggests that mediation should also play a central role in the resolution of transnational disputes. That brings me to international mediation, the value it can offer, and the role of the courts in supporting this mechanism.

II. International family mediation

A. The value of international family mediation

14.         I turn first to international family mediation. Let me begin by explaining the need for this tool. The explosion of globalisation over the last few decades has accelerated the movement of people across national borders. This has led to a steady rise in the number of international families,¹⁷ which has been accompanied by a sharp increase in troubled marriages involving spouses of different nationalities¹⁸. The result has been a proliferation of cross-border family disputes such as disputes involving international child abduction and international relocation. These disputes are often complex and challenging, especially when children are involved, because of the binary decisions that are often required and the profound implications of such decisions for the parties and their children¹⁹.

15.         Historically, it was thought that mediation had little part to play in cross-border family disputes²⁰. There were doubts about how mediation would cohere with legal frameworks like the Child Abduction Convention²¹ ,²² and practical concerns such as the challenges of mediating disputes that would often involve parties of different nationalities, cultures and first languages.

16.         But over the last 20 years, international family mediation has proven to be a highly effective tool for international family disputes. Studies have found that mediation has played a critical role in containing such disputes and helping to preserve familial ties. For example, a 2006 study found that 75% of mediations in cases of international child abduction conducted by Reunite, a United Kingdom charity, led to an agreement between the parents that generally resulted in a consent court order concerning the child’s residence²³. And a follow-up study in 2012 found that in cases where a post-mediation consent order had been made, the parties generally avoided further litigation, and both parents typically kept on positive terms with their children ²⁴. These findings underscore the two main benefits of mediation that I spoke of earlier: namely, its vast potential to enhance access to justice, by enabling disputes to be resolved in an efficient and flexible way, and the major contribution that it can make to the promotion of peace.

17.         At the same time, it has fairly been noted that mediation should not be seen as a substitute for legal regimes like the Child Abduction Convention and litigation under those regimes. Rather, the value of mediation lies in offering a powerful source of support to the legal frameworks and court processes by providing a platform for parents to step back from acrimonious litigation, to consider the best interests of their children and endeavour to re-establish the ability to co-parent together ²⁵. This suggests a need to establish and enhance linkages between international family mediation and other modes of dispute resolution, to advance the integration of mediation into the broader system of transnational family justice.

B. The role of the courts

18.         That brings me to the role of the courts. I suggest that our courts can support international family mediation in both the judicial and also the extra-judicial settings.

19.         In the judicial setting, the courts can divert appropriate cases to international family mediation and develop the related practice directions or guidance that would facilitate this. Thus, our Family Justice Courts have issued a Practice Direction providing for the court, in appropriate cases, to refer international child abduction disputes to private mediation providers like the SMC²⁶. Similarly, the President of the Family Division of the High Court of England and Wales has issued Practice Guidance on the mediation of international child abduction cases (which I will refer to as the “Family Division Practice Guidance”)²⁷.  Such protocols can promote international family mediation in at least three ways.

(a) First, they raise awareness of the nature of international family mediation. This is useful because the parties and their lawyers might not otherwise be familiar with this mechanism. Among other issues, practice guidance can identify the relevant mediation service providers and clarify the process of mediation.

(b) Second, court protocols on international family mediation can help to enhance the credibility of such procedures by giving the stamp of judicial approval to these mechanisms²⁸.

(c) Third, and crucially, court guidance can clarify the interface between the mediation and litigation processes which will often run in parallel. For example, the Family Division Practice Guidance provides that the court may make directions on a timetable for the mediation, to ensure that it concludes within the expedited timelines for international child abduction proceedings. It also provides for the court to direct, in appropriate cases, that the child be interviewed for the purpose of the mediation²⁹. Such protocols play a critical part in ensuring that mediation and litigation operate seamlessly, to secure the coherent and efficient resolution of the dispute.

20.         Turning to the extra-judicial setting, family courts can advance international family mediation in at least two main ways:

(a) First, our courts can collaborate to develop agreed instruments to enhance and strengthen international family mediation. Let me highlight the work of the Council of ASEAN Chief Justices Working Group on Cross-Border Disputes Involving Children, which has made substantial progress on this front. In 2021, the Working Group adopted a non-binding protocol. This provides for communication between points of liaison to arrange the mediation of such disputes where cross-border disputes involving children arise within ASEAN. The points of liaison may ascertain whether the parties will agree to mediation and if so, they will facilitate arrangements for mediation³⁰. Such instruments can greatly facilitate the smooth conduct of international family mediation. The Working Group has also issued a non-binding Code of Ethics for mediators, which sets out the aspired values and minimum standards for mediations of cross-border disputes involving children within ASEAN³¹.This will help advance the ongoing project of articulating the key principles and best practices for international family mediation, which is essential to secure the quality and legitimacy of this mechanism.

(b) Second, our courts can collaborate with mediation organisations to help deliver relevant training to family mediators. Our Family Justice Courts have collaborated with the Law Society of Singapore, the SMC and the MiKK International Mediation Centre for Family Conflict and Child Abduction, a leading international family mediation provider, to deliver training in cross-border family mediation to SMC family mediators.

21.         In these ways, our courts can both foster international family mediation and advance its integration into the broader system of transnational family justice. And I suggest that our courts should play a similar role in supporting international commercial mediation. That brings me to the third and final part of my address.

III. International commercial mediation

A. The need for international commercial mediation

22.         Let me set the stage by explaining the need for international commercial mediation. Today, arbitration and litigation remain the predominant mechanisms for the resolution of international commercial disputes. But I suggest that it is time for international commercial mediation to come to the fore, given the challenges that plague adjudicative modes of dispute resolution and the inherent suitability of mediation for certain types of commercial disputes.

23.         International commercial arbitration and litigation face several significant problems. The most prominent issue is the escalating cost and time associated with these mechanisms³². Multiple studies have found that cost is the worst trait of international arbitration³³, with costs awards in the largest cases often exceeding US$10 million³⁴.  This can also be true of major transnational litigation. For example, the costs of litigation incurred by Fortune 500 corporations have been estimated at as much as one-third of their after-tax profits³⁵. And apart from cost, lack of speed is a critical challenge. According to Professor Gary Born, a leading arbitrator, it can take 18 to 36 months for a final award to be issued in a major international commercial arbitration³⁶, and such disputes often take a similar length of time to be resolved through litigation.

24.         The costs and delays entailed by arbitration and litigation are now being compounded by a deeper problem. This is what I have referred to as the complexification of disputes³⁷. This refers to the growing complexity of disputes, which has two aspects. The first is technical complexity, which refers to the increasingly technical nature of the evidence and issues that arise in disputes. This flows from advances in science and technology, which are increasing the number and the sophistication of technical concepts and methods in every field, and thus also the intricacy and the range of the technical issues that are placed before adjudicators³⁸.  Then there is evidential complexity, which has risen dramatically because of the widespread use of technology, and the consequent explosion in the amount of data and documents that are created, stored, and then adduced as evidence³⁹.

25.         The rise of complexification has serious implications for the adjudication of international commercial disputes. At the first level, it suggests that international commercial arbitration and litigation will become increasingly expensive and protracted, unless new and innovative measures are introduced to contain and downsize disputes⁴⁰.  But complexification also threatens the quality of adjudicative decisions because there is simply a limit to how much information anyone can process. And more broadly, the increasing number of complex cases places an increasingly unsustainable burden on adjudicative systems, because they take up a disproportionate share of limited adjudicative resources.

26.         In contrast to arbitration and litigation, international commercial mediation is a much more affordable and a much speedier mode of dispute resolution. It is also less plagued by the problem of complexification, since it does not require an exhaustive search for the truth and the painstaking determination of the parties’ rights. For these reasons, international commercial mediation is a highly accessible tool for the resolution of cross-border commercial disputes.

27.         It is also a particularly suitable tool for resolving certain types of commercial disputes. It is especially appropriate where there is a vital need to preserve the relationship between the parties and where a binary outcome is inappropriate. Take, for example, disputes arising between the owner and the main contractor during a complex construction project. In such a setting, it will be crucial to sustain the relationships between the parties to ensure the successful completion of the project. Further, a win-loss result may be unsuitable for certain disputes that arise from unforeseen events such as the outbreak of a pandemic⁴¹. Mediation is the ideal mode of dispute resolution for these kinds of disputes because, as I noted earlier, it strives to achieve an amicable resolution that preserves the bonds between the parties, and focuses on advancing their shared interests rather than on their strict legal rights⁴².

B. The role of the Singapore Convention

28.         International commercial mediation is therefore an invaluable tool for the resolution of international commercial disputes. So, why has mediation stood in the shadow of arbitration and litigation for so long? There are several reasons for this, but one factor stands out: the lack of enforcement mechanisms that apply to settlement agreements arising from international commercial mediation⁴³. In a 2014 survey conducted by the International Mediation Institute, over 90% of respondents identified the absence of an international enforcement mechanism for mediated settlements to be an impediment to international mediation.  Similarly, a 2019 study commissioned by the Singapore Academy of Law found that just 5% of respondents considered mediation to be their preferred means of resolving international commercial disputes, with enforceability being the key factor in their choice of a dispute resolution mechanism⁴⁴.

29.         Notably, similar concerns of enforceability had once plagued international commercial arbitration. But these concerns have long since faded away due to the almost universal adoption of the New York Convention⁴⁵. The success of that instrument shows that a multilateral enforcement regime can decisively resolve issues of enforceability. And that is why I believe that the Singapore Convention on Mediation, which was modelled on the New York Convention, is a watershed in the development of international commercial mediation⁴⁶.

30.         Let me briefly summarise the framework of the Singapore Convention. The Convention governs settlement agreements that result from the mediation of a commercial dispute, and which are international in nature based on the place of business of the parties or the content of the settlement agreement⁴⁷. It establishes an enforcement regime that is founded on two main provisions.

(a) First, Article 3 imposes a duty on all Parties to the Convention to enforce international commercial mediated settlement agreements, and also to grant preclusive effect to such agreements⁴⁸. In other words, it enables such agreements to be used both as a “sword”, to secure compliance with the agreed obligations, and as a “shield”, to bar the relitigation of matters settled under the agreement⁴⁹.

(b) The second key provision is Article 5. This sets out an exhaustive and limited set of grounds on which parties may challenge the enforcement of settlement agreements that fall within the scope of the Convention. Many of these grounds mirror those in the New York Convention, including grounds based on the incapacity of a party, the nullity and inoperability of a settlement agreement and the public policy of the State in which enforcement is sought⁵⁰. But there are also grounds specific to mediation. For example, enforcement may be refused if the obligations in a settlement agreement are “not clear or comprehensible”⁵¹, or if the mediator committed a serious breach of mediation standards, but for which the resisting party would not have entered into the agreement⁵².

31.         In sum, the Singapore Convention establishes a carefully calibrated regime for the enforcement of international commercial mediated settlement agreements. It will now fall on enforcement courts to develop and uphold this framework, and I will come back to this point in a moment.

32.         Apart from tackling the issue of enforceability, the Singapore Convention has also enhanced the credibility of international commercial mediation. For many years, mediation was hampered by the absence of a multilateral treaty that could serve as a “trust mark of legitimacy” for parties contemplating mediation⁵³. The Singapore Convention is likely to have a “halo effect” in promoting the legitimacy of international commercial mediation and mediation more broadly⁵⁴.

C. The role of the courts

33.         For these reasons, the future of international commercial mediation looks bright. But I suggest that it will only thrive if it is supported by other institutions of the transnational system of commercial justice (or “TSCJ”), and is well-integrated into that system. The success of international commercial mediation will turn on the appropriate application and development of the enforcement regime under the Singapore Convention by the courts, and on other dispute resolution bodies coming to see mediation not as a competitor but as a partner in the resolution of international commercial disputes. It is therefore vital that other stakeholders of the TSCJ come together to support and sustain international commercial mediation. In this context, commercial courts have a key role because they are the superintendents of the TSCJ who oversee and steer the development of the system⁵⁵. Let me outline three ways in which the courts can promote international commercial mediation.

34.         First, commercial courts will develop the law and principles governing the practice of international commercial mediation. In particular, in deciding disputes over the grounds related to mediator conduct in Article 5 of the Singapore Convention, the courts will concretise and shape mediation standards⁵⁶. In this context, the courts can help the development of international commercial mediation by articulating principles that are sensitive to the nuances of contemporary mediation practice, and that also reflect core ideals such as confidentiality and independence. And apart from mediation standards, the courts can also promote the enforcement regime under the Singapore Convention by interpreting the other grounds in Article 5 appropriately. For example, it has been suggested that the concept of the obligations in a settlement agreement being “not clear or comprehensible” should be interpreted narrowly, to reduce the risk of abuse by those seeking to resist enforcement⁵⁷.

35.         Second, commercial courts can promote linkages between international commercial mediation and litigation by working with mediation bodies to develop composite dispute resolution models. For example, in January this year, the Singapore International Commercial Court (or “SICC”) and the Singapore International Mediation Centre (or “SIMC”) launched a Litigation-Mediation-Litigation Protocol. Under this protocol, proceedings filed in the SICC may be referred to mediation at the SIMC. The SICC will support such mediation by granting a case management stay of the proceedings. Further, if the mediation succeeds, the SICC can record the terms of the settlement as an order of court to facilitate its enforcement. This is a prime example of how the courts can promote international commercial mediation by integrating it with other arms of the TSCJ.

36.         Third, commercial courts can drive dialogue between providers of international commercial mediation and other dispute resolution bodies. For example, the Standing International Forum of Commercial Courts (or “SIFoCC”) in vited leading arbitrators and mediators to attend and contribute to its fourth full meeting last year. At that meeting, we discussed important issues such as the complexification of disputes, and how to foster the integration of the TSCJ⁵⁸. Such dialogue can advance international commercial mediation by raising awareness of its nuances among judges and arbitrators, and by generating ideas about how different dispute resolution bodies can collaborate to address common challenges and so advance the coherent and efficient operation of the TSCJ.

IV. Conclusion

37.         International mediation has had a long and somewhat vexed gestation. But it has overcome various doubts and difficulties, and has now emerged as an essential tool for the resolution of cross-border disputes. It is now incumbent on our courts to usher in this fast-developing mechanism, and to integrate it into the broader frameworks of transnational dispute resolution, so that we may advance the fundamental ideals of our justice systems. We, in Singapore, look forward to working with you, our dear friends in Indonesia, in this quest.

38. Thank you very much.

<sup>*I am deeply grateful to my colleagues, Assistant Registrars Tan Ee Kuan and Wee Yen Jean, for all their assistance in the research for and preparation of this address.

(1) Laurence Boulle and Teh Hwee Hwee, Mediation – Principles, Process and Practice (Butterworths Asia, 2000) at p 191; Yong Pung How CJ, “Launch of ‘DisputeManager.com’” (31 July 2002), in Speeches and Judgments of Chief Justice Yong Pung How, Vol I: Speeches (SNP International Publishing, 2006) (“Yong”) at pp 476–477.</sup>

^{(2) Fatahillah Abdul Syukur and Dale Margaret Bagshaw, “Court-Annexed Mediation in Indonesia: Does Culture Matter?” (2013) 30(3) Conflict Resolution Quarterly 369 at 369–370 and 373–374; Christopher Moore and Mas Achmad Santosa, “Developing Appropriate Environmental Conflict Management Procedures in Indonesia” (1995) 19(3) Cultural Survival Quarterly 23.}

^{(3) George Lim SC and Eunice Chua, “Development of Mediation in Singapore” in Mediation in Singapore: A Practical Guide (Sweet & Maxwell, 2nd Ed, 2017) (“Mediation in Singapore”) ch 1 at para [1.008].}

^{(4) Fatahillah Abdul Syukur and Dale Bagshaw, "Gender, power, and court-annexed mediation in Indonesia” (2020) 37(4) Conflict Resolution Quarterly 277 at 278; Sonal Okhade and Carol (Xinyu) Liu, "Mediation Developments in Indonesia", Australian Disputes Centre: https://disputescentre.com.au/mediation-developments-in-indonesia/.}

^{(5) Yong at p 477.}

^{(6) See, eg, Hazel Genn, “Why the Privatisation of Civil Justice is a Rule of Law Issue” (36th F A Mann Lecture, Lincoln’s Inn, 19 November 2012) at pp 15–20.}

^{(7) Sundaresh Menon CJ, “Mediation and the Rule of Law”, Keynote Address at the Law Society Mediation Forum (10 March 2017) (“Mediation and the Rule of Law”) at paras 12–15; Sundaresh Menon CJ, “The Singapore Convention on Mediation & The Coming of a New Age”, Address at the Supreme People’s Court of Vietnam Workshop on Mediation (17 September 2019) (“The Singapore Convention & The Coming of a New Age”) at para 19.}

^{(8) Singapore Mediation Centre, “About SMC”: https://www.mediation.com.sg/about-us/about-smc/.}

^{(9) Mediation and the Rule of Law at paras 17 and 20–21.}

^{(10) Sir Jack Jacob, “Access to justice in England’ in Access to Justice Vol I: A World Survey (M Cappelletti and B Garth eds) (1978) at p 417.}

^{(11) Sundaresh Menon CJ, “Technology and the Changing Face of Justice”, Address at the Negotiation and Conflict Management Group ADR Conference 2019 (14 November 2019) at paras 50, 52 and 58.}

^{(12) Kevin Ng, Yarni Loi, Sophia Ang and Sylvia Tan, “Family Justice Courts – Innovations, Initiatives and Programmes” (2018) 30 SAcLJ 617 at paras 9, 16 and 36.}

^{(13) Sundaresh Menon CJ, “From Family Law to Family Justice”, Keynote Address at the Law Society Family Conference 2020 (14 September 2020) at para 33.}

^{(14) Kevin Ng, “Family Mediation: The Perspective of the Family Justice Courts” in Mediation in Singapore ch 13 (“Ng”) at para [13.107].}

^{(15) Ng at para [13.108]}

^{(16) Dorcas Quek Anderson, Eunice Chua and Yilin Ning, “To negotiate, mediate or litigate? Examining the durability of divorce outcomes in the Singapore family courts” (2022) 60(3) Family Court Review 434.}

^{(17) For instance, in Singapore, the proportion of marriages between a citizen and a non-resident grew from 23% in 2003to 33% in 2022: see Laura Elizabeth Philomin, “New moves to smooth way for transnational marriages here”, Today (25 October 2014) and National Population and Talent Division, Population Trends – People & Society: https://www.population.gov.sg/our-population/population-trends/people-&-society.}

^{(18) For instance, between 2011 and 2018, the proportion of divorces in Singapore involving at least one spouse who was not a Singapore citizen increased from 33% to 41%: see Debbie Ong J, “Supporting, healing and reconstructing”, Keynote Address at the Family Conference 2019 (3 July 2019) at para 12.}

^{(19) Sundaresh Menon CJ, “International Family Justice as Collaborative Justice”, Paper delivered at the 18th Conference of Chief Justices of Asia and the Pacific (17 November 2022) at paras 15 and 19.}

^{(20) Sir Mathew Thorpe, “Mediation to Resolve Child Abduction Issues for Hague and Non-Hague Convention Countries” (2018) 30 SAcLJ 575 (“Thorpe”) at paras 2–3.}

^{(21) Convention on the Civil Aspects of International Child Abduction (25 October 1980, entered into force on 1 December 1983).}

^{(22) For example, it was unclear whether the mediation should focus solely on whether the child should be returned to the country of residence, or whether it should also address the broader dispute between the parents. There were also practical concerns including whether mediation would undermine the general six-week timeframe for the determination of applications for the return of a child under the Child Abduction Convention: see Thorpe at para 2.}

^{(23) Thorpe at para 3; Trevor Buck, “An Evaluation of the Long-Term Effectiveness of Mediation in Cases of International Parental Child Abduction” (2012, Reunite International Child Abduction Centre) (“Buck”) at para 3.1.}

^{(24) Buck at paras 8.1.3, 9.1.1, 11.1.1 and 11.2.1.}

^{(25) Sandra Fenn, Anne-Marie Hutchinson, and Angela Lake-Carroll, “Mediation in children’s cases with a cross-border element – in particular, international child abduction, leave to remove and international contact” in Family Mediation: Contemporary Issues (Bloomsbury Professional, 2020) ch 11 at p 210.}

^{(26) Family Justice Courts Practice Directions at paras 11(2A) and 11(3).}

^{(27) President of the Family Division, “Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings” (1 March 2023) (“Family Division Practice Guidance”) at paras 1.5, 2.9(a), 3.1–3.3 and Appendix 1.}

^{(28) Thorpe at para 35.}

^{(29) Family Division Practice Guidance, Appendix 1, paras 17–18.}

^{(30) Council of ASEAN Chief Justices, “Proposed Common Procedure for Dealing with Cross-Border Disputes Involving Children within ASEAN” (2021): https://www.cacj-ajp.org/web/wp-content/uploads/2022/10/Enhanced-Common-Procedure-CBDIC-WG.pdf.}

^{(31) Council of ASEAN Chief Justices, “Code of Ethics for Mediators in Cross-Border Disputes involving Children within ASEAN” (2021): https://www.cacj-ajp.org/web/wp-content/uploads/2022/10/Code-of-Ethics-for-Mediation-CBDIC-WG.pdf.}

^{(32) Sundaresh Menon CJ, “Mediation: At the Dawn of a Golden Age”, Address at the Samadhan National Conference 2023 (15 April 2023) (“Mediation: At the Dawn of a Golden Age”) at para 5.}

^{(33) See, eg, Queen Mary University of London & White & Case, “2018 International Arbitration Survey: The Evolution of International Arbitration” (2018) at p 8.}

^{(34) Joseph R Profaizer, Igor V Timofeyev and Adam J Weiss, “Costs”, Global Arbitration Review (19 December 2022): https://globalarbitrationreview.com/guide/the-guide-damages-in-international-arbitration/5th-edition/article/costs.}

^{(35) John B Henry, “Fortune 500: The Total Cost Of Litigation Estimated At One-Third Profits”, Corporate Counsel Business Journal (1 February 2008): https://ccbjournal.com/articles/fortune-500-total-cost-litigation-estimated-one-third-profits.}

^{(36) Gary Born, International Arbitration: Law and Practice (Kluwer Law International, 3rd Ed, 2021) at p 9.}

^{(37) Sundaresh Menon CJ, “The Complexification of Disputes in the Digital Age”, Goff Lecture 2021 (9 November 2021) (“The Complexification of Disputes”).}

^{(38) The Complexification of Disputes at paras 8–15.}

^{(39) The Complexification of Disputes at paras 16–22.}

^{(40) The Complexification of Disputes at paras 53–62.}

^{(41) Sundaresh Menon CJ, “Constructing Collaboration: Remoulding the Resolution of Construction Disputes”, Keynote Address at the 9th Annual Conference of the International Academy of Construction Lawyers (14 April 2023) at paras 3(a), 15 and 16.}

^{(42) See paragraph 10 above.}

^{(43) International Mediation Institute, “IMI survey results overview: How Users View the Proposal for a UN Convention on the Enforcement of Mediated Settlements” (16 January 2017): https://imimediation.org/2017/01/16/users-view-proposal-un-convention-enforcement-mediated-settlements/.}

^{(44) Singapore Academy of Law and Ipsos, “2019 Study on Governing Law & Jurisdictional Choices in Cross-Border Transactions” : https://www.sal.org.sg/sites/default/files/PDF%20Files/Newsroom/News_Release_PSL%20Survey_2019_Appendix_A.pdf at p 3.}

^{(45) Mediation: At the Dawn of a Golden Age at para 23.}

^{(46) The Singapore Convention & The Coming of a New Age at para 2.}

^{(47) United Nations Convention on International Settlement Agreements Resulting from Mediation (20 December 2018, entered into force on 12 September 2020) (“Singapore Convention”), Art 1: A settlement agreement is “international” if (a) at least two parties to the agreement have their places of business in different states, or (b) the parties’ places of business is in a different state from the state in which a substantial part of the obligations under the settlement agreement is performed, or the state with which the subject matter of the settlement agreement is most closely connected.}

^{(48) Singapore Convention, Art 3(1) and Art 3(2).}

^{(49) Timothy Schnabel, “Recognition By Any Other Name: Article 3 of the Singapore Convention on Mediation” (2019) 20(4) Cardozo Journal of Conflict Resolution 1181 at 1185}

^{(50) Singapore Convention, Arts 5(1)(a), 5(1)(b)(i) and 5(2)(a).}

^{(51) Singapore Convention, Article 5(1)(c)(ii).}

^{(52) Singapore Convention, Article 5(1)(e).}

^{(53) Nadja Alexander, Shouyu Chong and Vakhtang Giorgadze, The Singapore Convention on Mediation: A Commentary (Kluwer Law International, 2nd Ed, 2022) at p 13.}

^{(54) Mediation: At the Dawn of a Golden Age at para 28.}

^{(55) Sundaresh Menon CJ, “The Transnational System of Commercial Justice and the Place of International Commercial Courts”, Lecture in Bahrain (9 May 2023) at paras 29–47.}

^{(56) Mediation: At the Dawn of a Golden Age at para 36.}

^{(57) Hal Abramson, “New Singapore Convention on Cross-Border Mediated Settlements: Key Choices” in Mediation in International Commercial and Investment Disputes (Catharine Titi and Katia Fach Gómez eds) (Oxford University Press, 2019) ch 19 at pp 371–372.}

^{(58) SIFoCC, “Report of the fourth full meeting” (October 2022) at pp 30–36.}