A REVIEW OF EMERGING THEMES IN ADR (2023 VERSION)
Appropriate Dispute Resolution and the Role of the Courts
1 September 2023
Justice Andre Maniam
Supreme Court of Singapore
Senior Parliamentary Secretary for Law and Health, Rahayu Mahzam
Representatives of the International Bar Association, organisers, speakers, delegates
Ladies and gentlemen
1. A very good morning to you all, and happy Polling Day!
2. Thank you for the opportunity to share my thoughts on Appropriate Dispute Resolution and the role of the courts.
3. I will address the role of the courts in steering the direction of dispute resolution, including the need to reshape the current framework, conflict prevention, and collaborative and non-adversarial resolution of disputes.
4. I will first discuss the concept of Appropriate Dispute Resolution, before turning to the role of the courts in relation to litigation, arbitration, and ADR (by which I mean, alternative dispute resolution – modes other than litigation and arbitration – modes such as mediation, neutral evaluation, expert determination, and conciliation).
A. Appropriate Dispute Resolution
5. The concept of Appropriate Dispute Resolution is not a new one. Indeed, I suggest that ever since there has been litigation in court, man has known of alternative ways of resolving disputes.
6. To take an example from popular culture, the “Ten Duel Commandments” in the musical Hamilton (about duels with pistols) included:
Have your seconds meet face to face
Negotiate a peace
Or negotiate a time and place
This is commonplace, ‘specially ‘tween recruits
Most disputes die and no one shoots.
Your last chance to negotiate
Send in your seconds
See if they can set the record straight.
9. I also highlight the Queen Mary Arbitration Survey 2021 which had London retaining its place at the top of the list of preferred seats, but for the first time this honour was shared with Singapore – a source of much pride.
10. I draw your attention however to another aspect of the same survey: 31% of survey respondents gave as their preferred method of resolving cross-border disputes, international arbitration (on a stand-alone basis), but 59% said their preferred method would be international arbitration together with ADR (ie, alternative dispute resolution). Thus, 90% of survey respondents said their preferred method of resolving cross-border disputes would include international arbitration, but most of them preferred arbitration together with ADR, rather than stand-alone arbitration.
11. A review of the same survey over the years shows the “arbitration plus ADR” option gaining in popularity, having been chosen by 34% of respondents in 2015, 49% in 2018, and 59% in 2021.
12. To that, I add an observation from the Singapore International Dispute Resolution Academy’s 2022 survey that many parties who pursue mixed-mode or tiered dispute resolution over stand-alone arbitration, are guided by concerns with preserving relationships, cost, and speed.
13. What then is Appropriate Dispute Resolution? It is a concept that recognises that the appropriate mode of resolving a dispute may vary between case to case, and it may even vary between phases or aspects of one case.
14. Adherence to one mode of dispute resolution, on a one-size-fits-all basis, is not appropriate now, and it is certainly not the way of the future.
15. In this regard, besides litigation and arbitration which are adversarial and result in a binding win-lose outcome, there are ADR options: not only mediation (for which Singapore championed the Singapore Convention), but also neutral evaluation, expert determination, and conciliation. There are also recognized ways of combining mediation and arbitration, such as Med-Arb, Arb-Med, and Arb-Med-Arb.
16. What then is the role of the courts in relation to arbitration or ADR? When the parties have chosen a mode chosen other than litigation, there may yet need to be recourse to the courts: to enforce the parties’ agreement regarding the mode they have chosen, to support the process by interim measures, to enforce the outcome reached, and so on.
17. Litigation itself remains an important mode of dispute resolution. In the first place there might be no agreement between the parties pursuant to which they could go to arbitration or ADR.
18. The Singapore courts have embraced the concept of Appropriate Dispute Resolution. The courts certainly do not regard litigation as the best choice in all instances.
19. For instance, in HSBC Institutional Trust Services (Singapore) Ltd (trustee of Starhill Global Real Estate Investment Trust) v Toshin Development Singapore Pte Ltd  4 SLR 738 (“Toshin”) the Singapore Court of Appeal commented (at ) that “…the Parties’ dispute is a matter that ought to have been resolved by the application of commercial common sense in good faith through the mediation process, rather than through the adversarial curial process. Regrettably, each of the Parties has, in no small measure, contributed to this unhappy situation that has unnecessarily jeopardised a long-standing commercial relationship.”
20. The court concluded at  that “in the light of the questionable conduct of both of the Parties that has in turn stoked sterile litigation, we order that each of the Parties is to bear its own costs”.
B. The Courts and Litigation
21. Singapore has introduced new rules of court, which came into force on 1 April 2022, which are simpler and shorter; they aim to modernize the litigation process, enhancing efficiency and speed of adjudication.
22. Order 3 of the Rules sets out five Ideals which the Rules seek to achieve. The court will seek to achieve those Ideals in all its orders or directions, and all parties have the duty to assist the court and to conduct their cases in a manner which will help to achieve the Ideals. Those Ideals are:
(a) fair access to justice;
(b) expeditious proceedings;
(c) cost-effective work proportionate to –
(i) the nature and importance of the action;
(ii) the complexity of the claim as well as the difficulty or novelty of the issues and questions it raises; and
(iii) the amount or value of the claim;
(d) efficient use of court resources;
(e) fair and practical results suited to the needs of the parties.
(1) dismissing the action if no party attends the case conference or if the claimant is absent (Order 2 rule 6(2));
(2) dismissing the action if the claimant has not served the originating claim or originating action on the defendant, and the court is not satisfied that the claimant has taken reasonable steps to effect service expeditiously; and
(3) if the defendant is absent, giving judgment for the claimant if the claimant proves that the originating claim or originating application has been served on the defendant.
(1) there was first an ADR clause which stipulated:
1. “the parties shall endeavor to resolve the dispute through negotiations”;
2. “if negotiations fails, the parties shall refer the dispute for mediation”;
3. “for the avoidance of doubt, prior reference of the dispute to mediation…shall not be a condition precedent for its reference to arbitration…nor shall it affect either party’s rights to refer the dispute to arbitration under [the arbitration clause]”;
(2) there was then an arbitration clause that provided that disputes “not resolved by the parties in accordance with [the ADR clause]…shall [be referred] for arbitration”.41. One of the parties referred the dispute to arbitration without referring it to mediation. The other party sought an order to compel reference of the dispute to mediation.
(1) First, “the mediation process would have provided both parties with the opportunity to resolve the dispute without incurring further legal costs or substantial delay.”
(2) Second, as emphasised by the Court of Appeal in Toshin at : “[t]he choice made by contracting parties, especially when they are commercial entities, on how they want to resolve potential differences between them should be respected”.
(3) Third, the trend towards the promotion of amicable dispute resolution. The Court of Appeal in Toshin noted at  that … “negotiate in good faith” agreements do serve a useful commercial purpose in seeking to promote consensus and conciliation in lieu of adversarial dispute resolution. These are values that our legal system should promote.” We now have new Rules of Court with a rule on amicable dispute resolution, and ordering specific performance would be consistent with that trend towards and preference for amicable dispute resolution.
(1) Summary of reasons: The affidavit in support of the arbitration Originating Application must include a short summary of the applicant’s reasons why grounds in support of the application are established. This focuses the applicant’s attention on the grounds of his application at the time it is made, and helps to avoid the case morphing as it proceeds through the various stages until the final hearing.
(2) Early hearing date: At the first RCC, the directions given may include the fixing of the hearing date – indeed, this will generally be done. Parties are to work with the court in the expeditious disposal of any arbitration OA hearing, and the Court will generally endeavour to fix the hearing for an arbitration OA within 8 to 12 weeks after the date of service of the arbitration OA.
(3) Limits on affidavits and written submissions:
i. There will generally only be one round of affidavits. Any further affidavits will require the permission of the court, which will be granted only in special cases.
ii. Written submissions are not to exceed 35 pages: Order 9, Rule 25(14) of the ROC 2021 and paragraph 105(2) of the Supreme Court Practice Directions 2021 (“SCPD 2021”), except with the permission of the court, which will be granted only in special cases.
(1) on the one hand, the appellant should be prevented from circumventing his obligation to arbitrate under a binding arbitration agreement;
(2) on the other hand, “the court is always concerned to ensure the fair and efficient resolution of disputes and making the parties undergo an arbitration which may result in an award that cannot be enforced may not conduce to such a resolution here.”
“People no doubt have many reasons for litigating without even trying to mediate first. Some people simply want their day in court; some people are so convinced that they will win, that they see no point in mediation; sometimes a party thinks that the other party won’t mediate in good faith; sometimes a party just can’t believe that the case is settleable; sometimes a party thinks that it is a fatal sign of weakness to propose or even agree mediation; and some people still just find the notion of mediation a bit weird. Perhaps the most telling evidence of human nature trumping good sense in this field comes from a 2007 survey, which reported that 47% of respondents involved in commercial litigation admitted that a personal dislike of the other side had been responsible for driving them into costly and lengthy litigation.”58. There is no shortage of people who personally dislike each other, and so end up in court. Might they be better served if they resolved their disputes in some other way? If so, how might that be achieved?