THE SINGAPORE CONSTRUCTION MEDIATION CENTRE
There is now a new mediation centre in town, specifically targeted at the construction industry, addressing the demand for mediation services.
New mediation centre for construction disputes. The Singapore Contractors Association Limited (“SCAL”) has launched a new mediation centre called the Singapore Construction Mediation Centre (SCMC) on 12 March 2019, with a view to providing SCAL members with another platform to resolve disputes amicably. It is reported in the news media that for a dispute to be mediated at the SCMC, at least one party must be a SCAL member or registered under SCAL’s Singapore List of Trade Subcontractors. However, we note that this requirement is not stated in the SCMC’s procedure and forms at the time of writing.
For SCAL members but non-exclusive. The SCAL members are still be able choose other mediation providers such as the Singapore Mediation Centre (SMC) to mediate their disputes.
Appointment of mediators. The mediator in an SCMC mediation will be appointed from SCMC’s Panel of Mediators, and SCMC recommends that two mediators be appointed for disputes exceeding $250,000. Parties can indicate specific skills required from the mediators (e.g. trades involved, language and credential) in the request for mediation.
Based on news media reports, the SCMC Panel currently comprises 24 individuals who hold high management positions in construction companies or have experience in mediating construction disputes, including at least 1 lawyer who specialises in construction. However, the list of individuals and information on selection, training and accreditation is not available on SCAL’s website at the time of writing.
We do note, however, even with the SMC, parties can indicate the type of dispute (e.g. construction/contractors) as well as the mediator background/attributes (e.g. industry, profession, language proficiency, age) in the Request for Mediation and SMC will select a person best placed in its view to serve as mediator. It can be expected that SMC will try to appoint mediators with construction experience for construction disputes. The SMC’s Register of Adjudicators may be a useful reference, as some adjudicators are also on the SMC’s mediator panel.
Use of experts. We also note that a SCMC mediator may with parties’ consensus engage experts to provide further insights, and parties shall bear the cost equally. Similarly, a SMC mediator may with parties’ consent obtain expert advice on technical matters.
Mediation Rules and Procedure. After mediation has been requested, the mediation centres will persuade the other party to participate (if mediation initiated by one party) and arrange a suitable date for mediation.
The SCMC will stop administering the case if 6 months after the request for mediation, parties still fail to agree on the mediation date, and the SCMC will only revive the case on the request of all parties.
In contrast, the SMC procedure does not expressly state the consequence of parties not reaching agreement on a mediation date.
Mediation agreement. Mediation is voluntary. Parties will enter into a Mediation Agreement prior to the mediation session, which binds parties to observe the mediation procedures, confidentiality and without prejudice, and indemnifies the mediation centres from all matters arising from providing mediation. The conduct of the mediation sessions are then for the mediators to facilitate.
Case summary and documents. The mediation case summary and supporting evidence are to be exchanged in hard and soft copies at least 2 weeks before the mediation under SCMC. If parties wish to, confidential documents need not be exchanged and can be submitted to the mediator privately during the mediation.
In contrast, the case summary and documents are to be exchanged at least 10 days before the mediation under the SMC, and there is a 5MB limit for each soft copy document. A party would need to instruct the mediator and the SMC in writing regarding information which it does not wish to be disclosed to the other party.
Mediator’s obligations. The SCMC’s Code of Conduct for Mediators requires the mediators to be impartial at all times and to have no conflict of interest with the parties. The mediator may terminate the proceedings if parties indicate lack of trust in mediator’s impartiality.
Similarly, for SMC mediation, the mediator has discretion to withdraw if parties allege breach of the Code of Conduct.
Under the SCMC Procedure and Mediator Code of Conduct, the mediator shall not make any judgment on the case and is cautioned against giving personal advice.
In contrast, under SMC’s procedure, mediators can make rulings/findings if all parties expressly request. Further, if no settlement is reached, the mediator can agree at the request of all parties to produce a non-binding written recommendation of the terms of settlement, which shall not be used in any proceeding except with consent of the parties and the mediator.
Confidentiality. The SCMC mediation process is governed by the Mediation Act 2017. In comparison, SMC mediation requires parties to pay heed to the Mediation Act 2017.
Accordingly, anything said or done, document prepared or information provided for the purposes of or in the course of mediation cannot be disclosed to third parties unless permitted under section 9 of the Mediation Act 2017.
The SCMC and SMC procedures are similar in providing that information arising or in relation to the mediation shall not be used for any ulterior purpose. They also provide that no recording of the mediation proceedings in any form is allowed.
Settlement agreement. Under both SCMC and SMC mediation, only the terms of settlement which are reduced to writing and signed by the parties will be binding. Both SCMC and SMC provide that the settlement agreement may be recorded as a court order under section 12 of the Mediation Act 2017.
The SCMC requires parties to notify the SCMC in writing before the mediator is appointed if parties would like to have the settlement agreement recorded as a court order. This is likely so that SCMC will then appoint a mediator certified under the Singapore International Mediation Institute Credentialing Scheme and ensure that the other conditions in section 12 of the Mediation Act 2017 are satisfied.
In contrast, SMC is a designated mediation service provider under the Mediation Act 2017 so there is no need for SMC to specially appoint certified mediators for the settlement agreement to be recorded as a court order.
Pricing. At the time of writing, it appears that SCMC’s mediation fees are around 10% to 12% lower than the SMC’s mediation fees. However, the SCMC and SMC fee schedules do not apply if parties choose their mediators instead of letting the mediators be appointed.
Quantum of claims and counterclaims Mediation Fee per party per day (before GST)
Up to $100,000 $800 $900
Above $100,000 up to $250,000 $1,100 $1,200
Above $250,000 up to $500,000 $2,500 $2,750
Above $500,000 up to $1,000,000 $3,000 $3,250
Above $1,000,000 up to $2,500,000 $3,600 $3,950
Above $2,500,000 up to $5,000,000 $3,900 $4,300
Above $5,000,000 $4,300 $4,750
Combined with the fact that SCMC mediators would have background in the industry, SCMC looks to be an attractive option for construction disputes mediation, even though the SMC is the more established mediation provider.
Tags: Mediation Act 2017; Mediation; Mediation Centre
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