Category: The Brief

This article is a follow-up to our series on the different ways divorce can be settled. This article was written by Daryl Er, an intern of OTP Law Corporation and Emelia Kwa, a trainee at OTP Law Corporation.

The hybrid method refers to instances where litigation and mediation are used as two parallel tracks to resolve divorces. Here, lawyers are engaged for not only the litigation track but also to represent parties as their mediation advocates in mediation.

At present, this hybrid method is already being used where parties have children below 21 years old. This is since after such parties have filed for divorce, they are required to go for mediation at the Child-Focused Resolution Centre (“CFRC”) before they can continue with litigation proceedings.

Even if parties do not have children, they can still make use of mediation if both parties consent to do so.

Pros

The hybrid method retains the same benefits as mediation where issues can be solved during the mediation sessions – cost and time-effective, interest-based dispute resolution with reduced conflict between parties (see the article on Mediation – link).

It also has several added benefits. First, it may help to reduce the number of issues being settled through litigation as there is a possibility that some issues will be settled before litigation begins.

Second, if mediation can be conducted amicably, it may set the tone for later litigation, making it less adversarial and emotionally draining for parties. Mediation promotes cooperative and non-confrontational discourse, and even if there are residual issues to settle through litigation, the collaborative spirit of initial mediation sessions may carry on into the litigation process to make it more amicable than it would have been going directly into litigation.

Finally, parties benefit from having the same legal counsel in both the mediation and litigation process if they so choose. Having the same lawyers throughout the entire process ensures that they are privy to the context and nature of proceedings, and are better able to serve the needs of the parties.

Cons

Conversely, there is also a possibility that information revealed during mediation may push parties towards litigation. For example, where parties’ expectations are on opposite extremes, they may feel like the mediation process will not achieve anything. Mediators may also offer an opinion on how litigation may be favourable to one party, thus emboldening that party to commence litigation if the other does not cede to his/her demands. Where mediation does not work out, parties may be left feeling like they wasted their resources, which may aggravate them.

Further, parties may be wary of what details to reveal during mediation sessions as litigation is still impending. This may hinder progress. They may be more concerned with potentially giving away legal tactics or positions on certain issues rather than if disputes can be resolved. The effectiveness of mediation is greatly reduced if parties cannot negotiate openly and honestly during sessions.

Best For…

This method is more suited for parties in dispute over several issues which are particularly sensitive and contentious (such as custody over children, or high-value assets), but are open and willing to cooperate fully in order to solve some (or, hopefully, all) issues before litigating. The hybrid method is commonly used, with roughly 90% of cases going through with this process as it offers the best parts of both mediation and litigation.

This article is written by Eric Lip, a trainee at OTP Law Corporation

Part 1 of this article discussed how the cyber threats are captured under offence-creating laws, especially that under the Computer misuse Act.

In Part 2, we turn to look at legislation that touches on the protection against such cyber threats, and the key legislations that businesses and organisations have to navigate: the Cybersecurity Act, the Personal Data Protection Act (the “PDPA”) and various sectoral regulations such as the regulation for banks by the Monetary Authority of Singapore (“MAS”).

1 Cybersecurity Act

The Cybersecurity Act was passed on 5 February 2018 and there are four key objectives of the Cybersecurity Act:

• To provide a framework for the regulation of Critical Information Infrastructure (“CII”). The owners of these CII will be subject to certain duties, including complying with codes of practice, reporting cybersecurity incidents and performing audits and risk assessments. Non-compliance with such duties will result in criminal and civil penalties.;
• To provide the Cyber Security Agency of Singapore (“CSA”) with powers to manage and respond to cybersecurity threats and incidents;
• To establish a framework for the sharing of cybersecurity information with and by CSA, and the protection of such information; and
• To establish a light-touch licensing framework for cybersecurity service providers.

Although a significant portion of the Cybersecurity Act only directly addresses CII owners, it is expected that the obligations to comply with the cybersecurity standards will trickle down the supply chain and increase the cybersecurity standard in general.

More importantly, the CSA has broad powers of investigation in the event of a serious cybersecurity threat or incident that goes beyond regulating CII owners.

These powers include seizure of a computer without consent, requiring the owner of a computer to scan the computer for cybersecurity vulnerabilities and directing persons to carry out remedial measures such as removing viruses, installing software updates and redirecting malicious traffic to designated computer servers.

Such investigative powers complement the offence-creating legislation explored in Part 1 of this article by ensuring that swift and effective investigation can be carried out in the event of a cybersecurity incident.

2 Personal Data Protection Act

Organisations have 9 main obligations under the PDPA, viz, the Consent Obligation, Purpose Limitation Obligation, Notification Obligation, Access and Correction Obligation, Accuracy Obligation, Protection Obligation, Retention Limitation Obligation, Transfer Limitation Obligation and Openness Obligation.

Amongst these obligations, the Protection Obligation is the most pertinent for our current discussion. Under the Protection Obligation of the PDPA, an organisation is required to make reasonable security arrangements to protect personal data in its possession or under its control in order to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks.

Cybersecurity breaches often leads to, or are even motivated by, personal data breaches or leakages. As such, there is a considerable overlap between cybersecurity and personal data protection.

Nevertheless, the PDPA and the Cybersecurity Act are separate and distinct. The PDPA relates to personal data that an organisation possesses or control while the Cybersecurity Act covers all types of information and the computer/computer systems that handle such information.

A failure to uphold the standards set out in the PDPA puts individuals’ personal data at risk of being exposed and can result in penalties for the non-compliant organisation.

Take, for example, the 2018 SingHealth data breach where the personal particulars of 1.5 million patients were stolen. This was dubbed as the worst cyber attack Singapore has suffered, and surely remains fresh in many Singaporeans’ minds since as many as 2 million SMS messages were sent out to those affected by the breach.

After being notified of the attack, the CSA was involved in an early stage and carried out investigations and remediation of the attack. A Public Committee of Inquiry (“Public COI”) was also appointed to inquire to the events, establish a response and recommend measures to reduce the risk of such attacks.

Soon after the announcement of the data breach, the Personal Data Protection Commission (“PDPC”) also received complaints from members of the public regarding the breach, and commenced its investigations.

In a decision based on representations by Integrated Health Information Systems (“IHiS”) and SingHealth and also incorporating references to relevant section of the Public COI Report (“COI Report”), the PDPC found that both IHiS and SingHealth were in breach of the PDPA. As the nominated agency to deal with IT matters and data controller respectively, they had failed to comply with section 24. They did not protect the personal data under their control with reasonable security arrangements. Instead, multiple simple failings led to the breach: staff unawareness of phishing, weak passwords, amongst others. The PDPC thus imposed a total financial penalty of S$1 million, comprising S$750,000 and S$250,000 on IHiS and SingHealth respectively.

The SingHealth data breach demonstrates how a typical data breach involving a CII may play out.

While both the PDPC and the CSA can initiate investigation, it is more appropriate in this case for the CSA to be the authority carrying out the investigation as the matter is of national interest and SingHealth is CII owner. The obligations of a CII owner under the Cybersecurity Act, such as complying with the relevant codes of practice, standards of performance and written directions of the Commissioner of Cybersecurity (“Commissioner”) and conducting cybersecurity risk assessments and audits, would run parallel to the Protection obligations under the PDPA. The PDPC and the CSA may also both impose financial penalties for failure to meet the respective obligations as well as issue possibly similar directions for remedial or preventive measures.

Moving forward, the PDPC also has plans to amend the PDPA to create a mandatory data breach notification regime.^[1] A new “Guide to Managing Data Breaches 2.0” has also been recently released to provide further guidance to organisations on data breach management and reporting. As CII owners already have an obligation to report cybersecurity incidents to the CSA under s 14 of the Cybersecurity Act, this means that a CII owner may be required to notify both the PDPC and the Commissioner upon the occurrence of such cybersecurity breaches.

3 Sectoral Regulations

The CII sectors under the Cybersecurity Act are: Energy, Water, Banking and Finance, Healthcare, Transport, Infocomm, Media, Security and Emergency Services, and Government. Naturally, the wide array of sectors caught under the Cybersecurity Act makes it difficult for a blanket legislation to adequately address each of the sector’s specific cybersecurity concerns. There may also be existing codes and standards such as sectoral regulations that the relevant organisations must comply with.

As such, the Cybersecurity Act provides for the appointment of Assistant Commissioners to oversee CIIs in each sector and ensure that the Cybersecurity Act requirements are sensible for each sector. Such Assistant Commissioners would mostly come from the Sector Leads, which are the government lead agencies in charge of each sector.

An entity may thus be regulated under both the Cybersecurity Act as well as the sector’s own existing framework on cybersecurity. In the event of a breach, if the directions are issued based on the powers from the Cybersecurity Act, the Assistant Commissioner should take enforcement actions for non-compliance in consultation with the Commissioner and in accordance with the penalty framework in the Cybersecurity Act.

The sectoral regulations may set more stringent requirements than those required under the Cybersecurity Act. In such a case, the sectoral regulations would take precedence over the Cybersecurity Act in the event of non-compliance.

Sectors such as the Banking and Finance already have regulatory levers to tackle cyber threats and incidents. For instance, the Monetary Authority of Singapore (“MAS”) Notice on Technology Risk Management issued by the Monetary Authority of Singapore (“MAS”) imposes obligations on various financial institutions such as notifying MAS of relevant incidents, preparation of root cause and impact analysis reports to MAS pertaining to relevant incidents, as well as implementation of IT controls to protect against unauthorised access or disclosure. In this respect the MAS’s powers are similar to the powers over CII owners in the Cybersecurity Act.

4 Implications

What does all of the above information mean?

While most organisations would not likely be designated as CII owners, the Cybersecurity Act needs to be taken into consideration in 2 ways.

First, the broad investigative powers provided to the Commissioner under the Cybersecurity Act extends beyond just CII owners to allow the Commissioner to require non-CII system owners to assist in the investigations.

Second, organisations who own systems that are interconnected with CIIs would also need to consider the trickle-down effect of such obligations. Even if such organisations are not directly regulated under the Cybersecurity Act, they would likely be subject to contractual obligations imposed by CII owners reflecting similar obligations.

An organisation’s obligations under the PDPA would thus be generally more pertinent. Indeed, the substantial fines to IHiS and SingHealth clearly demonstrate the high stakes involved in non-compliance.

To this end, we suggest some key takeaways below derived from SingHealth Public COI.

Staff awareness and competence

Even the best technological measures would not be sufficient without competent and aware employees at the front line of the cybersecurity defences. In the case of the SingHealth breach, the most likely method through which the attacker had gained initial access to the network was by way of phishing attacks. Given that phishing attacks prey precisely on human vulnerabilities, promulgating basic security practices, such as increasing awareness on signs of phishing and practicing good cyber hygiene, can greatly improve the level of cybersecurity in the organisation.

While the awareness, training and resources of IT staff are crucial to ensuring adequate levels of cybersecurity, the training must not be limited to the IT staff. A strong cybersecurity culture organisation-wide is necessary.

Security structure and processes

From a technical standpoint, vulnerability assessments must be conducted regularly and a robust patch management process must be implemented to address such vulnerabilities. The COI Report highlighted that although a patch, which could have prevented exploitation of a vulnerability, was available at the material time, the patch was not installed. This allowed the attacker to exploit such a vulnerability.

It is also essential to sort out organisational matters, such as structures, policies and processes when forming a holistic risk management cybersecurity strategy. This includes effective incident response processes, such as an incident reporting framework, as well as policies to prevent such security incidents, such as a software upgrading policy.

In addition, organisations should take special notice to avoid being overly dependant on their vendors in handling cybersecurity. In the SingHealth scenario, although work was being delegated to IHiS as a data intermediary and IHiS was thus liable as a data intermediary, SingHealth as the data controller was still rapped for their over-reliance on IHiS in relation to the personal data collected. It is thus critical to examine existing and future partnerships to ensure compliance with regulations.

5 Conclusion

Organisations managing their cyber risk may now need to consider 4 sets of regulations: (1) the Cybersecurity Act; (2) the PDPA; (3) the Computer Misuse Act; and (4) sectoral regulations. This has raised concerns of increased cost of compliance amongst businesses and organisations. For instance, in the event of a breach, there may be a risk of duplicated reporting to the Commissioner and various sector regulators.

To this end, the CSA has promised that efforts will be made to harmonise the cybersecurity obligations under the Cybersecurity Act with those under the respective sectoral regulations as far as possible.

Given the nascent Cybersecurity Act and the different laws governing similar and even overlapping areas, navigating the regulatory landscape of cybersecurity is not a simple or straightforward task. While the regulatory framework and the interaction between the laws would likely receive greater clarity with the passage of time, businesses and organisations need to be remain cognisant of their obligations under each of the respective laws to avoid falling foul of any legislation.

[1] Personal Data Protection Commission website <https://www.pdpc.gov.sg/news/press-room/2019/03/plan-to-make-data-breach-notification-regime-mandatory> (1 March 2019)

This article is the third part of a series on the different ways divorce can be settled. This article was written by Daryl Er (an intern of OTP Law Corporation) and Emelia Kwa (a trainee of OTP Law Corporation).

The last dispute resolution mechanism to be considered is litigation. This is the traditional legal process where parties engage lawyers to provide legal advice and advocate their position before the court, who will make the final decision.

Litigation is the most conflictual and rigid of the four methods, as parties and their lawyers each have to craft legal arguments and present a case which puts them in their best light (usually while making the other party look their worst), in order to get the best chances of obtaining their desired result. Parties are bound by the court’s rules and timetables, usually making litigation a lengthy process. However, at the end, the outcome is rarely a total ‘win’ for either party – there will typically be some compromise.

Further, parties will have to gather relevant evidence and argue their case within the confines of statutes and precedent derived from case law, where many emotional factors will not be taken into consideration by the court. Relevant information from both parties must necessarily be produced during the ‘discovery’ process.

Note: These days, divorcing parties may not immediately head to the courts. Instead, parents with children below the age of 21 must first undergo compulsory mediation.

Pros

First, litigation can be effective against parties who are uncooperative. For example, Party A may not comply with the rules or timelines of the court, or may even disobey court orders. In response, the Party B can make applications to the court to make binding orders on Party A to get them to comply. Further, courts may enforce discovery of necessary information and impose sanctions of failure to comply.

Second, leaving the eventual decision to the courts ensures a fair outcome (although it may not necessarily be the best one for the parties). Where pre-trial mediation and negotiation falls through, judges are highly-trained neutral third-parties who will decide the case based on the evidence, effectively putting an end to the dispute.

Lastly, litigation levels the playing field for parties – the presence of lawyers throughout every stage of the process ensures that no party will have any undue influence over the other.

Cons

However, the shortcomings of litigation usually outweigh the benefits. First, litigation is a very costly and time-consuming process. Having to adhere to the court’s timetable and deadlines, the process may drag on well beyond what parties would expect, especially in contentious cases. Here, the expenditure of both money and time may take a toll on the emotional and financial well-being of parties. This is compounded where parties appeal the judgment or seek a variation of the court order given.

Second, litigation is also likely to create resentment between the parties and thus make it difficult to maintain an amicable relationship between parties. This will undoubtedly have a negative effect on any children where animosity between their parents extends beyond the divorce proceedings.

Further, due to the adversarial nature of litigation, court judgments and orders will naturally favour one party or the other.  Moreover, judges are bound by the law in making decisions and orders, as well as the evidence before them. This ignores many other ‘human’ factors which come into play, and which can be considered should parties opt for mediation or collaborative practice instead.

Best for…

Given the high-cost nature of litigation, this method is perhaps best used as a last resort. To that extent, it is most effective in situations where parties are uncooperative (e.g. if a party suspects the other is hiding assets, etc.); where there is a high chance of other methods failing, such as if other parties are unwilling to mediate; or where parties have domineering spouses, and are fearful to speak for themselves. Further, it is also best suited for parties who want a third-party to settle disputes for them, and are open to any ruling which may result.

So, which is the best method for resolving divorces?

Undoubtedly, it is difficult for most contested divorces to be truly ‘peaceful’ or ‘amicable’ – if it was, perhaps divorce shouldn’t be on the table in the first place. Disagreements and arguments will likely arise during whichever process parties choose. However, of greater concern is how parties would like to move forward and move on, taking into consideration their unique individual circumstances. While there is no best method for dispute resolution, choosing the right forum to settle any issues will play a large role in how satisfied parties are with the divorce process. In that respect, it is ultimately up to parties to consider what they truly want following the divorce and choose the forum which best addresses their interests.

Conclusion Table

This article is written by Mr Lim Seng Siew of OTP Law Corporation and Eric Lip, a trainee of OTP Law Corporation.

Ever since the Protection From Online Falsehoods and Manipulation Bill 2019 (“the Bill”) was tabled in Parliament on 1^st April 2019, significant comments have been levelled at the potential stifling of free speech. Much ink has been spilled over this. You can search the internet to understand this issue better. There is even a video with Michelle Chong and Minister of Law explaining the Bill.

As of 9 May 2019, the Bill has been passed after a two-day debate on the matter to now form the Protection From Online Falsehoods and Manipulation Act (“the Act”).

What happens now to the legitimate business owner who runs a website or social media to promote his goods or services? How will the Act affect the online presence of his business?

What happens if the business inadvertently posts a false statement of fact on its website? What happens if the business allows a comment that contains a false statement of fact to remain on its social media? This article focuses on how such businesses can deal with these questions and offers some practical help to businesses to manage their online presence.

We start with key areas of possible liabilities that a business owner may face: (i) the offence of communicating a false statement of fact; and (ii) the liabilities and responsibilities of the business owner as an internet intermediary.

Communication in Singapore of False Statements of Fact

Section 7 of the Act makes the knowing communication of false statements of fact online in Singapore an offence if it is likely to be prejudicial to “public interest”. “In the public interest” is an umbrella term used in this article to cover the list of prejudicial situations specified in the Bill. Examples of such interests include: the security of Singapore, public health, public safety, public peace, public finance, Singapore’s diplomatic relations and other similar situations. ‘Communicate’ is defined in section 3 of the Act to cover any statement that is available to an end-user in Singapore through the internet, MMS or SMS.

A business that either knowingly publishes a false statement of fact on its website or knowingly allows a third-party comment that contains a false statement of fact to remain on its website or its social media may be committing an offence. An individual business owner can face a fine of up to S$50,000 and/or imprisonment of up to 5 years. Where the business is a corporation, it can face a fine of up to S$500,000.

What happens if the business was ‘innocently’ sharing an article or comment? After all, section 7 uses the terms “knowing” and “reason to believe”. This means that section 7 covers more than just actual knowledge and includes businesses who ought to have known that the statements were false or that they prejudice the interest of Singapore. Thankfully both the Minister of Law and the Minister of State for Law have clarified in the press that ‘innocent sharing’ will not attract any criminal liabilities. However, the level of such ‘knowledge’ required (or the lack thereof) for there to be an offence is still not clear. We will have to await further clarification during the Parliamentary debates or by our courts.

In any case, businesses (even those who fall under the category of “innocent sharing”), are still subject to other obligations under the Act. As an example, if a business receives a ‘Part 3 Direction’, then timely compliance with such a direction is necessary to avoid any liability.

The Part 3 Direction

A Part 3 Direction may be issued if a false statement of fact is communicated in Singapore and the Minister is of the opinion that the statement is prejudicial to Singapore. It is issued to the person who communicated the false statement. There are two types of Part 3 Directions: a Correction Direction and a Stop Communication Direction.

The Correction Direction will direct the business to communicate (either via the internet, MMS and/or SMS) a correction notice that will set out the government’s response to the false statement. In a Correction Direction, the false statement need not be taken-down.

The Stop Communication Direction is different. It requires that the business stops the communication of the false statement. It is akin to a take-down notice.

Non-compliance with a Part 3 Direction runs the risk of an individual business owner being fined up to S$20,000 and/or imprisonment of up to 12 months. Where the business is a corporation, the fine is up to S$500,000.

Internet Intermediaries

If the business is an internet intermediary, then section 7(4) of the Act gives it some protection against liability for communicating an online false statement of fact that is prejudicial to the interest of Singapore. There are other classes of service providers that are also given this protection but we will only focus on internet intermediaries. Examples of internet intermediaries set out in the Act include social networking sites, search engines, content aggregators, internet-based messaging service providers and video-sharing sites. Thus a business that operates a website that hosts a chatbot or allows users to post comments may be considered an internet intermediary.

However, this does not mean that an internet intermediary has no obligations under the Act. It has to comply with Part 4 Directions issued to it, that is either a Targeted Correction Direction or a Disabling Direction. The Targeted Correction Direction will direct the internet intermediary to communicate (either via the internet, MMS and/or SMS) a correction notice that will set out the government’s response to the false statement to end-users in Singapore who had access to that false statement. The Disabling Direction is issued to an internet intermediary to disable access by end-users in Singapore to that false statement.

Managing online presence

With the above in mind, how then should a business manage its online presence?

It is suggested that the mere failure to moderate third party comments such that false statements of fact remain on the website of a business would not satisfy the requisite degree of criminal culpability of having (a) knowledge that the statement is false; and (b) knowledge that the statement is likely to be prejudicial to the interest of Singapore. This is especially so for very active websites where it would be highly onerous to require its operators to moderate the hundreds or thousands of comments every day. The situation may be different if the volume of comments is very low since the reasonable expectation would most likely be that the website operator should moderate the third-party comments to seek out and remove false statement of facts that prejudice the interests of Singapore.

However, if the website operator has been specifically informed of such statements of falsehood in third party comments, the operator cannot claim innocence to avoid any criminal liability. He should remove the false statement within a reasonable time once he is informed about it.

Conclusion

In summary, a business that operates a website or social media pages promoting its services or products is not likely to post false statement of facts that are prejudicial to the interest of Singapore. It can stop comments on its website or in its social media pages to avoid any liability under the Act. However, it may not make commercial sense to do this as in this day and age online interaction with its customers is important. If comments are allowed and the volume is low, the business should moderate the comments to remove any false statements. If the volume is high and moderating the comments may not be feasible, false statements should be removed as soon as possible once the business is notified of the false statements. Finally, if the business receives any Direction, comply.

This article is the second part of a series on the different ways divorce can be settled. This article was written by Daryl Er (an intern of OTP Law Corporation) and Emelia Kwa (a trainee at OTP Law Corporation. Article was first published on OTP Law Corporation’s website:  www.otp.sg

A third (the second being mediation) track towards dispute resolution would be collaborative practice.

What is it?

Collaborative practice (CP), like mediation, looks at the interests of the parties.  However, it differs greatly in the type of people involved, i.e. specially trained CP lawyers and potentially other family specialists (e.g. financial advisers, child experts, counsellors etc.) who will work with the parties to negotiate an agreement that suits the family. CP happens before the start of any court proceedings.

The process

Parties and their trained lawyers first make a binding collaborative commitment (called a ‘participation agreement’) to voluntarily disclose all relevant information, proceed respectfully and in good faith, and refrain from litigation. They will also agree to negotiate directly in an interest-based, non-adversarial problem-solving process.

Parties may also bring in other neutral professionals such as financial planners or coaches to facilitate smoother discussions and support parties through new processes (such as child custody, financial matters like maintenance and division of assets) and emotionally-charged issues. There are generally no set rules on how collaborative cases are to be handled, and as such, parties have a substantial control over the processes and outcome.

The terms agreed during the sessions are compiled within a settlement agreement, which will be fully enforceable upon agreement by both parties.

What happens if CP fails?

However, should CP fail and litigation comes into play, both collaborative lawyers are obliged to withdraw. Moving forward, parties will have to seek new litigation counsel. This is primarily to encourage parties to see through the CP process and discourage abandoning the process unless there is really no way forward.

Pros

Preliminarily, CP gives parties much more control over the outcome than litigation as it is collaborative and interest-based.

Next, the use of a participation agreement ensures that parties may be more open to discussion and collaboration. This is since parties agree to refrain from litigation, which may help alleviate the pressures which arise from the option to the opt-out at any time during mediation.

The involvement of neutral third-party professionals also greatly aids the effectiveness of discussions. This is since the process could become better tailored to the parties’ circumstances by accounting for their financial interests, childcare arrangements, emotional well-being, etc. Moreover, such discussions may help parties better understand each other’s situations and perspectives, thus leading to a better solution.

Further, having various professionals involved in a single stage can serve as a “one-stop shop” for parties to settle many issues at a more cost-effective rate. This is a better option than spending more time and money seeing each professional individually for advice.

Lastly, the presence of a lawyer ensures that each parties’ interests are always represented during meetings. Here, there is a much lower chance that the agreements will be influenced heavily by more domineering parties (if any) as the lawyers may intervene.

Cons

First, CP is heavily reliant on the cooperation of both parties to provide the necessary documents, as disclosure is voluntary. Thus, progress can be disrupted should one party refuse to provide any information requested. Also, failure to resolve the issue during the CP process may mean a lot of time and money wasted on the process, since parties have to seek out new lawyers for litigation.

Second, while CP is typically cheaper than litigation, it is potentially costly (at a first glance) due to the number of parties involved in the process. With the need for specially-trained collaborative lawyers, and potentially many third-party professionals, costs can increase quite rapidly. This could lead to two issues later on: first, parties may feel like they have no choice but to settle due to the substantial investment made in CP; or second, should CP fall through, parties may be all the more bitter over the amount of money and time spent.

Best for…

With regard to costs, parties should consider whether having a “one-stop shop” is important to them. If yes, the costs involved in CP may be worthwhile as they would save on time and money otherwise spent consulting the various professionals individually.

CP may be the best option where parties prefer or need to have legal counsel and other professionals to support them during the negotiation process (e.g. if they are soft-spoken, or easily influenced by the other party), and would like to avoid litigation. With the right professionals,  CP may be suited even for cases where there are substantial assets involved in the dispute.

This article was written by Daryl Er (an intern of OTP Law Corporation) and Emelia Kwa (a trainee at OTP Law Corporation). This article was published by OTP Law Corporation

We have previously covered what mediation entails in our Basic Guide to Mediation. Having covered many instances where mediation could have been helpful in family cases, we decided to turn the focus a bit onto how mediation can be helpful in civil litigation matters.

What do you mean by civil litigation?

These are usually cases that start by a writ of summons or originating summons.

Where does one go for mediation then?

In addition to private mediators, there are two places you can consider when considering mediation for your civil dispute:

1. The State Courts Centre for Dispute Resolution (SCCDR)
2. Singapore Mediation Centre (SMC)

The mediators at the SCCDR are State Court Judges who have been specially appointed and trained in mediation, as well as court volunteers who are trained and accredited by the State Courts and the SMC.

The SMC also offers mediation for civil disputes, and their mediator panel consists of experienced judges as well as lawyers.

Is the mediation process different from family mediation (i.e. the process in the Basic Guide?)

No. Just like for family disputes, mediation for civil disputes involve the mediator acting as a neutral third-party. The mediator then assists parties in reaching an agreement by considering the positions of the parties and offering solutions based on their interests.

The mediator (who does not need to be a lawyer) can provide information about the law or facilitate discussion in order to help parties find the best solution to issues, but cannot represent either party or provide legal advice.

Information and documents are disclosed voluntarily by respective parties, and upon analysis, each will propose possible solutions to the respective areas of dispute. Mediation is conducted without prejudice, meaning that whatever is said during the sessions cannot later be used as evidence in court. Any decisions or agreements made by the parties during mediation will be embodied in an agreement, which upon signing by both parties, is fully enforceable in court.

Parties can also engage legal counsel for advice and to check the drafted mediated agreement.

What kinds of civil disputes can be mediated?

While not an exhaustive list, the Supreme Court Practice Directions has given some clues on the types of disputes that would be ideal for resolution through mediation:

• Commercial disputes where disputants have an ongoing relationship that needs to be preserved
• Small value construction disputes where the costs and time involved in having the matter resolved through the courts is out of proportion to the sums at stake
• Neighbourhood disputes over noise, boundaries, right of way or user
• Professional partnership disputes over dissolution or the respective rights of outgoing and remaining partners
• Actions by liquidators in which the available assets are limited and likely to be consumed by the costs of the liquidators and litigation
• Clinical and medical negligence cases where the victim needs to be heard in an environment which is less formal than a court room and where the medical professional may more easily apologise and explain
• Most employment cases, including all forms of discrimination, in which the complainant and the defendant can confront each other in an informal environment which is less inhibiting than a tribunal or court
• All types of claims where the costs of any proceedings are likely to equal or exceed the value of the claim

Judging from the types of disputes above, one can see that mediation is targeted at instances where:

• Parties seek an amicable solution
• Parties want control over the outcome
• Parties want to preserve a lasting relationship with the other side
• Parties seek to save time and costs

Of course, even if your situation is not covered by the list above, it is always open to you to engage in mediation if you feel like it would be helpful.

Factors in deciding whether to go for mediation

Pros

Primarily, mediation promotes an interest-based approach towards dispute resolution, where it considers the concerns and interests of each party in finding a middle-ground. These may be factors and concerns not admissible in court, and can also be resolved by solutions which cannot be granted in court.

Mediation allows for direct and open negotiations (unlike the selfish nature of litigation), which can encourage effective communication between parties and creative problem solving.

The cooperative and non-confrontational nature of mediation in turn leads to a more peaceful split between parties, which can facilitate amicable long-term relationships. As decisions are consensus-based, parties are likely to be more willing adopt a ‘give-and-take’ mentality in the interest of finding common ground.

Also, compared to litigation, mediation is a more cost and time-effective. Mediation usually cuts the high legal costs associated with preparation for trial, with the added benefit of a quicker resolution if parties can find an agreeable solution early in the process.

Finally, mediation also allows parties to take control of the outcome. In litigation, the eventual binding outcome is solely in the hands of the judge, and may not even be in the complete interests of either party. Mediation gives parties a chance to find solutions which are agreeable to both parties.

Cons

However, mediation does have its weaknesses. Firstly, a mediator cannot level any imbalance of power between the parties. Where there is educational, emotional, or power imbalances between the parties, the mediator is unable to intervene if the weaker party merely gives control of the decision-making process to the more dominant party. While an eventual agreement may be reached, this may lead to unjust outcomes where the agreement heavily favours the interests of only one party ahead of the other.

Secondly, successful mediation necessarily relies on the full cooperation of both parties, especially during the discovery process. Here, uncooperative parties may hinder progress if they refuse to provide important documents such as financial statements as all disclosure is voluntary.

Further, as lawyers are not constantly present during the negotiation process, they can only offer an objective view of the legal implications of any terms which arise in the draft mediated agreement. The professional objective opinions of lawyers who are unsure about the context upon which agreements were made may be counterproductive to mediation if they manage to persuade their clients to change their minds on agreed terms.

Lastly, failure in negotiation usually just means wasted time and money, as parties have to start afresh with the litigation process.

Mock Mediation Video

Interview & Article by: Emelia Kwa, a trainee at OTP Law Corporation.

Watch our Project Restructure Video.

For more information on Project Restructure, give us a call at +65 62213009

Published: 28 February, 2019

Interviewee’s name has been changed to protect the identity and privacy of all parties involved.

“I don’t really know how I survived” are not the words you’d expect to hear from someone speaking about their marriage. However, in Peter’s case, what he expected to be a fairy-tale romance turned out to be a lot more complicated in reality.

Peter’s story is not uncommon – every marriage has its challenges and couples may find themselves struggling to make sense of the difficulties and changes they are going through. However, as Peter’s case demonstrates, being aware of when to seek help or advice can be helpful in getting you a better outcome than you expect.

MARRIAGE

While marriage is often thought of as a union of two people, what we tend to forget is how that union also brings together two different sets of families. It can be helpful to have in-laws involved as caregivers for the children, but at what stage should parents be left to handle their children independently?

The lifestyle and culture of a family

In Peter’s case, his mother-in-law was a very hands-on grandmother. While he appreciated how she had her grandson’s best interests at heart, she often crossed the line when it came to giving Peter and his then-wife independence. For example, she was constantly in their home, taking care of both the grandchild and mother, despite the complaints of the confinement nanny that her work was being interfered with. The final straw came when she made derogatory remarks about Peter’s job and manhood for wanting to be work from home so that he could tend to his child who was ill at the time. This led Peter to push his wife into a tight corner between him and her mother.

Ultimately, although the mother-in-law did apologise genuinely for the incident, the damage had already been done. It was clear from the events leading up to the incident that the mother-in-law wielded a lot of control over the family and would not hesitate to assert her authority as a grandparent into their family’s lives.

Handling day-to-day disagreements

Situations like Peter’s may seem familiar to you. After all, raising a family can quickly escalate into a complicated process. It can also be difficult for spouses to decide how best to handle the situation since they need to please both their partner and their parents.

Should you find that your day-to-day disagreements are escalating out of control and with no improvement over the long term, it may be appropriate to think about seeking external or professional help.

RAISING CHILDREN

Most parents are concerned with the long-term interests of their child: what type of education should they receive? What career path will they take?

It is high time that parents recognise to prepare for another critical aspect of their child’s life: their health.

Peter’s first-born had unfortunately suffered from several health problems, leading to him being born pre-maturely. This meant there were additional costs to raising him on top of the usual preparations made for a child. Couples preparing for childbirth should therefore be aware of how they can best prepare for such emergency or rainy-day situations. Things like savings, baby bonuses, insurance, etc. can be helpful in dealing with medical emergencies and will go towards giving parents an ease of mind.

MATERNAL BLUES

Peter also made an astute observation about having children – that while everyone acknowledges the role mothers play, the moment the child is born, all attention shifts to the baby’s needs. As it turned out, his wife suffered from post-natal depression but they were unaware of this until after the divorce.

Post-natal depression is a very real and serious issue but is also something that can be treated. Mothers who experience post-natal depression must recognise that there is nothing wrong with them. It is high time we acknowledge that everyone is at risk of being exhausted emotionally and mentally, especially after something as physically tiring as giving birth and childcare.

What should be done then?

Pregnant mothers should first seek guidance on preparing for the childbirth experience, the postnatal period and how to manage their baby.[1] Their family members should also give them support and reassurance after the delivery of the child and help over caring for the infant.

Where mothers or their family members suspect that postnatal depression may be developing or has arisen, it is crucial to give these mothers support to seek treatment.[2] A mild depression may be treated with acknowledgement, support and reassurance. In contrast, moderate or severe depression may require more long-term treatment, such as therapy or medications. Since most mothers may be concerned about potential side-effects when nursing their child, treatment can be carefully selected to put the mother at ease.

REPAIRING TRUST IN A RELATIONSHIP

Marriage is ideally between two people who have complete love and trust in each other. Realistically speaking, every marriage has its challenges, and one common hurdle is managing the self-esteem and confidence of each party in the relationship. Where one party is going into a relationship with insecurities or trust issues, this may make the resolution of other issues further down the road harder to resolve.

In addition to the stresses from an over-bearing and over assertive mother-in-law, more trust issues started to wedge between Peter and his wife. Unbeknownst to Peter, his wife was suffering from postnatal depression and he couldn’t distinguish her behaviour of being overly sensitive, over reacting and unreasonable as symptoms of depression, instead he held it against her and they had countless quarrels and almost every day.

She once caught him looking too long at photos of attractive candidates who submitted resumes for positions in his firm. The more she accused Peter, the more defensive he got even though he technically had not committed any wrongs. It got to a point where he was questioning himself – was he really as guilty as his wife made him out to be? This sense of guilt haunted him as he still had to be in contact with a particular new hire who happened to be very attractive in order to mentor her.

All of this culminated in Peter trying to reassure his wife by explaining that while he may have been attracted to the looks of the new staff, he did not and would not act on that attraction. He had also apologised for even taking a second look at that candidate and for getting defensive, and reassured her that he appreciated her keeping him in check. However, this worked against him as his wife did not believe him and instead took it as further confirmation that an affair did happened.

The accusations and quarrels became unbearable for Peter. Out of resentment and an eroded emotional attachment over the many heated arguments they had (whether about the affair or his mother-in-law, etc.), Peter eventually purposely had the affair. In his mind, he did it out of spite since his wife kept insisting that he had already done so.

Could all of this have been avoided? Maybe – there may have been problems in communication between Peter and his ex-wife as to how they handled the situation. While such quarrels are indeed very personal and private in nature, it may have been better if they had sought a counsellor or third party to intervene and talk things out for them. This may have helped them resolve their trust issues and work towards communicating with each other better (instead of simply pointing fingers or harbouring suspicions).

HANDLING DIVORCE

Once again Peter’s mother in law intervened and forbade his wife to speak to him or reconcile. Ultimately, Peter felt that he was forced into getting a divorce on the basis of the affair. So, Peter gave up in trying to plead with his mother in law and ended up not seeking legal representation and agreeing to everything his wife wanted. This led to it being resolved in about 2 months (very quick in the normal course of things) and him giving her $4,000 or more in maintenance and their matrimonial home, amongst other things.

While Peter thought that being generous in divorce settlements may have helped soothe their relationship over, it led to other problems for him. He soon found himself in a huge debt and thus had problems maintaining his business. He also did not know how best to handle the situation as his ex-wife would only speak to him about their children and money. She would also threaten court proceedings if she was not given any increases in maintenance that she asked for.  At his most desperate times, he considered suicide often.

Money, money, money

Eventually, Peter sought the help of Credit Counselling Singapore, who helped him work out how best to manage the maintenance due and he debts he had. They also managed to help him get the amount of maintenance reduced on the basis that his ex-wife was earning a reasonable amount.

If you find yourself in a similar situation, or are unsure how to manage your assets or debts, you too should seek professional financial advice on how things could be resolved.

Figuring out how to parent alone

Luckily for Peter, his ex-wife and mother-in-law were both keen to allow him access to the children. Still, they continued to question about how good a parent he would be. His ex-wife would monitor about the children’s welfare via the domestic helper and Peter found parenting a chore and had been tempted at times to relinquish his rights as a father.

In such situations, seeking legal advice or going to court can actually be beneficial in helping one take stock of how parenting arrangements can be made. This is since mediation and counselling is mandatory for parents with children under 21 years of age, and the mediator/ counsellor can help parents manage their expectations, emotions and arrangements with regard to the divorce. In highly acrimonious cases, a parenting coordinator may also be appointed by the court to help parents arrange care and access for the children. Both mediation and having a parent coordinator can also result in reduced legal fees and less time spent in court.

Additionally, raising a child is a lifelong affair – at times, it may be difficult to know how best to answer your child’s questions on difficult issues (e.g. “Did you have a wife?”, “Is your wife my mummy?”, etc.). Speaking to a parenting coordinator or counsellor can help you better handle such questions and over time, navigate the difficult path of parenting.

Finding support during and after a divorce

Going through a divorce, learning how to parent and managing one’s career are all highly stressful situations. This is even more so when they all occur during the same time frame. Peter thankfully had the support of his boss, 2 friends and religion to tide him through those rough waters.

Should you need advice and need some support, OTP Law Corporation has its doors open every first Thursday of each month for Project Restructure Open House for you to talk privately with one of our affiliates. 

IN CLOSING

From his experience, Peter leaves the following advice:

1. Couples should try to discuss what roles they wish to handle during the marriage (whether as parents, household issues, etc.) without the interference of other people (e.g. in-laws, etc.). Both parties should be agreeable and happy with their roles. They should also try to address expectations they have of the relationship and their roles.
2. Men should take care not to let their pride get in the way of handling disagreements. While some men see themselves as the head of the family, they should not let this “authority” stop them from admitting their faults or helping their family. Remember that being “right” does not always resolve the situation and that it is a blessing to serve your family.

Being in a relationship may not always be a bed of roses, but seeking advice can help make it a smoother ride.

[1] https://www.singhealth.com.sg/patient-care/conditions-treatments/postnatal-depression-mental-wellness

[2] https://www.singhealth.com.sg/patient-care/conditions-treatments/postnatal-depression-mental-wellness