by Lim Seng Siew, Director OTP Law Corporation

The Basics
Singapore recently passed laws to allow for lawyers to enter into conditional fee agreements with their clients for certain types of cases. The purpose of such changes is to allow for better access to justice for deserving cases. The changes allow a flexible fee arrangement, in addition to the usual arrangements, between the client and the lawyer. As Second Minister of Law Mr. Edwin Tong SC said, CFAs are “not intended to replace traditional fee structures.”
First off, conditional fee agreements or CFAs are not allowed for all types of litigation or disputes cases. Only arbitration cases, whether domestic (Singapore dispute involving Singapore based parties) or international, and certain cases before the Singapore International Commercial Courts can CFAs apply. Matrimonial disputes and disputes that are decided by the domestic Singapore courts are excluded.
Second, conditional fees are not contingency fees. The key difference is that conditional fees is not fees based on the amount of damages or sums awarded. That is, it cannot be a percentage of the damages awarded to the winning party. Instead in a conditional fee agreement, there will be a base legal fee. If a client wins the case, the lawyer can charge an uplift fee that can be ‘x’ times that base legal fee. There can also be other creative fee solutions crafted between the lawyer and the client, just that it cannot be tied to the damages awarded.
Now that the basics are out of the way, let us deep dive into the world of CFAs.
The Law
In January 2022, Singapore passed a bill amending the Singapore Legal Profession Act by adding a new Part 8A to allow for CFAs. The amendments took effect on 4 May 2022 along with the related regulation, The Legal Profession (Conditional Fee Agreement) Regulation 2022 (“Regulation”).
Before the amendment, a lawyer in Singapore cannot enter into such arrangements with clients as they are considered a breach of the legal doctrine prohibiting champerty and maintenance. The aim of the doctrine is to preclude frivolous litigation. As one of the judges in a 1993 English case (Giles v Thompson) said: “In modern idiom, maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds.”
The Allowed Cases
CFAs are now allowed for: (a) international and domestic arbitration cases in and outside Singapore; (b) cases started in the Singapore International Commercial Courts (SICC) and remain in the SICC throughout the case; and (c) court and mediation proceedings related to the aforesaid.
CFAs can cover preliminary work done for such cases. As examples, the initial advice and pre-commencement negotiations to settle the dispute can be covered under a CFA. CFAs continue to apply even if the intended case is not started or is settled in the interim.
Personal injury cases started in a Singapore court cannot be the subject of a CFA nor can criminal or matrimonial cases.
The CFA
The Part 8A of the Legal Profession Act requires that the conditional fee agreement be in writing and signed by the client. The CFA cannot have any clause that excludes the lawyer’s liability for negligence and the existing rules preventing a lawyer from overcharging continue to apply. It also cannot have any clause for fees to be payable as a percentage of the damages or other amounts awarded.
As the CFA is an arrangement between the lawyer and the client, it does not affect the costs obligation of any losing party in an arbitration or SICC case, that is the losing party will still be ordered to only pay reasonable costs to the winning party. The winning party cannot ask the losing party to pay more than that, in particular the losing party cannot be asked to pay any part of the uplift fee in excess of reasonable costs.
If a conditional fee agreement does not satisfy the requirements under Part 8A, it does not mean that the client need not pay to the lawyer any fees. The client will still have to pay the lawyer what is accessed as reasonable fees payable by clients to their own lawyers as if there is no CFA.
Under the Regulation, a lawyer must provide certain key information about the CFA to the client. They are information about: (a) the nature and operation of the CFA; (b) the client’s right to seek independent legal advice about the CFA; (c) the uplift fee not being recoverable from any losing party; and (d) the client still being liable to the other party for costs ordered against the client by the arbitral tribunal or the SICC.
The CFA must also set out:
(a) The circumstances or conditions under which the client has to pay to the lawyer his fees. This will include arrangements about the base legal fees, the disbursements and the uplift fee.
(b) How the uplift fee is calculated and an estimate of the range of the uplift fee. There is no prescribed limit to any uplift fee other than the usual ones concerning overcharging.
(c) A mandatory cooling off period of 5 days during which either party may terminate the CFA by written notice.
(d) That any changes to the CFA must be in writing and signed by all parties. The changes to the CFA that relate to costs must have a 3 days cooling off period.
(e) That, if the CFA (or its changes) are terminated by the client during the cooling off period, the client will only be liable for costs for work done by the lawyer during the cooling period that was expressly instructed or agreed to by the client.
The Benefits
CFAs are not suitable for all cases. Clients with a meritorious SICC or arbitration case but face temporary liquidity or cash flow issues (as an example, because of the pandemic) can work with their lawyers to craft a CFA that is a ‘win-win’ solution for all parties concerned. CFAs are also a tool for sophisticated commercial clients to work out alternatives with their lawyers to manage legal cost risks.
CFAs do not just benefit potential claimants of a case. With some creativity, CFAs can also be used for potential defendants of the right case to manage legal cost risks.
Although CFAs are new in Singapore, they are already used in many civil law countries and are expanding in several common law countries. We share the knowledge and experience of our PracticeForte Affiliates in such countries. Our clients can benefit from our shared knowledge and experience in this space. If you want to find out more, do contact us at enquiries@otp.sg.

Lim Seng Siew is the co-director and Head of Civil Disputes and Technology Practice at OTP Law Corporation. For his full CV, please click here.

By Isabel Chew-Lau of OTP Law Corporation, an affiliate of PracticeForte advisory

Part One: My pregnancy and birth journey

I was not ready to be a mum when my husband and I got married in November 2020.

We were only 26. Most of my friends in law school were still unmarried; in fact, my close friends were mostly single. We were living with my in laws, since our BTO flat was still being built and key collection had just been pushed back given COVID. We wanted time as a newly-married couple; we hadn’t been able to plan a proper honeymoon because of COVID-19. In fact, I only took 3 days off after the wedding, part of which I spent drafting last-minute costs submissions.

I was barely 3 years into legal practice. Just starting out my legal career, on the cusp of finding some footing as to who I am and what I want to achieve as a lawyer. Much of the time, I still felt like a baby fish in a field of sharks, relying on preparation and mentorship to equip myself. I was riding all the ups and downs that came with litigation – trying to focus on the “ups” while building a thicker skin against the “downs”.

Two months later in January 2021, I discovered I was pregnant. I broke down upon this discovery. I felt clouded by fear, anxiousness, worry. In those early days, my emotions were almost entirely negative. I was not ready.

I broke down again when I told my in-laws and my parents. Again, when I confided in my firm’s paralegal (who is like a second mum to me at work). I tried to keep the news from my boss in those first two weeks, half hoping the news wasn’t true. But like a bloodhound, she managed to sniff out the news – even in the thick of COVID-19, when we were all working virtually – forcing me to “fess up”.

I broke down again. Even despite my boss’ enthusiastic response, I knew (or maybe was projecting) that the news complicated hopes for my career – not just mine, but the firm’s, including plans for me to step into a larger role i.e. directorship eventually.

I shared the “what ifs” that had been buzzing at the back of my mind: Namely to do with the worry that I could not be both a hands on mum and a lawyer. If I was already finding work tough, having a young child that I will be devoting substantial time to would make it even tougher. There was no way I could operate at the same level at work. Something had to give.

My boss’ response, having not had a kid but having seen those before me do precisely that, was “why not”? My response: I did not feel ready.

I was not ready to deal with pregnancy itself.

First, the lethargy that accompanied the first trimester; admittedly, there were a couple of days when I had to crash for a post-lunch nap in order to make it through the work day (yes, one of the perks of working from home).

Worse, the nausea. Thankfully I was not one of those constantly hugging the toilet. But still, my complete loss of interest in food made me feel like an entirely different person. I lived almost exclusively on a diet of bubble tea only on some days. The loss of appetite was ironically accompanied by hunger pangs (including in the wee hours) that brought on gagging and throwing up. As many would concur: it was no fun.

My mind continued to be plagued by worry about realistic, practical matters (childcare, work, my marriage, finances) and those not-so-realistic.

I was not ready when, toward the end of my first trimester, I receive a test result showing higher-than-expected markers for Downs’ syndrome.

I did not expect the mental toll these emotional upheavals and physical changes took on me. I like to see myself as somewhat “gung-ho” and hate to admit when I’m scared of a challenge – but if I’m honest with myself, I have a tendency to worry more than necessary and overthink things.

The “downs” at work – which I was by then accustomed to –

• being faced with a judge’s impatience
• having the court give a direction or order against my client
• having to manage my client’s expectations or convey disappointing news
• answering the same client’s questions for what felt like the hundredth time or responding to their late-night “urgent” emails
• fielding numerous acrimonious letters from the other side
• small corrections from my bosses, or a sharp word
• meeting tight deadlines (especially if I had procrastinated about them before)
• missing out on an important point in my submissions that I was only able to correct at the last minute
• Etc…..

– seemed, on some days, to become potholes of despair. I felt even more anxious than before, and even less resilient.

But I was lucky enough to have a partner who amazed me with his patience, understanding and confidence in us as parents. Physically, I was thankful for a smooth second and third trimester. Importantly, I had supportive friends and family, whose delight at the news helped change my perspective to see our child as a blessing even if his appearance was earlier than planned.

My colleagues made it a point to check in on me, especially during our weekly Zoom meetings. I did not know how to convey how I was really feeling or the extent of my anxiousness. To some degree, I felt like I should not be too open with the same, thinking it may impact on the trust in me especially when the work-from-home regime made it harder for my bosses to keep tabs on me. But there were bright days when we met up at the office and, having not seen each other for some stretch of time, we would spend hours catching up – maybe not productive, but overall definitely positive.

In a bid to further quell the anxiousness of being a first-time mother, I threw myself into what I knew: Preparation.

I spent hours (and some pretty bucks) finding, watching, reading books and resources online about pregnancy and birth – from birth courses, to others’ birth experiences, the latest research on natural birth aids (Dates? Kegels? Perinneal massages?), even “hypnobirthing”. I talked to friends and cousins and prepared a detailed birth plan. I dipped my toe into the endlessly wider world of early childcare – from the basics to baby sign language, Elimination Communication training, baby-led weaning, Montessori philosophy and the like. Materially, I was thankful to have a friend and older cousins to pass me some hand-me-downs, and a husband who catalogued and compiled lists of what we have and what we still needed (though I admit towards the end, my oversight could at times be slightly overbearing).

Save for this, I continued working as before. My boss even mentioned that my work output was the same as if I were not pregnant. I was relieved. But it also made me worry all the more. I heard in that statement the expectation that things at work would not change after I gave birth.

I was still not ready for the birth. The Sunday before, we had moved into my old room in my parents’ place in preparation for his arrival. The room was a mess: Packaging from our countless online baby purchases strewn all over the floor, our clothes still in suitcases, baby’s items pushed haphazardly anywhere there was space “for now”. Our hospital bag was not packed.

I told myself we had time. I reasoned that both my husband and I were busy with work, we could push back the packing till the next weekend.

Speaking of work: I had listened to fables of other lawyers conducting meetings or drafting submissions and judges writing their grounds of decision while in the labour ward or recuperating from delivery – with a mixture of respect and horror. I had no doubt in the truth of these heroics. But I was not up for that. I needed those first few weeks after the birth more than work needed me. Internally, our team had prepared for my maternity leave.

I knew this. Yet I felt unsettled (more so than I should have, thinking back) at entrusting my matters and clients to my colleagues – no matter if they were more capable, more familiar or even more senior than me. It was the inner control freak in me that was acting up, riled up by everything else I felt I could not control.

To cut a long story short – the birth itself was a mad rush. Like everything else before, I was not ready.

That Thursday, I woke up at 5am with what I thought were simply low-level cramps, started my handover list for work, conducted a meeting in the office in the afternoon (with a client whose ancillary matter hearing was to take place 5 days later), went ahead for dinner planned with my colleagues and ex-colleagues, and walked to dessert after that. It was only after I started being unable to concentrate on the conversation that I went home.

I resisted going to the hospital until 10pm; when I was checked at 11pm, I was already 4cm.

From there on, my recollection of events isn’t the best. Yes, it was painful. While I had repeatedly told myself that I would take an epidural if I needed it, I hoped (and was quietly determined) not to get one. Time passed slowly. There were a few notable events mostly centering around vomiting.

As before, however, my son came quicker than expected. He was born at 1.37am.

That was when I was born too – into my new identity as a mum. That was when my whole life changed (cliché as it sounds).

And that is where I will have to end Part 1…

Because I desperately need direction and have been working on this for too long….

This article is written by Nur Shukrina Bte Abdul Salam, trainee at OTP Law Corporation

This article is Part 2 of an article on the Key Amendments to the Women Charter. You can read Part 1 here. 

III. Enforcement of Custody Orders and Child Access Orders

Post-divorce, parties may encounter problems relating to custody, care and control, and child access. Since the Circuit Breaker in Singapore, some parents who were granted access to their children realised that their spouses who were granted care and control, had used the pandemic as an excuse to block access.

As a result, one parent may not be able to see his or her child for months. This is contrary to the best interests of the child. As enumerated by the family justice court on several occasions, it is in the interest of the child to have both parents in his or her life. Exceptional circumstances aside, children often need the guidance of both parents in their lives and should be afforded the opportunity to have a healthy relationship with both parents.

As such, in line with therapeutic justice’s forward-looking approach, the court’s enforcement powers in relation to custody orders and child access orders have been expanded. Sections 126A and 126B empowers the court to enforce custody and access arrangements that enable children to have both parents in their lives. The court may also order for parties to undergo support programs that will improve their co-parenting relationship.

A. Enforcement of Custody Order- s126A

Under the new section 126A, the court is empowered to direct the bailiff to restore a child to the physical custody of the person in whose custody, or care and control, the child is placed.

B. Enforcement of Child Access Order- s126B

Where an access order under s126(2)(d) has been breached by a parent who has care and control of the child, the parent who has been denied access can apply to court to enforce the access. The court may do all or any of the following:

1. order additional access to the child to make up for the access denied to the relevant parent as a result of the breach;
2. order for the parent with care and control to compensate the parent who was denied access, for any reasonable expenses incurred as a result of the breach;
3. order the parent with care and control, the parent who has been denied access, and the child (or any of them) to attend all or any of the following:

(i) Counselling;

(ii) Mediation;

(iii) a therapeutic or an educational programme specified by the court;

(iv) a family support programme as defined in section 139A;

(v) order the parent with care and control to execute a bond, with or without sureties or security, as the court may determine, to secure his/her future compliance with the access order;

(vi) for every breach of the access order by the parent with care and control, sentence him/her to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 12 months or to both.

IV.  Programmes for Children and Family Support

In line with therapeutic justice’s aim to provide therapeutic support to parties, and improve access to relevant and digestible information, the amendments to the Women’s Charter includes an expansion of programmes for children and families.

Under the new section 132A, if the court finds that it would be beneficial for the children to attend the programmes for children, the court may advise parties in matrimonial proceedings to ensure their minor children complete the prescribed programmes. Programmes for children are available for prescribed classes of children, and aim to help a child handle the impact of the judicial separation, dissolution, or annulment of his or her parents’ marriage.

The new Part 10A (comprising new sections 139A to 139J) on the amicable settlement of disputes expands the available family support programmes. Under the new s139C, the court may appoint conciliation officers to settle differences between husbands and wives. Under the new section 139F(2)(d), the court may advise parties to attend a family support programme to facilitate a possible reconciliation. Under the new sections 139I(2)(b) and 139J(2)(c), the court may advise prescribed persons (in addition to the persons mentioned in those sections) to attend a family support programme.

According to the infographic released by MSF, an example of prescribed persons are grandparents. Since it is common that grandparents are caretakers and often provide support for children of divorced parents, it would be in the best interest of the children to have grandparents undergo family counselling and support programmes as well. Grandparents often play a significant role and can have a big influence over the children’s perception of their parents, post-divorce. As such, grandparents ought to be involved and encouraged to positively influence the relationship between the children and their divorced parents.

Additionally, the Mandatory Parenting Programme (MPP), which is currently not required for couples divorcing under the simplified track, has been expanded to include all divorcing couples with minor children. 

V.  Other amendments to the Women’s Charter

Apart from the above changes, there are two other amendments which are of note.

Firstly, pursuant to the new Section 24, remote solemnisations are here to stay! The Registrar may give permission for a marriage to be remotely solemnised using a live video or live television link if the parties to the intended marriage, the person solemnising the marriage and the witnesses will be in Singapore during the solemnisation. Additionally, the Registrar must be satisfied that there are exceptional circumstances that prevent the parties from solemnising their marriage in the presence of each other, the person solemnising the marriage or the witnesses, and it is otherwise appropriate to give permission.

Secondly, the new section 50(1) enshrines equal rights between married men and married women. The new provision states as a general principle that the rights, privileges, powers, capacities, duties and liabilities of a married woman are the same as those of a married man, unless otherwise provided in any written law. This is in addition to other provisions which have already existed under Part 6 of the Women’s Charter, that sets out the rights and duties of husband and wife. However, it should be noted that Part 6 is now divided into 3 divisions, and s50(1) has been placed under Division 2, called the “Abolition of common law disabilities imposed on married women, etc.”. It is evident that this amendment and inclusion of a general principle, is the legislature’s attempt at abolishing some of the outdated concepts that previously disadvantaged married women.

VI.  Conclusion

The Women’s Charter (Amendment) Bill has been passed but has yet to come into force. Only time will tell if the new changes will help our court in its objective to further therapeutic justice in our family justice system.

In this author’s view, these changes are a step in the right direction. It is hoped that for those whose marriages have irretrievably broken down, the process will be made less painful; for children of divorced parents, the support programmes will allow them to better maintain good relationships with both parents; and for lawyers in family practice, these changes will allow them to offer their clients various options in achieving a peaceful approach and fair resolution.

This article was first published by OTP Law Corporation. 

By Nur Shukrina Bte Abdul Salam, Trainee at OTP Law Corporation (PracticeForte Advisory Affiliate)

The latest amendments to the Women’s Charter and other programs supporting families, were motivated by the government’s “priority to save marriages where possible”. However, where divorce is inevitable, the priority is to have “therapeutic justice and child-centricity be fostered and brought to the fore to reduce acrimony, bring about healing, and allow divorcees and their children to move on.”

But, what is “therapeutic justice”, and how do the recent changes relate to it?

Therapeutic Justice

According to the court in VDZ v VEA [2020] SGCA 75:

Therapeutic Justice is a lens of ‘care’.

As early as possible, parties must be able to comfortably reach therapeutic interventions and support (e.g. counselling to help parties let go and move on), and access relevant and digestible information on the processes. As part of counselling, parties must be made to understand the real consequences of breakdown and the impact on their children.

When obtaining a divorce in court, parties should not see each other as adversaries, but rather as joint problem-solvers.

Therapeutic Justice seeks to address the family’s inter-related legal and non-legal issues to reach an outcome that improves the whole family’s functioning beyond breakdown. Parties should be assisted with developing their skills to resolve their own disputes, to co‑parent, and to be familiar with how to access appropriate support services, post-divorce.

The recent changes to the Women’s Charter are in furtherance of therapeutic justice as they:

1. provide couples, children and other related parties with more robust support early on;
2. provide an avenue for parties to get divorced without having to make allegations that will shed a negative light on the other party and worsen parties’ relationship; and
3. provide the court with broader powers to help parents co-parent fairly after the divorce.
4. Divorce by Mutual Agreement (“DMA”)

The most notable amendment to the Women’s Charter is the addition of the “divorce by mutual agreement” fact, that can be relied on by parties seeking to prove an irretrievable breakdown of marriage, in order to obtain a divorce. According to Ms Sun Xueling, Minister of State for Social and Family Development (MSF), the new option would thus add a form of “therapeutic justice” in the family justice system, while maintaining safeguards to protect the institution of marriage.

1. What is the DMA?

Under the new s95A(1)(f), read with s95A(6) of the Women’s Charter, couples who mutually agree that their marriage has broken down irretrievably have to submit a written agreement to the court stating:

1. The reasons leading parties to conclude that their marriage has irretrievably broken down;
2. The efforts made to reconcile; and
3. Considerations given to the arrangements to be made in relation to the parties’ children and parties’ financial affairs.

The court must consider these matters in deciding whether to exercise its powers under Divisions 3 and 4 of the new Part 10A (on amicable settlement of disputes), e.g., to permit the parties a chance at reconciliation or to advise the parties to attend a family support programme. The court must not accept any agreement if the court considers that reconciliation is reasonably possible.

A reason that could be used to substantiate a divorce by mutual agreement, is a “deep-seated difference in values”. Children should not be cited as the reason for divorce.

1. Will the DMA cause a spike in divorce rates?

There have been concerns over the DMA option making it easier for couples to obtain a divorce, thus eroding the sanctity of marriage and raising divorce rates. However, Ms Sun stated that, Singapore transitioned in 1980 from a purely fault-based to a hybrid regime with no-fault grounds (i.e. 3 or 4-year separation), and introduced the simplified divorce track in 2015. Ms Sun highlighted that here were no significant increases in divorce rates in both instances.

Moreover, the safeguards in the current divorce framework will also continue to apply – this includes the three-year minimum marriage period before divorce can be filed, and the three-month period before the divorce is finalised.

1. How does the DMA “add a form of therapeutic justice in the family justice system”?

Ultimately, the DMA option is aimed at reducing tensions and protecting the children’s interests. Not having to state the fault of a divorce and prove allegations, may spare children the trauma of acrimonious divorces and prevent the destruction of children’s good opinion of their parents. It will also hopefully preserve parties’ relationship and enable them to co-parent peacefully after the divorce.

While the DMA option is similar to the 3-year separation fact under s95A(1)(d), the difference potentially lies in parties not having to separate themselves in the 3-year period if they wish to proceed under the DMA option. This means that parties may be able to make efforts to reconcile while maintaining a normal family life with their children. Unlike the separation with consent option, parties divorcing by mutual agreement may not be required to have led separate lives for 3 years (e.g. not going on family holidays together, not cooking or doing laundry for the other party, not staying in the same room).  By maintaining a nuclear family lifestyle despite the breakdown of the marriage, parties going under the DMA option may be better able to shield the children from any marital problems they may be facing.

Even if there are no children to the marriage, the DMA option provides parties with more autonomy as to how they wish to maintain their relationship in light of the breakdown of the marriage. Parties who do not have to separate under the DMA option, may be better able to maintain a pleasant relationship and approach divorce with peace and understanding.

It should be noted however, that the extent to which parties must prove effort to reconcile, is unclear. If the threshold to prove such efforts is set too high and the court’s assessment of ‘reasonable possibility’ of reconciliation under s95A(6)(c) is applied broadly, it may make it difficult for parties to fulfill the requirements under the DMA fact.  This may then render the new DMA fact otiose and parties would have to fall back on other facts to prove an irretrievable breakdown of marriage.

1. New section 100A- Rescission of interim judgment in certain circumstances where one party misled by other party

While divorce with consent or mutual agreement helps reduce acrimony between parties, it may lead to undesirable outcomes if one party has misled the other to procure that consent or agreement.

Fortunately, the new section 100A provides recourse for a party who has been misled by the other to give consent or agreement to a divorce under s95A(1)(d) (3-year separation with consent to divorce) or s95A(1)(f) (divorce with mutual agreement), and interim judgment has been granted.

Before interim judgment is made final, the party who was misled may apply for the rescission of the interim judgment. The court may rescind the interim judgment if the court is satisfied that —

1. the party who applied for divorce (X) misled (whether intentionally or not) the other party (Y) about any matter; and
2. Y took that matter into account in consenting to the grant of the divorce or agreeing that the marriage has irretrievably broken down, as the case may be.

This ensures that in the absence of consent, a party will be unable to circumvent the 4-year separation requirement and will have to rely on the other facts listed under s95A(1). With rescission of the interim judgment as an available recourse, the party who has misled the other party and the court will not be able to benefit from his or her own dishonesty.

This article was first published by OTP Law Corporation

By PracticeForte advisory affiliates Christian von Baumbach in collaboration
with Susan Tay

Pros of Online Mediation

If you are reading this article, then you are likely already a believer of mediation. Perhaps you have heard enough good things about mediation to want to understand more?

Nonetheless, it is still worthwhile to laud mediation. It is after all, THE modern, flexible, and effective process for solving disputes and making joint decisions in important matters. Through mediation, family members, colleagues, business partners – basically everybody who has an interest in respectful cooperative relationships – can potentially have meaningful discussions, gain a better understanding of each other’s perspectives and regain mutual trust. The goal of each mediation should always be to find enduring solutions that are in the best interest of everybody involved.

Generally, people meet physically in one room for a mediation. But what to do if large distances lie between them? Not always is it possible to travel for a meeting to another city or even country. In such cases online mediation might be a suitable option.

PracticeForte Advisory and its affiliates provide professional online mediations, and in the next 2 articles, we would like to highlight some of its challenges  (Part 1 here) but also its advantages.

Advantages

Easy Scheduling: In our own experiences, the time taken for a mediation in person to happen usually takes weeks if not months. The logistical needs include: coordinating at least 3 parties’ time table to physically travel to the venue; the availability and booking of the venue, staffing needs for requirements on food and printing or other amenities.

Videoconferencing is a matter of coordinating everyone’s schedule and it is easier because no travelling time need to be considered. We also don’t need onsite staff. All everyone really needs is a private space in your own home for the mediation to happen.

Costs: In an expensive city like Singapore, it can run to an additional sum of at least S$1000.00 just for the booking of the venue for mediation. That rate is for the availability of at least 3 rooms, a mediation room and 2 breakout rooms from 9am-6pm. Overtime rates will apply.

Then there is the travelling costs of all parties. Mediators will charge the parties their travelling and lodging costs if the mediation is to be conducted in another state or in another country.

Online mediation however can mean reducing these costs to mere tens of dollars. That is the subscription fee for a reliable videoconferencing platform.

Effective Videoconferencing Tools: With the massive uptake of videoconferencing facilities, providers are now equipped to improve the tools and we see many of these tools being added which greatly assist mediations.

These tools include breakout rooms where private caucuses can be conducted safely. The ability to share a whiteboard where agendas can be written for visualization and better clarity and understanding by parties. In addition to the ability to quickly share documents as most of us store our documents in our computers. These tools also facilitate quick drafting of settlement agreements.

Ways of Minimizing Cons: As more of us engage in videoconferencing, we find ways to minimize the discomfort of staring into screen for too long. 1^st, mediation online can be restricted to 2 hour per session. We will need a longer timeline, yes, but longer time can mean advantages. Parties have the time and space to think through what they want and whether the proposals can work. This will be less post settlement dissonance.

For security and confidentiality, there are ways to ensure 1stly that no one else is in the room. A 360 video run of the room has been employed by the courts in Singapore for instance to ensure that a witness standing for trial is by himself/herself. Why not for online mediation?

Conclusion

Many mediators may always prefer to meet in person because no matter how sophisticated or how easy it is for us to use videoconferencing, the rapport, empathy and natural setting of an in person meeting simply cannot be matched.

Yet, in cases where a physical meeting is difficult or even impossible, a meeting in a virtual environment provides a better than decent opportunity.

Perhaps it does not have to be an either-or question. Online mediation can be a good starting point to see if a mediation makes sense before the parties meet in a physical location. Vice versa, parties can first meet in presence and continue online at a later point.

What are your views on online mediation? We will love to have you share your experiences and ideas with us.

By PracticeForte advisory affiliates Christian von Baumbach & Susan Tay

Cons of online mediation

If you are reading this article, then you are likely already a believer of mediation? Perhaps have heard enough good things about mediation to want to understand more?

Nonetheless, it is still worthwhile to laud mediation. It is after all, THE modern, flexible, and effective process for solving disputes and making joint decisions in important matters. Through mediation, family members, colleagues, business partners – basically everybody who has an interest in respectful cooperative relationships – can potentially have meaningful discussions, gain a better understanding of each other’s perspectives and regain mutual trust. The goal of each mediation should always be to find enduring solutions that are in the best interest of everybody involved.

Generally, people meet physically in one room for a mediation. But what to do if large distances lie between them? Not always is it possible to travel for a meeting to another city or even country. In such cases online mediation might be a suitable option.

PracticeForte Advisory and its affiliates provide professional online mediations, and in the next 2 articles, we would like to highlight some of its challenges but also its advantages.

Challenges

2 Dimensional : The biggest challenge probably comes from the fact that virtual space is less dimensional and therefore hinders our verbal and nonverbal communication. The sound of the voice is altered. We usually cannot see the whole body. It is also more difficult to perceive subtle gestures or facial expressions. Therefore, it is harder to assess the emotional state. This can make it very difficult for us to evoke empathy for each other. It may also be easier to misunderstand each other.

We can improve the situation by using better tools, like high-quality microphones, cameras, and lighting, but we can never recreate the naturalness of a physical meeting.

Security: The technical environment is a risk to privacy and confidentiality. No network connection is 100 percent safe, and it is easy to make voice or video recordings of an online meeting.

All of this makes it more challenging to establish a secure environment and trustful relationship; whether  between the mediators and the parties or between the parties themselves. Trust is vital for every human relationship and therefore a core aspect of each mediation.

Attentiveness/ Distractions:  Videoconferencing fatigue is real. We tire much quicker if mediation is online than in person. Staring into the screen at faces and remaining fairly immobile for more than 1 hour can mean an intensity  that is beyond normal. This is magnified when you are also looking at your own face.

We thus experience fatigue quickly and get quite inattentive. It does not help when distractions are also much easier online than in person. You can be staring at a different screen or if you are looking down, you can be playing a game on your mobile phone. It is not easy to call someone out for being inattentive during mediations online as both the mediators and the parties want to keep the atmosphere cordial.

Conclusions On Cons: It is often shared that settlement rate for mediations conducted online are not as high as when it is in person. Our mediation experiences do testify to that.

Yet, we cannot deny that videoconferencing in such a big way is nascent, started only when Covid hits the world in 2020. In a generation when more and more are using the internet for communications, play and business, online mediation will be here to stay and flourish.

And as more and more online mediations enable parties to resolve their disputes, with no concerns over travel restrictions, geography, time and exorbitant costs, the statistics will also shift favourably toward more resolved cases.

In our next article, we will write about the advantages of online mediation which in our view, outweigh the cons.