The lawyer of yesteryears is trained to analyse a legal problem with a client and to come up with the best possible solution in the circumstances. Yes, there will be constraints of time and resources and the solution takes these into consideration. Because lawyering of the yesteryears is effort-intensive, it is expensive. That age of expensive lawyering is coming to an end for most legal situations. Sure, the top-end of legal work will still require such in-depth analysis. But for most consumers of legal services, this will be an overkill. “80% is good enough” I am told.
The End of Analog
The reason for the change? Like almost everything else in today’s world, it’s because of technology. Just like the big and bulk cameras making way to mobile phones for taking pictures, the digital age has also affected the delivery of legal services. And like in photography, technology has made it easier and cheaper to do so.
Just as computational photography and Artificial Intelligence, the new normals, have replaced the skill needed to operate the camera, so too has legal AI replaced some of the skills needed for lawyering. We are not quite at the level of photography but just give legal AI time. Legal AI can now spot errors much better than a person can. It can even analyse clauses that are unusual.
The latest tool from the State Courts and the Singapore Academy of Law – Motor Accident Claims Online, or MACO for short – can provide answers (albeit with lots of caveats and disclaimers) on who is at fault in a motor accident and the amount of damages likely to be awarded. I am sure MACO will improve with time.
Of course, we now say that while legal AI can predict outcomes based on past data, lawyering is also about exploiting the exceptions to the existing rules, something that AI is not good at, … for the moment at least. The AI will learn.
Introducing LaaS
So what is going to happen to the ‘bespoke’ (but in fact, run of the mill) professional services? Replaced by a simple query box. Enter the relevant information. Hit enter. An AI will give you the outcome of its analysis. Or better still, speak into your mobile phone (ala Siri or Google Assistant or Alexa) and the AI will give you its ‘opinion’.
MACO is probably the thin end of the wedge. In the near future, there will be simulators for contract claims, building & construction claims, matrimonial assets distribution, maintenance awards and a whole lot of other legal stuff.
So is LaaS the future? For those clients who say ‘80% is good enough’, Yes. But the client has to accept that the 20% that is not covered may actually give you the answer that you are looking for. The dilemma of the ‘unknown unknown’.
For those clients who want a complete answer, it will have to be the traditional lawyering as a service provided by a hot-bodied lawyer. At least for now.
Article By PracticeForte Advisory Affiliate Sylvia Tan
Psychologists are mostly trained in assessment and treatment of mental health issues. We undergo four years of undergrad training, two years of post-graduate studies and specialist clinical supervision before we can be registered with a registration board. Psychologists generally end up working in the hospitals, government services or schools, working with individuals with mental health issues such as depression, anxiety, trauma, phobias, etc., through talk-therapy, using evidence-based therapies like Cognitive Behavioural Therapy (CBT).
While mental health treatment is usually what psychologists specialize in, some choose to work in the psycho-legal field of family law i.e. working with families undergoing divorce. This is because family breakdown and family conflicts are gateways for mental health issues to develop in children as well as adults. Research has found that children from families of divorce are two times more likely to develop mental health issues than children from intact families. Adults undergoing divorce extreme high levels of stress, which can develop into mental health issues, such as depression or even suicide. Hence, with their training in mental health, psychologists can play a critical role in supporting families undergoing divorce to help mitigate the devastating effect of mental health issues on families.
Psychologists, with their training in assessing and treating mental health issues, can identify “red flags” in a client’s mental well-being. Early identification of warning signs and early intervention can prevent long term mental health issues or devastating outcomes such as self-harm, suicide or even homicide in extreme cases.
Psychologists who work with kids will be able to support children with tools and skills in coping with their parents’ divorce. Without understanding of their parents’ divorce and the right support, children end up being triangulated between their parents, and this can result in chronic stress, depression, and symptoms of anxiety.
Apart from playing the role of a treating specialist, psychologists can provide consultation to parents regarding parenting issues for their children. With their training in child development, psychologists are equipped to identify what are the developmental needs of children, and therefore can provide sound advice for parents in making appropriate parenting plans for the children. Divorcing parents who are focused on making sure that their children’s developmental needs are met, will benefit from seeking consultation with a psychologist who is well-versed in divorce related issues such as overnight access for children, shared parenting, parental alienation and relocation.
Sylvia’s vision of collaborative practice
Parents should remain as parents, and they should retain their rights as parents as much as possible. To me, parents lose their parental rights when they surrender their decision-making rights to the hands of the court. While the court has its place in helping divorcing parents make decisions for them when their conflict is intractable, parents should try to avert using the court as a resort to resolve their custody disputes, because as soon as they do that, their rights as parents will be stripped off from them once the court steps in to adjudicate the matter.
Therefore, parents who believe in preserving their autonomy and rights as parents, should direct all their energy into resolving their divorce issues outside of court through mediation as the only resort. Mediation has been found to have much better and long-lasting outcomes for children than children who have experienced protracted and acrimonious litigation. Hence out-of-court mediation would be the ideal, if not the best solution for parents. Engaging a mediator to resolve a divorce dispute, is akin to having a bridge for two persons to reach an agreement for their divorce. To me, the mediation bridge can be strengthened with another layer of support through inputs from a psychologist. Parents feel that they need professional inputs into how they can divorce in such a way that their children will be protected and not be harmed in the process, involving psychologist in the mediation process is a very practical, logical and cost-saving process for parents.
Therefore, when parents opt for out of court mediation, I would recommend for parents to involve a psychologist in the mediation process, to act as a neutral professional to give sound parenting plan advice. This can help with any impasse in mediation, especially when parents are in disagreement about the needs of their children. The psychologist and mediator can work hand in hand, together with the parents, helping them find workable and child-centered solutions that will be therapeutic and catered to their children’s developmental needs. This process is least stressful as parents can have their say, and parents are able to exercise their full legal rights as parents. Mediators’ partnership with a psychologist is therefore a much stronger bridge and a better way to go for a peaceful and child-centered divorce.
Article by PracticeForte Afrfiliate Christian von Baumbach
In conflicts, as in all aspects of human life, there is a close connection between body and mind. A fight is never solely physical or mental, it is always both.
The Japanese martial art of aikido allows us to observe conflicts from an interesting perspective. The fundamental principles are learned and experienced through physical training, but the goal is the transformation and development of the mind.
In this article let us look at some principles of Aikido and think about what we can learn from these for dealing with conflicts in general.
The focus of aikido is not to defeat one’s opponent, but to defeat oneself. Consistent practice enables a person to overcome his or her own weaknesses and to bring body and mind into harmony. This also makes it possible to appear peaceful to the outside world and to approach conflicts confidently and in a respectful manner. Violence should never be requited with more violence. True martial arts represent the path of peace and harmony.
Similarly, mediation is not about winning. It is about self-reflection, mutual understanding and jointly finding a way out of a difficult situation. For the mediation to be successful the parties also need to overcome their own fears. The key to success often lies in themselves, not in their opponent.
KI AND BREATHING
Central to all aikido techniques is ki. Ki signifies the life force that is inherent in every being and it is intimately connected to breathing. The word aikido can be translated as the art or the way (do) of aligning or harmonising (ai) life energy (ki).
Aikido techniques are most effective where the application of force and one’s own intention are not directed against the force and will of the agressors, but rather flow in the same direction. Strikes to the face are not blocked but are guided further in the same direction by skilled evasion, causing the agressors to lose their balance and the aggression to flow into the void.
Similarly, mediation is also about overcoming real or perceived opposites by looking at all the aspects and reconciling them in a creative way. It is possible to forcefully block a verbal attack and to counter it with a brutal “counterblow”. Another option is to gently evade the attack, to understand what lies behind it, and then to look for arguments that do not oppose the “agressor’s” intention, but that in fact even support it. If I look for answers as to where the aggression is coming from and thus offer solutions that do justice to my counterpart as well as to my own needs and interests, if, in other words, our ki is in harmony and in alignment, then the conflict can be elegantly resolved.
ZANSHIN
Zanshin is a Japanese term that can translated as “remaining mind”. The first character “Zan” means to linger or remain and the second character “Shin” means heart and also soul. Zanshin is a physical and mental state of focused attention after a technique or action is performed. It involves staying connected with one’s counterpart and being prepared for surprises. To achieve this, one’s own feelings must be kept under control and the opponent must be taken into consideration and shown respect.
Parallels can be drawn here with active or empathic listening in mediation, where the attention is focused on the mediator to understand and qualify what is being said. It is equally as important not to judge the mediators and to allow them the opportunity to express their feelings honestly. Only in this way is it possible to create a safe space in which the search for consensual solutions can succeed.
POSTURE & POSITIONING
One’s own posture and positioning in relation to the opponent are decisive elements in a fight. Only someone who has stability can act in an effective manner without becoming unbalanced. The distance between the opponents deserves special attention. In Japanese martial arts, the term “Ma-ai” is used to describe the proper distance: far enough away so as to be able to respond to any aggression in time, but close enough to remain in contact with the opponent and to be able to use one’s own techniques most effectively. The ability to sense the opponent’s intention and the appropriate reaction to it are crucial: if my opponent moves away from me, then I follow him. If he comes closer, then I move away. If he is circling around me, I turn to face him. This means that I am following my opponent’s intention, but not in order to admit defeat, but rather in order to maintain my own position and retain my ability to act. Aligning oneself with and towards the opponent is not a sign of weakness but is, on the contrary, a basic prerequisite for protecting oneself.
Being able to sense people’s intentions and react accordingly also belongs to a mediator’s repertoire. Posture and positioning can also be of key importance in mediation. Maintaining an upright posture and standing or sitting in a stable position is beneficial because it facilitates breathing, promotes circulation and gives a better overview of what is happening.
When mediators consciously use their bodies, for example by clearly turning towards the individual interlocutors and adjusting the distance depending on the situation, they are able to enhance the effect of communication techniques. Just as important, in a figurative sense, is to develop a trustful, close relationship on the one hand, and to maintain a professional distance on the other.
MARTIAL ARTS IN VERBAL CONFLICTS AND IN MEDIATION
Akido training instils an awareness of the dynamics and fundamental coherences of conflicts. It shows the importance of inner calm, deep breathing and an upright posture, as well as of concentration and mental and physical flexibility. Practitioners of Aikido are well aware of how painful it is to react to an attack with rigidity and force, and how effective it can be to first sidestep and then react to the attack from a different angle.
The same applies in a verbal conflict. A forceful and aggressive counter-argument can hurt our “opponent’s” feelings, push him into a corner and end up escalating the situation. In such cases, it is often better to first retreat or to avoid the situation. This alleviates the tension and allows for a constructive resolution of the supposed contradictions.
In this episode, Chloe Chua interviews Rodel Taton – cross-border legal practitioner and Dean of the Graduate School of Law at San Sebastian College Recoletos, Manila. Rodel shares why he is the 1st port of call for communities who encounter legal issues in a foreign land, particularly for Filipinos in Singapore or Singaporeans in the Philippines. Tune in and find out more about your right to representation, how to get legal help and what are some alternative ways to resolve your dispute!
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan.
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan. We are writing about yet another collaborative initiative we call PF Restructure. You can read more about this at this link. This article focuses on cases before the Family Justice Courts. Pre-writ means before one files the writ for divorce.
This article stresses why resolution is best done outside the courts especially even before you file your writ for divorce.
Introduction – By Ms Susan Tay
I was reading one of Stephen Walker’s writing when I came across this question he asked of lawyers:
What do clients really want deep down?
And this was what he said:
No solicitor has ever said that their client came into their office and said what they wanted was two years of litigation with an uncertain outcome and a large bill plus an unquantifiable level of risk, anxiety and wasted time. What they say they want is either:
• Revenge, justice or money. That is at the beginning of the dispute. But after the initial expression of outrage, as the City of London Survey results show, they just want an early solution that brings certainty.
OR
• To ‘just make this problem go away’.
And when inviting parties to consider the benefits of settlement ask them to remember that no one’s last words are: ‘I wish I’d spent more time in court’.
Why Outside Court and Pre-Writ?
There is really only 1 simple answer: To save resources, heart ache and acrimony. 3 areas that one tends to grossly underestimate until they are thrown into the throes of a highly contentious court proceedings, especially divorce.
In the heat of litigation, words will be used as weapons, mud will be slung. And it will take some super human power to forgive and forget. That is why, you will want to see if you can talk before bridges are completely burnt and decent conversations become impossible.
Pre-Writ
In an ideal situation, parties should always try and talk through any and all issues that will affect them and their children before they decide they should end their marriage. If they can agree on all issues, that’s 100/100.
Pre-writ as we have stated in the preamble of this article, means before writ of divorce literally. What it really intends to convey is this: to have all issues resolved even before anyone files for divorce.
6 years ago, the Family Justice Courts introduced a process to expedite a divorce application if parties were able to agree on all issues, pre-writ. For the 1st time, there was no need to attend court to have your divorces pronounced. Technically, you would only need to meet your lawyers 3 times. First time, to give instructions. Second, to sign all the papers for filing and the last time, to sign your affidavit so you can get a hearing date. A hearing date where there is no hearing really because your orders will be granted according to the agreement that you have reached with your ex-spouse.
The critical element for a simplified divorce is of course an agreement reached pre-writ.
Simple? Not quite.
Pre-Writ Done Wrong
Is simplified divorce really simple? I said not quite because as a family lawyer, I have had many clients coming to see me about unravelling all sorts of pre-writ agreements. Many said they signed without advice, or under duress or were in such a state emotionally or mentally that they did not fully appreciate what they were agreeing to. And then there were those who came because they regretted and often enough, because they changed their minds. Is that wrong? Can I not change my mind? You ask.
First, I want to acknowledge this. The one common thread running through the majority of all my divorce clients is the emotional roller coasters they go through. And the myriad of “decisions” they come to whenever they are in certain states of emotion. I want revenge and I will accept as long as the terms hurt her more than me. I am so tired, let’s just give him what he wants and end it now.
But will the court understand and appreciate this enough to allow you to unravel an agreement? Definitely not when you tell the court I made these decisions when I was hurt/tired.
Then there are those who come to me after they have signed the agreement, obviously not knowing what their rights are nor completely understanding what they have agreed to. Yes, I felt guilty. I had a transgression and now I just want to give her everything she wants including the house, the car, 80% of my monthly pay-check. It’s even ok that I don’t get to see the kids. Soon enough, the realisation that such an agreement is simply not workable strikes.
That is why in many of my articles, I often stressed “not just any settlement, but an enduring settlement”.
Even if you have good grounds to invalidate an agreement reached, imagine the litigation nightmare you will have to go through. Explaining to the court why the agreement that you had signed should not bind you is not going to be a walk in the park.
So why not try doing it right the 1st time around?
Pre-Writ Done Right
Eyes Wide Open AND THEN Eyes Wide Shut? Ingredients For An Enduring Agreement
These are 3 main ingredients for a good decision. One, your decision must be an informed one, two, open and honest dialogues between parties and finally, make the decision when you are not experiencing extreme emotions. You can go in with your eyes wide open by:
1. Knowing the full facts (e.g. exactly how much each other earns), understanding what the law is (e.g. no child access to the other parent just because he cannot pay child maintenance is never going to get the green light from the Courts); that is part of an informed decision.
2. Having open and honest dialogues with each other. Understanding where each other is coming from. Asking important questions like WHY?
Having reached a settlement, many of my clients accept that they may be getting less or paying more and compromising. Importantly, however, they are OKAY and can live with that. That is what I will call an Eyes Wide Shut decision.
This kind of decision can be enduring when you know the facts and understand the law before you accept the compromised settlement. I have come to appreciate that clients accept the compromises they come to because there is always a side of the story that the law may not accommodate. For example, a parent who is planning to remarry may not get the blessings from his/her new spouse on access to the child of a previous marriage. And so, he may not want frequent access. And the other spouse is ok with this because her/his new spouse gets on famously with the child and is prepared to accept the child as his own. It is not always a sad case of neglect or being unwanted. This is a reality that may work well in the end.
Finally, I come to the trickiest of the 3 ingredients,
3. Make that decision when you have thought it through and are unencumbered by extreme emotions.
This third element is the one I find hardest to overcome without help. And this is where I will leave you in the good hands of counselling psychologist, Ms Sylvia Tan.
Preparing Yourself Emotionally For An Agreement – By Ms Sylvia Tan
Going through a divorce is one of the most traumatic and distressing experiences. The emotional pain of ending a marriage can be so intense that some people struggle to get through the day. They may find it hard to get out of bed, take care of themselves or attend to their kids.
Intense emotional pain can be accompanied by feelings such as stress, anger, sadness, sorrow, guilt, and shame. Emotional distress can also manifest into psychosomatic symptoms such a heaviness of heart, chest tightness, muscle tension, headaches, heart palpitations, insomnia or fatigue.
Experiencing intense levels of emotional distress at the brink of divorce or at early stages of the divorce proceedings is not uncommon. The frequency and level of intensity of distress varies with different people, and it also depends on factors such as reasons for divorce, duration of marriage, whether there are children in the marriage and the ages of the children.
To prepare oneself emotionally for an enduring agreement, one needs to understand the physiology of emotions, so as to know what can be done. When you are in a state of emotional distress, your emotional part of the brain, which is the limbic system is most activated and the executive functioning part of your brain, which governs rational thinking and decision making is the least activated. Thus the saying “do not make any decision when one is emotional” because the rational part of the brain is not performing at its best when you are in an emotional state.
If you are in emotional distress when you are trying to resolve issues or come to a settlement, it is not likely that you will be able to conduct the discussions constructively and objectively. It is also not likely that you will make sound decisions. Personally, I have seen many parties come to an unsatisfactory agreement because one or both parties were either too emotional during their discussions or when there were unresolved emotions at play. If you find that you are in an emotional place, processing your emotions is probably one of the best things you can do for yourself. It not only helps you move past any emotional road-blocks, it can also help you have clarity of mind, so that you are ready to work out an agreement.
What does processing your emotions mean and why is it helpful to do so?
“Processing your emotions” is about bringing to awareness what feelings you are having, why you are having those feelings and how to cope with the feelings in a healthy and adaptive way. Having intense emotions is not bad in itself, but if emotions are left unprocessed, they can be stuck in repetitive negative cycles of anger outbursts, depressive episodes or apathy. It can also leave you stuck in an unconstructive perspective and leave you feeling insecure, anxious or fearful. In dealing with strong emotions, people tend to avoid feeling their feelings and use maladaptive coping strategies such as drinking alcohol, numbing oneself in front of the television, gaming or working excessively. Long term use of maladaptive coping strategies is not helpful and in fact can result in deterioration of mental health, relationship with others, as well as parenting.
How to process emotions?
Working through or processing emotion is part of emotional healing. Just like attending to an infected wound, you would first need to assess how bad the wound is, clean out the wound, apply antiseptic to the wound, bandage it up and let it heal.
Similarly, processing emotion involves the following steps:
i) Step 1: Notice and identify your emotions
The first step to emotional processing is to notice and identify your emotions. What emotions are you experiencing? Is it hurt, anger, rage, regret, shame? The stage here is to just notice. You may also notice where in your body you are having those feelings. Are those feelings in your chest? Stomach? Throat?
ii) Step 2: Be curious about your emotions and notice what thoughts are accompanying the emotions
The next step is to be non-judgemental of yourself, allow those feelings to be present and be curious about your feelings. You may ask yourself these questions to go deeper into processing your emotions: (if you are feeling very emotional, you may want to just take a few deep breaths, wait for your emotions to subside first, then come to these questions) • What has happened that led me to feel this way? • What was I thinking at that time that made me feel this way? • What do I believe about the situation that is causing me to feel this way? • What do I believe about my ex-spouse or myself that led me to feel this way? • What does that situation mean to me at this point in time? • What do I feel like doing with these emotions?
iii) Step 3: Reflect on your thoughts and feelings and make a choice that is realigned with your values and your child’s best interest
This is the step which I believe many people struggle with. It requires more soul searching and reflection of thoughts and beliefs. Our thoughts and feelings, while they are ours and we have rights to them, are not necessarily helpful or beneficial. In psychology practice, we help people identify unhelpful or distorted thinking that are causing havoc on people’s emotions and relationships. Once an unhelpful thought is identified, you can then make a conscious choice to act on that thought or change what you think or perceive about the situation.
You may want to ask yourself these questions: • Is the way I am thinking beneficial to me, my children or other family members? • Is acting on this feeling going to help the situation or make it worse? • Are there any other ways of perceiving the situation? • Is what I am thinking or perceiving 100% true? • Am I only seeing the negatives about my ex and not seeing the positives?
iv) Step 4: Take necessary action to cope with your emotions in a more adaptive way
The final step of processing your emotions is to take necessary step to cope with your emotions in a more adaptive way.
Once you have identified unhelpful thoughts or distorted thinking, you can reframe your thoughts to be more balanced. This is where you will find that your emotions will calm down and you can start to rationalise and think clearer. To cope with your emotions better, here are the following things you can consider doing: • Self-care. Make sure you take time out to do things that you enjoy and would help you feel nurtured; • Exercise regularly. Exercise is one very effective way of releasing stress; • Make sure you have enough sleep. Sometimes stress can cause difficulties in sleep; • Talk to a trusted friend about your emotions and feelings; and • Speak to a counsellor or psychologist if you are having difficulties managing your emotions and processing them.
The next part of our article will be on how PF Restructure Pre-Writ can help parents who are going through a divorce come to enduring agreements for both financial and care issues of the family.
We hope that you have found this article helpful. If you are contemplating or going through a divorce and find that you require assistance in any way, please reach out to us at enquiries@practiceforte.websterizor.com or +65 6221 3009.
By PracticeForte Advisory Affiliate Lim Seng Siew, Director of OTP Law Corporation
In the first part of this series of articles we had discussed the birth of a start-up. In this second part, we discuss the next steps in the growth of a start-up.
Taking the First Baby Steps So you have incorporated your start-up. The founders’ equity has been sorted out. Funds have been raised from family and friends. What next? You need to engage external contractors and hire employees. Dealing with employees first.
Employees An employment letter is actually a contract in letter form between the start-up and the employee. In fact Singapore’s Employment Act requires that key terms of the employment must be set out in a written document called “KETs” or Key Employment Terms. The form in which the KETs takes is left to the employer; it can be a letter or a ‘formal’ contract. The Act also requires that the employer must issue to the employee an itemised payslip. Details can be found in the Ministry of Manpower’s website at http://www.mom.gov.sg.
The key employment terms include: (a) name of employer; (b) name of employee; (c) job title, main duties and responsibilities; (d) start date of employment; (e) duration of employment, if fixed term; (f) working hours, working days and rest days; (g) salary period; (h) basic salary; (i) fixed allowances; (j) fixed deductions; (k) overtime payment period; (l) overtime rate of pay; (m) other salary related components (eg bonus and incentives); (n) annual leave, sick leave, hospitalisation leave, maternity leave and childcare leave; (o) medical benefits (eg insurance or dental benefits); (p) probation period; (q) notice period; and (r) place of work.
In addition, it would be prudent for a start-up to include in the employment letter clear terms about: (a) confidentiality and IP rights; (b) entitlement to share options; (c) restraints from joining competitors; and (d) termination procedures.
Do not forget that working shareholders/directors are also employees who should be given employment letters and itemized payslips. They should be paid a reasonable salary for the services that they perform for the start-up as an employee. Such services must be differentiated from their contribution as founders for which they would have received equity.
In addition to the Employment Act, there are also other regulations governing the relationship between the employer and the employee. One example is the Central Provident Fund Act that mandates an employer to contribute funds (over and above the salary payment) and to deduct a portion of the employee’s salary to pay into the employee’s CPF account. The entitlement to holidays, annual leave, sick leave as well as working hours are regulated and the employer has to meet these standards. The employer is also mandated to have insurance cover for injuries and occupational diseases suffered by employees that occur in the course of their employment.
It may be tempting for a start-up to ‘treat’ employees as external independent contractors to avoid having to meet these various regulations. It might even save on CPF payments. Basic advice. Resist the temptation. Crafting the independent contractors’ agreement so that they won’t be considered as employees is complex and risky. Remember an earlier advice, keep things simple. Also, the law is not stupid. If a person “looks like an employee and sounds like an employee”, the law will treat that person as an employee, no matter what the documents say.
External Contractors & Service Providers A start-up is not going to be hiring everybody whom it needs for its operations. Some of the services a start-up needs will genuinely be provided by external contractors or service providers. Contracts will have to be entered into with such external parties. Often they have their ‘standard contracts’ for the start-up to accept. Usually there is nothing wrong with that. You just have to know what to watch out for. Look out for the commercial terms: like how much to pay, when to pay, what are the services or products that you are paying for, and when those services are to be provided. At the very least, they have to be acceptable to you.
Also look out for the ‘fine print’. Often the detailed terms are set out on the reverse side of an invoice or in a web link referred to in the invoice. Read them. Ask questions of your contractor if anything is not clear. If any clause is not acceptable to you, negotiate to amend them. There is no such thing as a non-negotiable clause, only that the contractor is not prepared to negotiate. Remember that you are the customer. If the contractor wants your business, they should be prepared to negotiate. As a customer, you have to be satisfied before signing on the ‘dotted line’. If you believe that the terms are so onerous that you cannot accept them, be prepared to walk away and find another provider. Don’t sign in the hope that the onerous clauses won’t be invoked.
Another thing to look out for are the indemnities that the contractor is asking from you. An indemnity is when you agree to cover any claims that the contractor will face because they are doing work for you. In general, you should not be giving any indemnities since you are the customer. However, in some cases, the contractor may properly require indemnities from you. One example is an indemnity to cover claims against the contractor arising from any wrongful use by you of other people’s intellectual properties that the contractor is relying on to provide its services. For a start-up, sometimes it is important that the contractor maintains the confidentiality of the information that you provide them and that you own the intellectual property rights of the product that they are doing for you. Make sure the appropriate clauses are included.
Your Teenage Years You’ve got your employees. Your contractor has completed your key products which are up and running. Let’s say that you are providing online services with a SaaS model to your customers. You begin to explore your surroundings and test your horizons. You seek out your first customers. Potential competitors are taking notice of you.
Your Customers Just as your service providers or external contractors needed you to sign a contract before they begin work for you, you now require your customers to sign your contract before you provide your services to them. You should do this even if you are provided your services without charge to your customer, say during the trial stage. The contract between a start-up and its customers governs more than just payment, it sets out the scope of the relationship, and hence the respective obligations, between you and your customer.
The Contracts Unfortunately, drafting a be-spoke contract is a costly business. If funds are tight, and particularly while your products or services are only at the early trial stages, we believe that most start-ups can make do with generic contract templates that cover about 80% of common use cases. We have basic contract templates that should help many start-ups with limited funding, in particular non-disclosure agreements, website terms of use, software licensing agreements, and privacy policies, among others. Email us at enquiries@otp.sg.
We will be happy to customise any of these documents to suit your particular needs. Every start-up’s need is different (or so the founders think), and the start-up’s contracts are similarly diverse (or so the lawyers think).
As your business grows into adulthood, you will fall in love and think about getting married. Just as in life, bringing in new investors and acquiring other businesses that complement your core business is tricky. In our third part, we will explore the issues that arise when businesses get ‘married’.
Seng Siew has over 29 years practice experience in litigation and commercial transactions, concentrating mainly on technology related matters. In addition to practice experience, in the years when he was CEO of a technology start-up (2000-2003) and Senior Director of the Technology Cluster, Singapore Academy of Law (2008-2011), he has also gained practical experience managing technology projects as well as the daily operations of such entities.
In addition to his active legal practice, Seng Siew is also an active representative of the legal profession in dealing with the government and the judiciary. As an ExCo member of the Law Society of Singapore, he would give feedback on policy matters to the authorities. As the chairman of the Inadequate Professional Services Committee and a member of the Ethics Committee, he is also involved in regulating the conduct of lawyers.
In this episode, aspiring mediator Chloe Chua interviews cross-border and intercultural mediator Christian von Baumbach, based in Berlin, Germany. Through sharing his rich experiences, Christian explains why mediation should be the 1st port of call for parties looking to resolve a dispute. From business to family mediations, listen to how Christian’s international expertise and network through PracticeForte make him the ideal candidate to facilitate cross-cultural discussions, leading to enduring settlements!
By Susan Tay, Founding Partner of OTP Law Corporation & Co-Founder of PracticeForte Pte Ltd. This article was first published on OTP Law Corporation’s website:
This is the 6th part of a series on therapeutic justice and how it may be applied in family cases in Singapore. You may read Part 1, Part 2, Part 3 here, Part 4 here and Part 5 here.
In these parts, we dealt firstly with how the essence of Therapeutic Justice for family cases is in the healing. The next parts involve the perspectives and roles of the different players and they are namely, The Lawyer, The Accountant, The Mediator, The Mediation Advocate and in this article, The Neutral Evaluator.
Family cases will be restricted to divorces and the issues arising out of a divorce. These issues include division of assets, financial support and importantly, children’s matters like custody, care and control, access.
Neutral Evaluation For Family Cases- What, Why, When, Who, Where and How
WHAT IS NEUTRAL EVALUATION? The Law Society of Singapore Neutral Evaluation Scheme (LSNES) On 15th June 2021, the Practice Direction that the Family Justice Courts in Singapore may refer matrimonial cases to the Law Society of Singapore for mediations and/or neutral evaluations took effect.
These cases involve asset pools of S$2m and above. They are cases that do not qualify for court mediations which are provided by the Family Justice Courts free of charge. You will be pleased to know the Law Society’s fees are only S$150 per hour. With S$2m worth of assets to be determined, these fees are, to use the oft understatement: eminently reasonable.
They have also expanded the modes of resolution to Neutral Evaluation, in addition to Mediation. Law Society of Singapore’s panel of mediators and neutral evaluators are only one of two panels that the Family Justice Courts will refer to under the Practice Direction. For now, Law Society is the only one of the two with a panel of neutral evaluators specifically selected for family cases. I am one of these eight neutrals in this pilot phase.
This is heartening news, both for the public and the professionals. A widening in scope and qualified professionals can only mean better accessibility and visibility for the peace pathways to dispute resolutions.
Ok, so what is Neutral Evaluation really? To quote Assistant Professor Quek Anderson Dorcas , “Neutral Evaluation involves a third-party neutral giving the parties a non-binding assessment of the case at an early stage on the basis of brief presentations made by the parties. Unlike mediation, in which the mediator assists the parties in reaching an agreement without necessarily stating an opinion on the case, the explicit aim of Neutral Evaluation is to provide a without-prejudice evaluation of the strengths and weaknesses of a case.
Faced with an independent assessment of the merits of the case, and a better understanding of their prospects of success at trial, the parties are more likely to settle their dispute.”
What kind of disputes are suitable? Currently, the following have been identified as suitable for Neutral Evaluation under the pilot phase : • Marital/ Financial Disputes • Divorce and reasons for the breakdown of the marriage • Nullity and reasons for nullity • Maintenance for former wife or husband who has been incapacitated during the marriage • Financial provision on divorce/ judicial separation or nullity. Assessment of pool of matrimonial assets. Division of the matrimonial assets. • Maintenance for the children of the marriage Cases suitable for Mediation only and not for Neutral Evaluation: • Parenting and care arrangements for the children, including access and contact time • Where and with whom the children should live • Custodial arrangements and major decisions concerning the children’s upbringing relating to the children’s education, health and/or religion • Relocation of children • Abduction or wrongful retention of children either for Hague Applications or otherwise
Cases not suitable for both Mediation and Neutral Evaluation: • Determination of the appropriate forum • Domestic violence cases • Guardianship matters • Contempt of court cases – breach of court orders and obligations including access and care and control orders • Bankruptcy or insolvency • Status either of individuals or of their relationship • Any claim or involvement of third party interests, unless that third party agrees in writing. This also applies to cases where an asset is held jointly with a third party or is alleged to belong beneficially either in whole or part to a third party • Child protection proceedings
WHY NEUTRAL EVALUATION? Neutral Evaluation fills the gaps and serves where Mediation may fall short. It is primarily useful and overwhelmingly so as a form of reality check.
At its core, neutral evaluation is really this: A highly experienced practitioner who will study the evidence, hear the disputants and then gives them an evaluation of the case. Unlike being before a judge in court, and this is a massive advantage of neutral evaluation over litigation, this process is very flexible, can be friendly and yet effective as a forewarning of things to come.
Imagine this: you have been in a fiery and ulcer-inducing court fight and are now weeks from trial. S$200,000.00 down after paying legal and court fees, you have just received yet another invoice for another S$100k to pay the massive hearing fees since you have 11 witnesses and the hearing will likely last for 14 days. Imagine being told only then that even if you win, you cannot recover enough to even pay your fees. Or worse, that even if you can, the stomach ulcer has developed into something more sinister.
Neutral evaluations give you an opportunity for some sort of a reality check very early on. In family cases, we hope you get it even before you file your writ. Mainly because of this 110% proven fact: acrimonious matrimonial battles destroy familial relationships even between relatives who are not directly involved in the fight. Too often, these relationships never heal or are repaired. Which brings us to-
WHEN? Now. If you are reading this article, you may be contemplating divorce. You may be thinking of a way to see if you can get a fair assessment of what is likely to happen if you go to court for: your rights over maintenance or matrimonial assets. So do it before you even file the writ. It can even be before you engage your lawyers although I personally feel lawyers are indispensable, really, for anything that will culminate into a court order.
Neutral Evaluation is especially useful before you go into mediation. With the likely outcome and any false expectations demolished, parties can be better ready to come to a reasonable settlement. Like I have said in previous articles, oftentimes, judges don’t order what you want. It is not uncommon for both parties to feel that way.
Ms Susan Tay was appointed as one of eight neutral evaluators by The Law Society of Singapore for the Pilot Family Panel of Neutral Evaluation Scheme. In time to come, more neutrals will be trained and appointed to further the aspirations and administration of Therapeutic Justice in the Family Justice Courts.
