This article is written by PracticeForte Advisory Affiliate Susan Tay (Mediator, Collaborative Practice Lawyer, Parenting Co-Odinator)
I am writing this while serving self-quarantine and working off site. Mylene and I were away in Thailand when we were suddenly told to “grab the 1st flight out and come home” if we want to avoid the mandatory 14 day stay home notice. We were due back 2 days later but heeded all the advice, cancelled our return flight, booked 1st and only flight out of Bangkok the next morning and flew back. That was last week.
I have been working away from office. I haven’t seen my colleagues or mum or siblings except through Zoom since our return. Were we crazy to travel during this time? Trust me, we had our qualms by the buckets. It is of some comfort though that I have since been whisked off for a Covid-19 swab and tested negative.
We went to Bangkok to mediate a family case relating to access to their only child. And after 7 hours of mediation, both parents signed a settlement agreement that hopefully could work for them and their child.
This case was a first on many levels. For one, it is the 1st time, 3 PracticeForte Advisory mediators co-mediated with each other. Our Thai affiliate and mediator Simi Singhsachthep, and the Singapore mediators, Mylene Chua and I. It was also to be the very first family mediation for THAC (Thailand Arbitration Centre) and it turned out to be a case that was the subject matter of a Hague Convention application. I.e. notoriously complex.
Facilities – Mediation was on a Saturday when THAC was closed. We practically had the whole place. Thanks also to COVID 19 and respectable social distancing even as we mediate, the room assigned to us was the biggest. With ceiling to floor glass windows, we had a glorious framed view of Sukhumvit, Bangkok. All the mediators, Simi, Mylene and I, did our accrediting course here in 2017 so its familiar. The breakout rooms were comfortable. Danaipat from THAC was quick to realise at lunch time that the rooms could be too close to each other, so he actually arranged for another room further down. That was a good call. Food was fantastic. Thai food for lunch, cheese cake for dessert and then pizza and ribs for tea. Danaipat took care of everything superbly.
How we got this case – All the mediators are affiliates of PracticeForte Advisory and have a good, previous working relationship.
When Simi got a phone query from one of the parties late January this year, she immediately proposed mediation. When she called me, I offered in a heartbeat, to fly there to mediate with her. She then co-ordinated with THAC to initiate mediation in Thailand. I was notified in February by THAC.
It turned out that this mediation was an significant one for THAC, not only because it was the first Family Mediation for THAC but also a Hague Convention case which is regarded as fairly specialised. Mylene and I went to Berlin, Germany twice for focused and advanced mediation training with MiKK after my basic MiKK training in Singapore to mediate cases like these.
Pre-Mediation Communications
With THAC – It was easy and quite smooth although overseas mediators must expect that decisions happens pretty much at the 11th hour.
Parties submitted a joint Mediation Request (MR) with a few paragraphs of what the case was about.
With Parties – Pre-mediation, Simi (being the local mediator) made a short phone call to both parents just to have a better sense of where parties were.
In Bangkok
Mylene and I arrived in Bangkok 2 days before the mediation. we arranged to meet Danaipat at THAC the next day and then to meet with Simi 45 minutes later so we could brief each other.
At THAC
The next day, at THAC, we checked out the space, the break out rooms and printing facility. We also met with the THAC MD, K. Pasit and the head of arbitration, K. Machimdhorn. It was then we found out this was the 1st ever Family Mediation for THAC. In Thailand, such mediations are usually done at the family courts or parties litigate. K. Pasit told us that he would love to promote more family mediations in THAC.
Co-mediators’ Meeting
At this meeting, more facts about the case were shared.
Mediation day
Process:
We managed the following:
Joint session introduction where we got parties to tell us what they hope to achieve
Caucuses or private sessions when we did fact gathering; these sessions are completely confidential even with regard to the other party. Here, we heard how mum and dad truly felt, their fears and what each side of the story is;
Joint session when we jointly work on coming up with an agenda; they did not agree on all the items on the list of the agenda but agreement was not the point. The point was to be able to talk about anything that was important to either of them;
Lunch of 30 minutes all on our own with mediators de-briefing and parties taking a short break
Joint session as we go through agenda and see if mediators can help parties come up with solutions; expectedly emotions ran very high and we broke into private sessions
Options generation in caucuses where individually parties let the mediators know what their proposals are; these proposals are also tested on viability, acceptability with alternatives; At the last private sessions with the respective parties, we happily came to an agreement
Joint session when parties went through the written settlement agreement which essentially were a set of terms relating to access to the Child.
The signing was done and parties gave feedback in a form of how they felt about the facilities, the process and the mediators
Post Mortem
Settlement was after 7 hours with breaks in between to eat. Food was provided at the premises so no one had to leave. Compared to years more in litigation and the cost involved in those litigation, parties managed to settle the access arrangements between them in this one meeting, in this one day over just one set of fees. The fees which were offered on a low bono rate by the mediators was a tiny fraction of litigation costs.
So if you ask me again, was the trip worth it? Well, I will say it all depends now on how parties are after this mediation. If the agreed arrangements can help them better their co-parenting, relationships improve, the child is less triangulated; then and only then, can we say that our efforts are worthwhile.
This article is written by Rajan Chettiar (an affiliate of PracticeForte Advisory) and was first published the Asian Journal on Mediation.
This article explores the use of collaborative practice as opposed to litigation to help divorcing couples to reach an out of court settlement. It discusses how a collaborative divorce would work and the roles of the people involved in the process. The article then makes a comparison between collaborative practice, mediation, and litigation in the context of divorce proceedings. By assessing the advantages and disadvantages of a collaborative divorce, this article makes a case for collaborative divorces. The article then examines the experiences of the US, Canada, Australia, and Hong Kong and discusses how collaborative practice can be further promoted in Singapore. The article concludes that collaborative practice is the way forward to achieve the therapeutic and restorative components of family justice and to create a less-litigious society.
Rajan CHETTIAR*
Barrister-at-law (England and Wales), Advocate and Solicitor (Singapore);Associate Mediator and Accredited Family Mediator, Singapore Mediation Centre;Collaborative Family Lawyer; Member, Board, International Academy of Collaborative Professionals
I. Introduction
1 Family is one of the foundational blocks of society. Almost every one dreams of getting married and having the perfect family. However, sometimes the marriage breaks down. Going through a divorce is one of the most stressful and emotional events people can encounter.[1] When emotions run high, the tendency is to want to make the other person suffer as much as one has suffered. This tendency lends itself to creating an acrimonious and litigious environment in divorce proceedings most acutely shown on television and in the movies. Scenes of couples siphoning away assets and using their children as bargaining chips abound, along with scenes depicting divorce lawyers acting as gladiators fighting for their clients, often without regard to the long-term effects of divorce. Divorce affects all of us and the ones who end up suffering the most are the children. Scars left behind from witnessing warring parents are long-lasting. Many develop emotional and behavioural issues that continue into adulthood.[2] These issues not only affect the individual suffering from them but inevitably affect those around them and ultimately society as a whole.[3]
2 The family justice system has a key role to play in shaping how couples handle divorce. There has been increased recognition that the family justice system should understand the parties involved and consider their interests, as well as those of their children.[4] The traditional adversarial approach to divorces contributes to animosity, thereby worsening conflict, and often falls short in achieving therapeutic and restorative components of family justice.[5] An alternative needs to be utilised and one of the best ways to do this is through collaborative practice (“CP”). CP aims to reduce the emotional, mental and economic strain of a litigated divorce and allows couples to arrive at a settlement on their divorce collaboratively.[6] It recognises that divorce is not just about the legal rights of the parties but also about their short‑term and long-term needs. CP allows couples to arrive at solutions that recognise and satisfy those needs. Introduced by American lawyer Stu Webb in 1990, the International Academy of Collaborative Professionals (“IACP”) now has more than 2,500 members in over 25 countries.[7] In Singapore, CP is known as “collaborative family practice” (“CFP”). CFP was introduced in Singapore in 2013 and is run by the Singapore Mediation Centre (“SMC”).[8] In 2015, it was reported that only seven couples chose to use CFP.[9] Six years later, the number of CFP cases has increased; anecdotally, there have only been approximately 20 cases in total, so far. Since CP was introduced, there are now 54 lawyers and three mental health professionals under the SMC’s panel of collaborative professionals.[10] Around the world, the increase in popularity of CP is encouraging. This article seeks to show why the CFP scene in Singapore has so much more potential and explores how CFP in Singapore can be taken to new heights.
II. What is collaborative practice and how does it work?
3 CP is meant to keep divorcing couples out of court. It is a process where parties and their lawyers agree to handle the divorce collaboratively through interest-based negotiation rather than litigation.[11] The CP process typically begins where one party consults a CP-trained lawyer who then sends a proposal to the other party to commence the CP process.[12] In Singapore, the CP process can also be initiated by sending in a request to the SMC.[13] Everyone who is involved has to sign a participation agreement stating that they will engage in negotiations in good faith, will provide full and frank disclosure, will not litigate or threaten litigation during the process, and that professionals involved will be barred from continuing to act should the CP process fail.[14]
4 During CP negotiations, parties identify their interests and are given the chance to explain their needs.[15] Parties are also able to discuss non-legal issues in relation to the divorce,[16] such as how parties are going to break the news to their children. Ultimately, the aim is to arrive at a settlement with an understanding of the other’s perspective. CP thus allows couples to focus on their and their family’s needs and gives them the flexibility to decide what is best for them.[17] Further, discussions during the CP process are privileged, save where there is a threat of criminal conduct, allowing parties to negotiate without fear that matters disclosed will be used against them.[18]
5 Overall, CP aims to reduce the high conflict that is usually associated with divorce litigation, thereby setting the stage for co-operation in future.[19]
Who are the professionals involved and what are their roles?
6 With CP, parties have control over the professionals they want to involve in the process. While lawyers are involved by default, parties have the option of including neutral financial professionals and mental health professionals amongst others.[20] The only condition is that the professionals involved have to be trained in the collaborative process.
7 In collaborative divorces, lawyers do not act as adversaries. Instead, they put on a different hat and work together to help resolve issues relating to the divorce.[21] A survey conducted by the IACP over a period of four years revealed that apart from advising on process and the relevant law, lawyers involved in the CP process helped parties feel safe during negotiations, which in turn encouraged settlement.[22] Lawyers also “facilitated creative problem-solving” as well as “empowered client(s) to actively participate” and “find their voice”.[23]
8 Neutral financial professionals assist couples by helping gather relevant financial information to create a clear picture of the family’s current financial situation and future financial needs.[24] Parties can then formulate the appropriate plans in relation to the division of assets and payment of maintenance with the benefit of this clearer picture.[25]
9 Mental health professionals play key roles in a collaborative divorce by providing crucial emotional support to the parties. They help parties navigate their new roles as former spouses and express their individual needs and concerns in a healthy way.[26] A child specialist helps parties tailor parenting plans to serve the children’s best interests and acts as the children’s “voice” during the process. He or she may also be part of the team of mental health professionals.[27]
III. Collaborative practice versus mediation versus litigation
10 The most distinctive difference between CP, mediation and litigation is the context in which they take place. With mediation and litigation, parties have already entered the court’s domain; divorce papers are already filed and parties are aware of the allegations and claims made against them.[28] On the flipside, collaborative divorces occur before any divorce papers are presented in court.[29] In a mediation, parties can still easily revert to litigation if they think that mediation is not going in their favour and they are not willing to compromise.[30] With the participation agreement that couples undergoing a collaborative divorce sign, couples and their lawyers cannot make the decision to back out and proceed with divorce litigation without consequences, given that the lawyers can no longer continue to represent their clients.[31]
11 Other notable differences between CP, mediation and litigation are the level of adversity involved, whether it is interest-based or rights-based, and the level of control over the process and outcome. Litigation is naturally adversarial, with both sides advocating for a ruling in their favour.[32] The focus is on what each party is entitled to under the law. While mediation is less adversarial than litigation since it involves a neutral third party who facilitates negotiations between parties,[33] lawyers still act as their clients’ advocates seeking to obtain an outcome most favourable to their client.[34] Sometimes, this outcome is at the expense of the other party or the children. The focus of mediation is also rights-based, taking into consideration what parties would potentially receive if they had proceeded with litigation.[35] CP, however, as discussed above, is interest-based.[36] Parties focus on and are guided by their needs and interests while working collaboratively towards settlement of their divorce. Furthermore, given the facilitative role of lawyers in a collaborative divorce, adversity between the parties is removed.
12 Parties have a greater level of control over the process and outcome in a collaborative divorce compared to litigation. In traditional divorce litigation, parties have no say over the process and are subject to the procedures required by law and court timelines. Even with mediation, the process is facilitated by the mediator and parties are usually not able to discuss matters that are irrelevant to the legal issues that are the subject of the mediation. In a collaborative divorce, however, parties decide when they want to hold CP meetings and decide what they would like to discuss during those meetings.[37] The outcomes in a collaborative divorce are, therefore, entirely in the hands of the couple, whereas [in litigation], the decision lies with the judge.
IV. Why collaborative practice is the way forward
13 The 2016 Global Pound Conference revealed key concerns and priorities of users of dispute resolution. These include the desire for certainty and control over the outcome,[38] the desire for relationship-focused outcomes that preserve and enhance relationships,[39] wanting to handle conflict before involving the courts[40] and financial concerns of wanting to save time and costs.[41] As will be discussed below,[42] CP provides the opportunity to address these needs and concerns.
Advantages
14 The advantages of CP are numerous. Most significantly, the singular fact that parties control the process produces numerous benefits. Couples determine the date, duration and the agenda for each meeting.[43] They are thus able to discuss non-legal issues such as how the divorce has affected them emotionally, who the family pet shall reside with, or when and how the children should be introduced to either parent’s new girlfriend or boyfriend. In one case, the wife raised her desire for funding so she could return to school and obtain a better-paying job. Subsequent discussions with the husband revealed that he was supportive of the idea as she would be working towards enhancing her future earning capacity.[44] Such discussion would not have been possible in litigation or mediation, given how those processes are about the legal rights of the parties rather than their needs. Furthermore, the flexibility in a collaborative divorce affords couples the space to come up with creative solutions to their problems, – whether legal, financial or emotional.[45] The ability to decide on timelines also means that the pressure to resolve issues within a one-day mediation, for example, is removed and couples are not forced to make decisions they may later regret. When couples have control over both the process and the outcome, they feel empowered and have a sense of ownership.[46] Years down the line, they are able to look back and appreciate how and why they agreed on certain things. In knowing that the collaborative process took their needs into consideration, they tend to be more at peace with the decisions they made and understand that they would make those choices again.[47] This is in stark contrast to litigation where the decision of the judge often results in one or both parties thinking that the decision was unfair.[48] An agreement that both parties came to of their own accord is less likely to result in subsequent default than a decision that was imposed on both of them, often without either party having much say in the matter.[49] After all, in such a personal matter like divorce, couples are often the ones who understand their situation and their needs best and, in turn, want to have an input in something that will change their lives forever.[50] Additionally, having control will allow parties to feel satisfied with the process and outcome, thereby helping parties move on faster.[51] The ability to consider and focus on needs in addition to rights thus results in sustainable, future-focused solutions that may not be possible with mediation or litigation.
15 Due to the nature of the collaborative divorce process, there is also less confrontation and less conflict. Feelings of anger or wanting to take revenge are often worsened by the adversarial nature of divorce litigation.[52] Down the road, couples having been affected by the acrimony of divorce litigation cannot communicate effectively and end up returning to court multiple times to resolve their problems.[53] In contrast, CP encourages couples to co-operate and communicate with each other with respect.[54] In addition, CP minimises the posturing and gamesmanship often associated with negotiations between lawyers.[55] CP also alleviates the propensity for parties and their lawyers to open with unrealistically high or low offers.[56] The shift from a win/lose mentality typical of litigation to a win/win mentality in a collaborative divorce sets the stage for couples for cordiality and co-parenting in future. The children will then benefit from having parents who can co-parent despite no longer being together.[57] The children also end up spending more time with both parents, allowing them to nurture healthy relationships with each.[58]
16 The confidentiality afforded by the process promotes amicable settlement by alleviating fears that one’s dirty laundry will be aired in public.[59] Furthermore, the fact that discussions are privileged allows parties to be more open and frank without fear that something revealed in the course of the collaborative process will be used against them in future,[60] especially during cross-examination in a divorce trial.
17 Another advantage of CP is that it takes place before parties enter the door of the courts. Seeds of acrimony are already planted when one party files for divorce;[61] allegations often blaming the other for being the cause of the marriage breakdown have been laid.[62] It thus becomes very difficult for parties to back down from such provocation, and they would not be in the right headspace to mediate.[63]
18 Practically, collaborative divorces can allow couples to reduce time and costs spent on their divorce. Having mental health professionals involved in the process allows emotional issues to be handled at the outset before these emotions spiral out of control and compromise the couple’s ability to negotiate and work collaboratively.[64] Additionally, collaborative divorces do not have the same costs associated with preparing and filing divorce papers or with preparing and going for trial. The cost of having to hire a neutral mediator is also saved.[65] These savings can be redirected to paying for mental health professionals or neutral financial professionals if parties choose to engage them, or towards their own needs. Aside from savings, the potential for lower costs also creates an incentive for couples to negotiate and settle in a timely manner.[66]
19 In the public sphere, settlements coming out of the collaborative divorce process help reduce the workload of courts simply because there are less disputes to resolve.[67] Courts can then spend more time on more complex and novel cases.
20 CP also proves useful in other areas of law, especially where preservation of relationships, confidentiality and win/win solutions are key. For instance, in business, where relationships with other businesses or clients are vital to a business’ success, CP would help preserve relations such that they can continue working together in future.[68] In the same vein, CP can also be used for shareholder disputes and partnership disputes.[69] With employment law, employment disputes can get emotional and result in long-drawn, costly litigation.[70] Publicity associated with employment disputes can also prove detrimental to both parties. Another area of law where parties can benefit from CP is in wills and estates. Parties to wills and estates disputes are often family members and litigation often aggravates fighting between the family members, whereas CP can help improve, if not maintain, their relationships.[71] The confidentiality afforded by CP also ensures that family disputes stay private.
Disadvantages
21 Despite the boons of going through a collaborative divorce, it must be noted that CP is not suitable for every couple. CP is not appropriate where there is domestic violence, mental health issues or where there is a drastic power imbalance.[72]
22 Though there are downsides to CP, most of these disadvantages are not impossible to overcome. As discussed above, a key feature of CP is the disqualification of lawyers from continuing to act for their clients should the collaborative divorce process fail. Parties then have to spend time and incur more expense briefing new lawyers.[73] As a result, parties may feel like their time was wasted trying to settle their divorce collaboratively.[74] It should be noted, however, that there are also costs associated with negotiations between lawyers, and with mediation. Often, there is also no guarantee that these processes will result in settlement. In addition, the disqualification of lawyers acts as motivation for parties to remain at the negotiation table and generate solutions.[75] Negotiations are not always smooth sailing. The disqualification thus disincentivises parties and their lawyers from giving up easily due to the time, effort and money already expended in the process.[76]
23 A common criticism of CP is that the involvement of other professionals adds to costs. However, the presence of other professionals who are trained to handle the mental, emotional or financial aspects of divorce help nip problems in the bud before they get out of hand and derail negotiations.[77] Anecdotally, experience in the US has also demonstrated that collaborative divorces are multiple times cheaper than traditional divorce litigation.[78]
24 The fact that parties control the CP process may also become a disadvantage. Parties may choose to unduly delay the process in order to make it unaffordable for the other party.[79] One party might also decide not to provide full and frank disclosure.[80] Ultimately, the success of a collaborative divorce hinges on the parties’ commitment to the process. The participation agreement is therefore key to alleviating some of these risks. The participation agreement could provide for penalties in the event of undue delay.[81] Furthermore, misuse of the collaborative process has cost consequences for both parties, thus acting to discourage such abuse.[82]
25 A final common complaint from opponents of CP is that CP is less lucrative for lawyers than litigation. While this may be true to some extent, lawyers may find that it is easier for them to get paid for their billable hours because their clients are satisfied with the process and the outcome.[83] Additionally, the fact that disputes can be resolved more efficiently means that lawyers can handle more cases, which would help compensate for the decreased earnings from litigation.[84]
V. Looking overseas
26 CP now has presence in countries in Europe, America and Asia. In the US, there are now approximately 271 CP groups; in Canada, there are 37 CP groups; in Australia, there are 16 CP groups; in Hong Kong, there is one CP group.[85] Each of these aforementioned jurisdictions have had varying levels of success with CP. This article will briefly examine each jurisdiction in turn.
US
27 CP has enjoyed runaway success in the US as seen from the number of CP groups in the country spanning more than half the states in the US.[86] Here, the Uniform Collaborative Law Act (“UCLA”) was enacted with the aim of protecting users of the CP process and to encourage use of collaborative law by standardising CP participation agreements.[87] To date, the UCLA has been adopted by 19 states in the country.[88]
28 One collaborative lawyer’s experience in Florida, where the Florida legislature has acknowledged the ability of the collaborative process to protect relationships and reduce the emotional and financial cost of litigation, is heartening.[89] For this lawyer, CP has solved his grievances in relation to the inordinate time spent in court, dealing with court schedules, unprofessional behaviour of other lawyers, and the difficulty of getting clients to pay. He also professed to feeling more fulfilled in the work he does and to using his counselling skills to value-add to his work.[90]
Canada
29 CP in Canada has similarly enjoyed success. For example, in the city of Medicine Hat in Alberta, Canada, CP was introduced in 1999. By 2006, the number of family law cases awaiting trial in court had dramatically declined by 85%.[91] The success of CP in Medicine Hat can be attributed to the fact that most family lawyers in the area utilised the collaborative approach to resolve their divorce cases.[92]
Australia
30 Given the long delays in the Family Court of Australia, which sometimes extends to more than three years, and skyrocketing legal fees,[93] it is easy to see why CP has been an attractive option in Australia, especially for couples who want to move on with their lives. The Family Law Council’s examination of CP in Australia found that in states or territories where collaborative law was thriving, it was due to the efforts of collaborative lawyers and institutional support. For instance, in the Australian Capital Territory, the proactive efforts of two family law firms drove the growth of collaborative law.[94] Additionally, in the states of Victoria and New South Wales, efforts to promote collaborative law were driven by the respective law societies that made such promotion a priority.[95] In 2006, the Family Law Council reported zero presence of CP in Western Australia, South Australia, Tasmania and the Northern Territory.[96] Now, however, CP’s presence has expanded and one can now find collaborative lawyers in all states and territories in Australia, save for the Northern Territory.[97]
Hong Kong
31 The Hong Kong Collaborative Practice Group (“HKCPG”) was set up in 2011.[98] A year later, the HKCPG had over 40 members. In 2016, the HKCPG expanded further to having approximately 70 members and was dealing with 20 to 30 CP cases a year.[99] While this growth is encouraging, Hong Kong still faces some issues with public awareness of CP.[100] Other issues Hong Kong faces include the trouble lawyers have with switching roles from adversaries to collaborators, as well as the limited number of mental health professionals and specialised family law practices in the jurisdiction. However, despite the difficulty lawyers may have switching hats when they represent clients in a collaborative divorce, many lawyers within the HKCPG have found that the relationships forged with other lawyers throughout their years in practice were beneficial to working collaboratively.[101] Issues relating to the limited number of professionals trained in CP can be solved once CP becomes more recognised as a means of resolving divorces.
VI. Encouraging use of collaborative practice in Singapore
32 Experiences of the jurisdictions discussed above provide valuable insight into how CP can also enjoy greater success in Singapore. With the potential that CP has in fulfilling restorative and therapeutic components of family justice, more needs to be done to encourage the use of CP in Singapore.
33 First, there needs to be a change in mindset amongst lawyers. Lawyers are often the first port of call for clients seeking to resolve a dispute. Given this, lawyers have to understand the needs of the client and match these needs with the most appropriate dispute resolution process.[102] In the context of family law in Singapore, the children’s best interests are paramount. Where there are children involved and the parties’ personalities and circumstances are suitable for a collaborative divorce, lawyers should recommend the collaborative process for its potential to preserve relationships and allow parents to co-parent effectively. Children ultimately benefit when they are not surrounded by warring parents.
34 This change in mindset is easier said than done, especially given that Singapore is an adversarial system. Lawyers are trained to be adversaries and a common sentiment amongst lawyers is that they hate losing. However, in the context of family law where outcomes have major effects on people’s lives, lawyers should reflect on how their advice and actions impact their clients’ lives and those around them. In the practice of family law where things are not as clear cut as winning or losing, lawyers need to work on shifting their mindset towards dispute resolution options that are more amicable, such as CP.[103] Singapore’s family bar is not big and many family lawyers know each other well because of their years practising family law. It is therefore not a big step to ask family lawyers to allow these relationships to translate into working collaboratively instead of against each other.
35 It is not enough to say that lawyers need to change their mindset and become less adversarial. Lawyers are trained to be adversarial and that is why change also needs to happen in legal education and training. It is suggested that law students be exposed to CP while in law school, or that CP be incorporated into the preparatory course leading to Part B of the Singapore Bar Examinations. CP could also be incorporated into Continuing Professional Development programmes. Another opportunity to encourage CP especially in family law would be through the proposal by the Committee for Family Justice to implement Family Law Practitioner accreditation for family lawyers.[104] Lawyers seeking to obtain such accreditation should be trained in CP.
36 Lawyers also need to transit from the mentality that moving away from litigation would mean that they would not be able to meet billing targets and that non-litigious ways of resolving disputes are less lucrative. Lawyer Catherine Gale’s experience in Australia has demonstrated that CP is just as, if not more, lucrative than litigation. Her practice ends up managing more cases, as matters take less time to resolve. Furthermore, Gale’s experience is that clients are happier to pay legal fees, having been involved in the collaborative process and seeing first‑hand the value a lawyer brings to helping them resolve their dispute.[105]
37 It is noted that there needs to be demand for CP in Singapore before lawyers can similarly operate lucrative practices focusing on CP. Therefore, more also needs to be done to raise awareness of CP amongst lawyers and the general public. The 2016 Global Pound Conference revealed that a lack of awareness of the dispute resolution options available was one of the biggest challenges faced in resolving disputes.[106] Introducing CP in law school and providing training for lawyers in CP would thus be a step in the right direction to educate lawyers. Lawyers can then in turn educate the public and raise awareness around resolving disputes collaboratively when clients consult them for help in their divorce or in resolving a dispute.[107]
38 Government support is crucial in encouraging the use of CP in Singapore. In Australia, the Government’s efforts in encouraging family dispute resolution and setting up family relationship centres led to a significant decrease in people utilising court processes.[108] Similarly in Taiwan, in the context of mediation, financial support from the Government resulted in increased usage of mediation.[109] It is noteworthy that the Singapore courts are supportive of the CP process where agreements arrived at through the collaborative process are given priority to be recorded as consent orders and parties can apply for a simplified divorce.[110] The Government could also go a step further to encourage the use of CP by waiving filing fees for divorces that have successfully gone through the collaborative process. In addition, the Family Justice Court’s plan to consider a low bono Family Law Assistance Scheme would also be a good avenue to encourage the use of CP in Singapore by making it more accessible to lower income couples.[111]
39 Ultimately, there needs to be a multi-faceted approach to encouraging CP in Singapore. The Government, legal educators, lawyers and the public need to work together to create a society where everyone seeks to resolve disputes amicably instead of rushing for the doors of the courts.[112]
VII. Conclusion
40 Singapore’s approach to family justice recognises the fact that the family justice system has a key role to play in protecting our social fabric.[113] It is uncontroversial that outcomes in family law can sometimes leave scars that never go away and that more people are affected than just those who are directly involved. Members of the family justice system need to remember that family justice is not simply about parties’ legal entitlements. Family justice has to recognise the needs of those who pass through it and seek to advance their welfare both in the short term and long term.[114] In this vein, Singapore’s Chief Justice Sundaresh Menon has acknowledged that “family disputes thus call not only for the delivery of substantive and procedural justice, but also restorative and therapeutic justice”.[115]
41 In the interest of achieving restorative and therapeutic justice in family law, Singapore’s Family Justice Court has set up a committee made up of representatives from several governmental and non-governmental agencies to review and enhance reforms in the family justice system (“RERF Committee”).[116] Part of the RERF Committee’s mandate is to explore “alternative and multi-disciplinary approaches to conflict resolution”.[117] CP falls squarely into this category, given the possibility of involving mental health and financial professionals in the collaborative process. It will be exciting to see where the work of the RERF Committee will take the Singapore family justice system.
42 It is heartening to see that Singapore’s efforts to reduce acrimony in the sphere of family law have borne fruit. This is indicative through the significant rise in the percentage of simplified, uncontested divorces in two years from 24% of all divorces filed in 2015 to 49% of all divorces filed in 2017.[118] IACP’s practice survey of collaborative divorces done over a period of four years from 16 October 2006 to 6 July 2010 revealed an 86% success rate, with a further 2% of cases resulting in reconciliation.[119] Considering this, there is a good chance that increased usage of CP in Singapore will help further increase the percentage of simplified, uncontested divorces in the years to come.
43 In conclusion, the potential for CP to maintain and strengthen relationships through working collaboratively while taking into consideration the needs and interests of couples and their children, paired with the fact that it sets the stage for effective co-parenting, means that it can achieve the therapeutic and restorative components of family justice. The reduced conflict associated with collaborative divorces also allows everyone involved to move on to new phases of their lives faster. Furthermore, the potential for time and cost savings, as well as the consequent reduction of the court’s workload, makes CP a more attractive option. The Government, lawyers and the public should all embrace CP and the benefits it can bring to family justice. Each stakeholder has a part to play: the Government supports the promotion of CP; lawyers have some sway over their clients’ choice of dispute resolution mechanism, given that they are often one of the first ports of call when a conflict arises; and the public, encouraged by both lawyers and the Government, can choose to resolve disputes amicably. If all stakeholders in the family justice system work together, Singapore can create a society that does not rush to litigate and instead first seeks to resolve conflict collaboratively, thereby preserving the family relationships that form key building blocks of Singapore society.
*The author acknowledges and thanks Cheryl Rita de Jong, LLB (Hons) University of Tasmania, for researching and assisting to write this article.
End notes:
[1] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at para 7.
[2] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 435.
[3] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at para 7.
[4] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at paras 9 and 10.
[5] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at paras 13 and 14.
[16] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[17] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[18] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin (Law Society Of South Australia) 36.
[19] Sanaa Lundgren, “Collaborative Family Practice, New Generation Divorce?” SACAC Counselling (7 September 2018).
19 Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88; Sanaa Lundgren, “Collaborative Family Practice, New Generation Divorce?” SACAC Counselling (7 September 2018).
[21] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36.
[25] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36.
[26] Sanaa Lundgren, “Collaborative Family Practice, New Generation Divorce?” SACAC Counselling (7 September 2018).
[27] Susan Hansen, Jeanne Schroeder & Kathy Gehl, “The Child Specialist Role in Client Choice of Process: Focusing on the Children and Enhancing Value” (2013) 13(1) The Collaborative Review 13.
[28] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 48, para 43.
[30] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[31] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[32] Priscilla Goy, “Low Take-up Rate for Schemes to Help Divorcing Couples” AsiaOne (19 May 2015).
[34] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[35] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[36] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[37]Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[38] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 73 and 74, paras 8 and 10.
[39]Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 72 and 74, paras 7 and 10.
[40] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 76, para 14.
[41] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 73, para 8.
[43] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[44] Cliff Buddle, “Hong Kong Divorce Professionals Promote Radical Alternative to Court Action” South China Morning Post (31 March 2016).
[45] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 3.40.
[46] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[47] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[48] Justice Debbie Ong, Judge, Supreme Court of Singapore, “Family Justice Courts: In The Next Phase”, speech at the Family Justice Courts Workplan 2018 (28 February 2018) at para 18.
[49] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 436.
[50] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 436.
[51] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 428 and 436; Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 3.41.
[52] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 435.
[53] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 48, para 46.
[54] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[55] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 3.40.
[56] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 3.40.
[57] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 48, para 46.
[58] National Conference of Commissioners on Uniform State Laws, “Uniform Collaborative Law Act” (2009) 38(2) Hofstra L Rev 421 at 435.
[59] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36; Kay K W Chan, Nicholas Hemens & Jain Brown, “First Step Going East: Collaborative Practice in Hong Kong”, (2013) 13(2) The Collaborative Review 12.
[60] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36.
[61] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 48, para 44.
[62] Laura Elizabeth Philomin, “Divorce Made Less Bitter with New Mediation Process” Today (18 May 2015).
[63] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 48, para 44.
[64] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36.
[72] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88; Yap Teong Liang, “The Family Lawyer of Tomorrow”, Singapore Law Gazette (January 2017).
[75] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013); Laura Elizabeth Philomin, “Divorce Made Less Bitter with New Mediation Process”, Today (18 May 2015).
[76] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[77] Christopher Swan, “The Interdisciplinary Collaborative Practice Model of Dispute Resolution” (2017) 39(6) Bulletin(Law Society of South Australia) 36.
[78] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 9.4.
[79] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 9.5.
[80] Shelby Timmins, “Family Law: Thinking Outside the Box: Collaborative Practice in Family Law” (2017) 31 LSJ: Law Society of NSW Journal 88.
[81] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 9.6.
[82] Australia, Family Law Council, Collaborative Practice in Family Law:A Report to the Attorney-General (December 2006) at para 9.7.
[83] Robert Merlin, “The Collaborative Process Act: The Future is Now” (2017) 91(4) Fla Bar J 53; Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[84] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[98] Kay K W Chan, Nicholas Hemens & Jain Brown, “First Step Going East: Collaborative Practice in Hong Kong” (2013) 13(2) The Collaborative Review 12.
[99] Cliff Buddle, “Hong Kong Divorce Professionals Promote Radical Alternative to Court Action” South China Morning Post (31 March 2016).
[100] Cliff Buddle, “Hong Kong Divorce Professionals Promote Radical Alternative to Court Action” South China Morning Post (31 March 2016).
[101] Kay K W Chan, Nicholas Hemens & Jain Brown, “First Step Going East: Collaborative Practice in Hong Kong” (2013) 13(2) The Collaborative Review 12.
[102] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 79–80, para 22; Yap Teong Liang, “The Family Lawyer of Tomorrow” Singapore Law Gazette (January 2017).
[103] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 85–86, para 37.
[104] Justice Debbie Ong, Judge, Supreme Court of Singapore, “Family Justice Courts: In The Next Phase”, speech at the Family Justice Courts Workplan 2018 (28 February 2018) at para 49.
[105] Jasmine Foong & Michelle Woodworth Cordeiro, “Conversation with Catherine Gale of Conflict Resolve, Lawyers and Mediators: Collaborative Law – The New Alternative to Litigation?” Singapore Law Gazette (January 2013).
[106] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 74 and 75, para 12.
[107] Dorcas Quek Anderson & Joel Lee, “The Global Pound Conference in Singapore: A Conversation on the Future of Dispute Resolution” [2016] Asian JM 70 at 86, para 38.
[108] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 42–43, para 18.
[109] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 47 and 49, paras 40 and 52.
[111] Justice Debbie Ong, Judge, Supreme Court “Family Justice Courts: In The Next Phase”, speech at the Family Justice Courts Workplan 2018 (28 February 2018) at para 54.
[112] Rajan Chettiar, “Private Mediation: The Better Way to Resolve Family Disputes” [2016] Asian JM 38 at 50, para 57.
[113] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at para 9.
[114] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at para 9.
[115] Chief Justice Sundaresh Menon, “The Future of Family Justice: International and Multi-Disciplinary Pathways” Singapore Law Gazette (November 2016) at para 11.
[116] Indranee Rajah SC, Second Minister for Law, “Supporting, Healing, Reconstructing”, keynote address at the Family Conference 2018 (8 May 2018) at para 58.
[117] Indranee Rajah SC, Second Minister for Law, “Supporting, Healing, Reconstructing”, keynote address at the Family Conference 2018 (8 May 2018) at para 59.
[118] Justice Debbie Ong, Judge, Supreme Court of Singapore, “Family Justice Courts: In The Next Phase”, speech at the Family Justice Courts Workplan 2018 (28 February 2018) at para 61.
This article was first published by PracticeForte advisory affiliate OTP Law Corporation.
“It’s been 3 years since I conducted an interview with Ms Susan Tay on practice, pupilage (or TCs), and pro bono. Since then, I’ve joined OTP Law Corporation as a trainee and now, an associate. This interview looks at the changes since then, and our reflections”.
On Training
EK: OTP Law Corporation went from having 1 trainee last year to having 3 this year. What was one lesson (or two) that you’ve learnt from having to mentor 3 trainees at one go?
ST: I think it is like having 1 child as opposed to 3? Splitting my time with 3 and then 3 very different personalities did mean some compromises. There were less focused one on one conversations; even lesser conversations about life, love and the universe.
But having 3 who then have each other, also meant that I can leave them to support each other more. I like that bit very much.
Mentoring, training and supervising a trainee into a lawyer who shares the firm’s vision of client care, professionalism and professional standards requires time, patience and loads of explanations.
I have a short fuse and year after year, I have the same resolution to lengthen that fuse. The lovely thing about my experience with the 3 trainees is that I have learnt to let my short fuse go away faster.
ST: How would you sum up your experience with us as a trainee?
EK: The best part about OTP Law Corporation are the working hours (leaving beyond 7pm is unheard of unless there’s something urgent/ important to handle) and colleagues (friendly and capable paralegals and senior, along with great fellow trainees).
In terms of work, I mainly get to do what I’m interested in: family law. I also get to try my hands at other areas of work (civil, corporate) after expressing interest. The learning curve in how best to respond to clients or figuring out the next step can be steep, but it’s also part and parcel of training/ practice.
EK: The last time we spoke about TCs, you mentioned your 2 cents on how to get them. Let’s talk about advice you’d give to trainees.
For me, it’s that work isn’t just about meeting expectations, but also how you communicate and work with colleagues and bosses. My advice is to cultivate and maintain these relationships.
Another thing I’d say (something understandable in theory versus in practice) is that failure and mistakes are part of the training. Not that mistakes are excusable, don’t be intimidated by not being good at what you’ve been assigned. That can prevent you from trying their best and learning as you go. If you’re fortunate, you’ll also have great seniors/ colleagues that you can turn to for advice or feedback whenever you’re stuck.
What advice would you give to those going through their TC/ internship?
ST: Emelia, one thing that has worked really well between us is the one to one, candid conversations we have with each other. So advice no. 1, the harder things are for you, the more we must try and communicate and understand. Sometimes, the sad thing is the fit is just not right (nicer way to say this person or place or job is not for me) but very often you will find that a good HTH (heart to heart) may be key to understanding expectations and what is still found wanting.
Remember that your boss or senior has been doing this a lot longer than you have, you will therefore definitely fall short in terms of experience and knowledge. So trust that the bosses know that’s part of the deal when they decide to train a new lawyer.
On the other hand, there is always room to improve for everyone, even the bosses. I have been learning to try lengthening my fuse for the past 30 odd years. Still baby steps.
Now how then do we communicate with each other on expectations and how else we can improve?
For any communications to be effective, there must also be respect.
Some of the toughest times during training may be when your bosses/ seniors “tell you off” for something you have done or you felt you were given the “cold shoulder” or you were made to feel like you are not good enough. Many times, these may just be your perceptions. Ask. What do you feel are my strengths after you ask what are my weaknesses?
Every other generation feel the next generation is softer or weaker. For me, it’s just a case of not communicating enough.
On Being A Practitioner
ST: What difference has there been between being a trainee and an associate?
EK: For me, the main difference is surprisingly administrative – I actually sign off documents now and can (obviously) be held accountable for them. It really forces you to take more ownership (maybe 120% over the 100% from before) and make sure what you’re doing is sound.
Being able to attend PTCs and hearings alone is a frightening but welcome change. Everyone needs the chance to do these things to fully come into their own as an associate so… as much as it makes me nervous (for now), I’m glad to do them.
Otherwise, I’d say that there isn’t much of a difference yet. I was already heavily involved in the research and drafting process of work, as well as learning how best to handle clients.
On OTP Law Corporation
EK: One of the interesting things about OTP Law Corporation is that there’s always a new project on the horizon (e.g. Project Mediate, PF Restructure, Relocation). What was the inspiration behind these projects, and what more can we expect in the near future?
ST: OTP Law Corporation prides itself always on being creative. We also like doing things differently (without compromising the Firm’s vision of course)
If I may say this, all 3 directors, in particular, Mylene, are creative. One past time we all share is throwing “harebrained schemes” at each other. The crazier, the funnier, the better. But beneath all that is our sincere belief to do better for clients, that many of the people who need our help really deserve better.
Also, being part of an advisory with so many different professionals and as many different ideas and expertise, enriches our initiatives and projects.
We don’t think the current way legal services are rendered is in any way close to the best way. So together with the affiliates in their respective industries (e.g. mental health/ financial/ business), we want to keep coming up with projects/ programmes to help resolve issues, preserve rights, keep relationships. These projects/ programmes are rolled out only after hundreds of conversations we have with each other, with clients, with colleagues, with you young lawyers, families and friends.
The other thing is OTP Law Corporation’s founders were just in our 20s when we started the firm; that verve and personality we brought to the firm when we were that young never really went away. Of course, we have our knocks and after that we went into hiatus and maybe did a little crying (ok, a lot of crying) but we almost always bounced back. By the way, that’s why having young lawyers in OTP Law Corporation is something we take very seriously. I think people underestimate the resilience of the youth.
That energy combined with the wisdom and knowledge acquired after so many years of practice and dealing with so many cases, plus that burning belief that we can do better for clients gave us the insights required when PracticeForte and us designed the projects/ programmes.
EK: What have been the highlights of being part of this Advisory (besides the great parties)?
ST: Definitely the fact that unity is strength. It is like we are part of a big set up but yet with the nimble of the small. So many different professionals coming together lend so much more depth to the level of services we can provide to client. We can truly say we are cross functional.
I really love and believe in the twin pillar focus of the advisory, of Building Peace, Building Expertise (which you can read more about here.
AND DEFINITELY THE PARTIES 🙂
EK: For me it’s been the different workshops we have, where we hear different perspectives on the same issue. Take divorce and adultery – I think the legal process is pretty standard. But hearing from counsellors (Mr Lai Mun Loon) and private investigators (PrivateEye) on their role in such cases was enlightening. While this is fact dependent, I find myself considering more carefully the impact divorce has on parties and their children as individuals versus simply what their legal rights are.
Plus, the other attendees are the different affiliates as well, which makes for great discussions with their perspectives/ knowledge. [Note: I’m not trying to hardsell PracticeForte here but as most affiliates are also friends, the discussion can get quite candid and lively]
With that, I think we have come to the end of this interview. Until next time! Thank you Susan.
This article was written by Eric Lip and Emelia Kwa, associates at OTP Law Corporation. Both passages below are a fictional re-telling of the facts of the case, to provide each party’s possible perspectives.
UYT v UYU – Are parents always liable for their children’s maintenance?
A son’s thoughts
My parents divorced when I was 8 years old. Back then, they had decided that my dad wouldn’t have to support me financially. For the rest of my life, my mum was the one who single-handedly raised me and supported me, without any help from my dad.
Over the years, my dad began life anew and remarried. I now have two step-brothers. My dad has been able to send them overseas. I’ve been thinking about going overseas for the longest time and even told my dad about this. He has never protested against funding me for it.
Once I graduated from polytechnic, I realised that the best way to begin my career was to pursue a degree in Journalism. In support of this, I did extensive research on my options. Due to my grades, my best bet was to head to Canada and take up a preparatory course before trying for admission into the University of Alberta.
I spoke to my dad about my decision. While somewhat hesitant, he did agree to support me financially, and asked for particulars on my intended courses to be given to him. I did this, and even gave him the Letter of Acceptance from my preparatory course.
To my surprise and dismay, my dad eventually fell silent and didn’t respond to my messages.
I was stuck. I couldn’t obtain any bank loans for my education, and my mum was barely earning enough to make ends meet. Because dad wouldn’t answer me, I couldn’t start my life afresh and missed the school intake that year.
I felt that I had no choice but to file an application for maintenance.
A father’s plea
Dear Son,
You were 8 years old when your Mother and I got a divorce in October 2004. At the time, we agreed that I will not be paying any maintenance for you. Through the adversity, your Mother has provided well for you financially and brought you up capably.
It has been 14 long years since then and we have all started our own new lives. I am now happily remarried and have two sons.
But dear son, why have you started this lawsuit against me?
You know I have always supported you and encouraged what you wanted to do. When you told me about your plans to study overseas, I was genuinely glad to hear that you wanted to further your education. I wanted to support you, both in spirit and financially. I wanted you to improve yourself.
However, I had my reservations. You’ve had a tough time in a local polytechnic and haven’t been able to do well academically. I am worried about you. Would going to an overseas university be the best option for you? There are always many other routes to success. You are now already 22, and you have a bright future ahead.
I know you have other reasons for wanting to leave. You do not like to stay in Singapore even though that is your home. You do not like the rules, you do not like National Service. Studying overseas provides an opportunity to escape to a different country.
As a father, all I ask is for you to be sure of your decisions. If you truly want to improve yourself and further your education, study hard in Singapore first and re-take your exams before applying for universities. Do not make hasty decisions, and do not be selfish.
I do not wish to compromise on your welfare, but I have a family to feed and provide for as well. Attending university is for you to improve your employability in the future. You should not see it as some sort of last opportunity for you to spend someone else’s money while enjoying yourself. This sudden “lump sum payment” is a significant financial demand from me.
Dear son, do understand my difficult predicament. I know I have a duty to provide for you as a parent. I am happy to fulfil that duty and I truly do want to see you succeed. But do not exploit this for the wrong reasons.
Love,
Dad
Case analysis
This case revolved around whether a father needed to pay for his son’s maintenance, which was mainly for his education overseas.
The father, who was unrepresented, sought to argue that he should not have to pay.
Reasoning
The Court took a 3-step approach in determining whether maintenance needed to be ordered:
Was maintenance necessary?
If yes, was there refusal or neglect on the father’s part?
If yes to 2., what was a reasonable amount of maintenance?
Was maintenance necessary?
Parents have a duty to maintain their children until they reach 21 years old. While the son here was above 21, he fell under an exception covered by s 69(5)(c) of the Women’s Charter, i.e. he should be maintained as he was still schooling.
It was found that maintenance was indeed necessary. This was based on the son’s ability to prove that his desire to study in Canada was to improve his employability in the workforce.
Was there refusal or neglect on the Father’s part?
The question before the court was whether the father had neglected or refused to provide reasonable maintenance, or whether he simply could not afford to do so.
They found that there had been “some representation made to the Son that the Father would assist financially”. This was since an email had been sent from son to father regarding the tuition costs. Such an email would only have been sent if the father had agreed to support him.
There had also been no evidence from the father showing that he was unable to afford supporting his son. Instead, his reasons for denying financial support ranged from:
The son did not give him the relevant documents for a bank loan and in any case, his income did not qualify him for a loan;
He was doubtful that his son would do well in his education overseas; and
He alleged that his son wanted to go overseas not for education but for some other agenda.
Thus, it was found that the father had refused to contribute to the son’s maintenance on the basis of leading a lifestyle he disapproved of.
What is a reasonable amount of maintenance to be paid?
Ultimately, the court decided that the father would have to pay 60% of the son’s education expenses (i.e. tuition fees, airfare, accommodation and textbooks). This was based on the income of both parents.
In determining this, the court bore in mind the basic principle that both parents should shoulder the duty to maintain their children. They thus recognised that the son was not completely reasonable in seeking that the father to be solely responsible for maintaining him.
Concluding remarks
Although the parents had originally agreed that the son would not need to be maintained, this did not preclude the son from taking out a maintenance application by himself per s 69(3)(b).
Parents thus need to know that their duty to maintain their children remains, regardless of what previous court orders have been given. This would align with how orders for maintenance can be varied, so long as a material change in circumstances has arisen and been proven.
As it stands, the father has appealed against the decision in the case cited.
Familial disputes are never easy, and are made more gut-wrenching when the parties are parent-child. While a son/daughter undoubtedly has the legal right to apply for maintenance, resorting to litigation will inevitably worsen relationships. Perhaps the parties are better served adopting a peace approach where a safe environment can be created for grievances to be aired? This can be by way of mediation or negotiations through family lawyers.
Whether it is negotiations or mediation, the likelier outcome will be one within parties’ financial and even emotional means. Parties’ relationship may remain unscathed, or even stronger, after they communicate.
This article is written by Chloe Chua Kay Ee – National University of Singapore, Faculty of Law
On 16 October 2019, a couple of friends and I attended the Cross-Border Mediation Masterclass jointly organised by PracticeForte, ALSA Singapore and SMU Law International Relations Club. As final year law students who are keen on going into family law, this 4-hour workshop was deeply enriching and beneficial to us. Furthermore, it managed to be what most typical law classes have failed to be, it was fun!
The Masterclass could be broadly categorised into 2 categories – the seminars, which equipped us with the fundamentals of cross-border mediation and gave us insight into practical experiences, and the role play, which allowed us to directly apply our learnings from the preceding seminars.
The Seminars
It was a true privilege to listen to and interact with the 4 guest speakers.
Ms. Susan Tay and Mr. Rajan Chettiar, both seasoned veterans in family law, condensed the law on international mediation for us greenhorns and infused their seminars with personal anecdotes that kept us engaged and receptive. They made us realise that, given the unstoppable force of globalisation, cross-border disputes are no longer the exception these days. Furthermore, they helped us see the benefits of mediation as opposed to litigation. Not only did we get to hear from their perspectives as mediators, we also received a very instructive 5W1H rundown on being a mediation advocate by Ms. Tay. This was particularly useful as it gave us insight to a lawyer’s role in mediation such that we would be better placed to serve our future clients.
In addition to building up our legal foundation on this alternative dispute resolution, the Masterclass also provided us with a holistic perspective of mediation through Dr. Peter Loke and Mr. Lai Mun Loon’s seminars.
Dr. Loke, an accomplished medical mediator, told us that the biggest driver of complaints against medical practitioners stem from dissatisfaction with their patient-communication and the rationale behind this is a mismatch in expectations and reality leading to disappointment and anger. Through this, he emphasised the power of empathy, care and/ or remorse and how these tactful emotions can make a world of a difference. His advice crosses contexts and seems to be universal to all who wish to be effective communicators.
Mr Lai, with his background in social work and experience with both counselling and mediation, showed us how the two disciplines intertwine and diverge. Instructively, he taught us how to identify which type of cases are ready or suitable for mediation and which are not as well as how to identify when cases should be referred to for counselling. Given the wealth of practical advice we had received, we were all very thankful that we had the opportunity to attend such a fulfilling workshop.
The Role Play
The simulation exercise we were given involved us role playing as mediators, observers and parties to a cross-border family dispute where one party had begun Hague proceedings (a civil remedy to parents seeking the return of a child wrongfully removed or retained across international borders) against his spouse for refusing to return their children to their country of residence.
Although most of us had little to no experience with mediation prior to this Masterclass, we thoroughly enjoyed ourselves in our various roles. As the ‘mediator’, I found myself relying on what I had just learnt from the seminars to help me in my role. I listened actively to the parties, showed empathy, and reframed their own words back to them when I was in doubt. Personally, it was a rather exciting first attempt at mediation.
One of the biggest highlights of the workshop was witnessing a fishbowl exercise with Mr. Lai as the mediator and Ms. Tay and Mr. Chettiar as the parties. The latter two’s commitment to their roles brought forth the complexities and tensions in real life mediation. In the short but effective exercise, Mr. Lai seamlessly employed a great number of useful techniques such as asking hypothetical questions and reality testing the parties’ suggestions, normalising what the parties are going through and breaking into separate sessions to better deal with each party. The general takeaway from this would be the importance of the control of the mediator in order to successfully apply the mediation tools.
At the end of the workshop, participants received a beautiful certificate of appreciation as well as the option to have the slide decks from the workshop emailed to us. Full of guiding tips and helpful information, these valuable slides coupled with the invaluable workshop experience will definitely come in handy as we make our foray into the legal profession. Indeed, on top of the sheer number of takeaways from this one workshop, the entire experience was a true delight. The atmosphere was welcoming and friendly and the environment was highly conducive for learning. The 4 retrospectively short hours spent at SMU were so beneficial and enjoyable that this attendee would like to convey her sincerest gratitude to the organisers of this Masterclass.
By PracticeForte foreign affiliate member Apolinario L. Caymo II
Many Filipinos divorced abroad make the mistake of remarrying without first going through the formalities required by Philippine law. While a divorce abroad dissolves that marriage in that country, this does not mean that the Filipino/Filipina divorcee automatically has the right to marry again under Philippine law. To avoid future inconveniences for divorced Philippine citizens, LEGAL One tackles the most common questions about judicial recognition of foreign divorce decrees.
1. Q: I am a Philippine citizen who obtained a divorce decree in a foreign country. Can I now legally marry under Philippine law?
A: No. Before you can legally marry again, you must have that divorce decree judicially recognized in the Philippines.
2. Q: What is the action required to have the divorce decree judicially recognized or enforced in the Philippines?
A: This can be done by filing a petition for the recognition of the foreign divorce decree before the Regional Trial Court (RTC) in the Philippines.
3. Q: Is judicial recognition of the foreign divorce decree in effect a petition for annulment or declaration of nullity of the foreign marriage in the Philippines?
A: No. The petition for the recognition of the foreign divorce decree is not the same as annulment or declaration of nullity of marriage under the Family Code.
4. Q: What, then, is the purpose of the filing of a petition for the recognition of the foreign divorce decree in the Philippines?
A: It is merely to prove the foreign divorce as a fact and that it was made in accordance with the laws of the country where it was obtained.
5. Q: What documents or evidences do I need to present in the RTC for the recognition of the foreign divorce decree?
A: To prove that the foreign divorce decree was validly obtained and issued in accordance with the law of that country, you must present the Original or Certified True Copy of the foreign judgment or order.
6. Q: After the divorce decree is recognized by the RTC, are there other steps to comply with to capacitate me to remarry?
A: Yes. The decision granting the petition recognizing the foreign divorce decree and the Original or Certified True Copy of the foreign divorce decree or order must be annotated/registered with the Office of Local Civil Registrar (LCR) of the place of the RTC which granted the petition. After having it registered/annotated with the proper LCR, the registered documents along with the Original or Certified True Copy of the Certificate of Finality of the decision of the RTC, shall be submitted to the LCR where the marriage is registered.
This article is a follow-up to our previous article on the Peace Approach and Children,. This was written by Nur Shukrina Bte Abdul Salam, an intern of OTP Law Corporation.
Apart from helping children go through the divorce process and reducing acrimony, the peace approach also reduces unnecessary litigation. This is done by diverting conflicts that can be settled through alternative dispute resolution (“ADR”) to the relevant channels.
Courts can thus allocate their resources more efficiently and avoid being treated as a “boxing ring”, i.e. a place where sort out small differences between them whenever they wish.
In our view, one such instance where the peace approach could have been used is that of Goh Rosaline v Goh Lian Chyu and another [2019] SGHC 133.
Letting sleeping dogs lie
This case concerned a familial dispute between brother and sister. Their deceased mother had left a house to her ten children and grandson. The Plaintiff, who had moved out of the house when the Mother passed in 2002, wanted to move back in along with her dogs. The Defendant agreed that she had a right to move into the house, but he did not allow her to bring the dogs to stay with them.
Justice Choo Han Teck (“the Judge”) expressed his frustrations as to why this dispute was even brought to court in the first place. He emphasised that the court was “not where one goes to for permission to keep pets” and it was “not a dog licensing authority”. Yet, the court was forced to adjudicate on a frivolous matter simply because parties insisted on litigation instead of amicably mediating it out.
While the matter was resolved (the Plaintiff could bring her dogs to the house), it was the relationship between the parties that had suffered. As observed by the Judge himself, the parties would have torn each other apart, leaving the dogs as “the most benign occupants in the house”.
Moving forward
It is thus evident that the courts feel strongly against wasting resources, especially when forced to adjudicate on issues which could have been settled through other means.
Understandably, there will still be some cases litigation is impossible to avoid due to the irreparable breakdown of communication between parties. In those instances where litigation is necessary, the lawyers then take on the responsibility of setting the right tone. Not only should they behave respectfully towards one another, they should also attempt to facilitate peaceful proceedings where possible. This would help reduce the animosity between parties.
At PracticeForte, in line with our slogan “Building Peace, Building Expertise”, we are doing our part to adopt the peace approach when dealing with family disputes. We believe that in holding ourselves to the ethical standards expected of a lawyer, our expertise should include the ability to reduce acrimony, build peace, and keep peace, between our clients and the other party. Something as simple as keeping our letters respectful and amicable, instead of fighting fire with fire, can sometimes go a long way in re-building the peace between parties.
At the end of the day though, we are aware that the success of adopting the Peace Approach would still depend on the clients’ willingness to cooperate. Thus, there is still much that can be done in terms of encouraging clients themselves to maintain peace.
As was remarked by the court in the recent case of UUO v UUP [2019] SGFC 44 involving a divorce matter, “it is always easier to start a war and destroy than to heal and construct. The court can hope to heal, but only the parties themselves can help reconstruct.”
This article is written by Nur Shukrina Bte Abdul Salam, an intern of OTP Law Corporation and Emelia Kwa, an associate of OTP Law Corporation
When families go through disputes, be it over a divorce matter, an inheritance matter, or any other family-related conflict, it can get very acrimonious due to the personal nature of the issues. This is especially so when parties are involved in litigation, where parties perceive there to be a ‘winner’ and a ‘loser’. Consequently, parties go on the offensive to protect themselves. It is an incredibly stressful process that takes a toll on everyone involved, with little or no hope of peace between them, even after the process ends.
At the Family Justice Forum 2018, Minister for Social and Family Development, Mr Desmond Lee, shared how the Family Justice Court (FJC) is moving towards a peaceful approach in dealing with familial disputes. More counselling and mediation would be provided to steer parties away from litigation. This would help repair relationships and re-open communication family members, to minimise acrimony and maximise the possibility of a positive outcome.
For children, who are often the real victims of divorce, the peace approach is especially important and beneficial.
Parties can get so caught up in their conflict that they forget about the impact it has on their children. This may be the first time that their children are exposed to all the skeletons in the closet. Children may also be poisoned by all the allegations thrown at each parent. Parents often fail to realise that while a divorce may cost them a bruised ego, the child being dragged along would be bruised and battered by the end of the process.
Parenting co-ordinators
To mitigate the negative impacts of divorce on a child, the FJC has set up the parenting co-ordination program. A parenting coordinator would work directly with both parents to facilitate communication and to help resolve disagreements. Parties would then not need to resort to fighting these issues in court. The parenting coordinator can directly impact the best interests of the child by educating parents on their impact and reducing conflict.
Child Representative
The Child Representative scheme helps to ensure the voice of the child is heard both by the parents, and by the court. A Child Representative’s purpose is to represent the child’s best interests, and ensure that this is reflected in decisions concerning the child. This can serve as a form of emotional support for the child: not only can they express their views, they are also being involved in decisions as to their future.
Mediation
The FJC has also made it compulsory for parents to attend mediation and a Family Dispute Resolution (FDR) conference. By providing them with a safe space to have honest conversations in the presence of a neutral third party, parties are more likely to remain civil. Mediators will also remind parents that whatever outcome reached must be in the best interests of the child.
By taking a peaceful approach, we can significantly shield the child from the animosity between both parents. One can only hope that such an approach would also spark more awareness in parties to put their children first, and not to let their conflict affect their ability to be the best parent for the child.
