Divorce Mediation in Singapore is also known as Family Mediation in Singapore

 

Divorce is emotionally stressful for all parties involved. Traditionally, contested divorce proceedings primarily involve litigation in court.
Today, however, the law provides for two alternative routes through Divorce Mediation/Family Mediation (called “Court-based Family Mediation” and “Private Family Mediation“) to resolve disputes arising from a divorce.

 

1. What is “Mediation”



The primary ADR process involved in divorce proceedings is mediation, an alternative dispute resolution approach which was first used in the mid-1990s. This is a process where a neutral third party is involved in helping both parities reach a conclusion to the disputes that is satisfactory to both sides as far as possible.

1.1 Stages of a Mediation
The way a mediation is conducted varies, sometimes greatly, from one mediator to another. Typically, a mediation involves four key stages

Stage 1: Introduction – Mediator explains the purpose of the mediation and his role to build trust and confidence in the mediator and the process

Stage 2: Information Exchange – Each party makes a brief statement of their position to allow everyone to understand to the nature and issues of the conflict

Stage 3: Problem-Solving – Options for resolution are discussed. This may involve caucuses, i.e. private meetings between the mediator and each party individually. This is to allow the mediator to understand the nature of the conflict and the root cause(s) of the problem(s).

Stage 4: Settlement – Parties may sign a memorandum or agreement listing the terms of the settlement.

1.2 Mediation Styles
The strategy that mediators choose to employ is highly dependent on the issue before them. In general, there are three different mediation styles:

(1) Facilitative – Helping parties find solutions to the underlying problems as well as assisting parties in communicating and negotiating an agreement.

(2) Evaluative – Mediators who are subject-matter experts primarily evaluates the case and provides an assessment in relation to the potential legal outcomes of the case.

(3) Transformative -Building new understandings and re-orienting parties’ views and approach towards each other in order to achieve harmony and cohesion

In the context of family, and specifically divorce, dispute proceedings, it is the “transformative” style which is used in most situations.

1.3 Purpose of Mediation
Mediation is non-adversarial in nature. The end goal is not to achieve a “win-lose”, or even a compromise. Rather, mediation actively works towards a “win-win” solution for all parties involved.

1.4 Collaborative Strategy
Mediation, in the family context, adopts a consensus-building or collaborative strategy to settle disputes. In cases of divorce, this is most important in the context of allocation of assets and funds. When applied, the collaborative approach involves three key steps:

Step 1: Pre-Negotiation– Involves identification of proper representation, agreement on the mediation agenda and protocols and joint fact-finding process

Step 2: Negotiation- Involves proposing options of agreement as well as consolidating options into an agreement

Step 3: Implementation – Involves monitoring of agreement and possible re-negotiation, if required.

The object of this collaborative process is to build a common understanding between parties, through these three steps. Taken together, these steps help the parties work towards seeing different aspects of the problems they face, which they may or may not have considered prior to entering into mediation. In sum, this non-adversarial approach to resolving disputes actively encourages the parities to understand their differences and explore solutions they may not have previously considered.

2. Benefits Of Mediation



According to Mediation in Singapore: A Practical Guide, the benefits of mediation include:

(1) Allows parties to ‘save face’

(2) Platform for expressing emotions

(3) Unveil hidden agendas

(4) Facilitates dialogue between parties

(5) Possible use of creative remedies, which may be non-legal.

(6) Encourages parties to move away from the past and look towards the future.

(7) Parties in control of the process

(8) Parties can choose their own outcomes

Chief Justice Chan Sek Keong, in Lock Han Chng Jonathan v Goh Jessiline [2008] 2 SLR 455, citing The Judiciary, Singapore: Annual Report 1996,“The resolution of conflicts through mediation results in the saving of time and costs.”

Apart from practicalities of costs and time, it has also been recognized that mediation, compared to litigation, reduces anxiety and creates a healthy environment where parties have the opportunity to resolve their disputes in a non-trial and -adversarial setting. The reason for this is that the parties, in a mediation, are empowered to make a decision by their own volition rather than submitting their disagreements to the sole purview of a judge sitting as a third-party decision-maker.

There are a wide range of benefits that mediation, rather than litigation, offers the parties. Mediation promotes active communication through a more conducive platform. There, the parties are at liberty to address both the mediator and each other at the same time and dispense with the traditional formalities and decorum that litigation requires. This goes to prevent the escalation of tension and emotions, adversely affecting all parties, and prevents any further conflict from arising both inside and out of the courtroom.

Mediation also helps to uncover the gamut of underlying emotions and frustrations which may well be kept in the background in traditional adversarial dispute resolution avenues. Conversely, litigation is also not the appropriate avenue to resolve such emotional issues, though they will, in some circumstances, be taken into account by the judge in making a decision. This is especially important where children are involved, because parents are generally seen as being in the best position to know what is in the best interests of the child. A mediated agreement is generally recognized as one that has greater longevity.

An additional benefit of solving disputes through mediation is that it effectively helps to minimize further long-term damage to the relationship, a paramount consideration in divorce proceedings involving children. However, it must be admitted that the use of mediation over litigation as the means of resolving differences will not invariably eliminate the impact on all parties involved, especially the children.

Associate Professor Debbie Ong of the National University of Singapore (NUS), in The Art of Family Lawyering, wrote that a “successfully mediation” is predicated on three ideal outcomes, including,

Parties are satisfied that their most pressing concerns are addressed in the settlement agreement. This leads them to be more likely to adhere to the terms of the agreement.

Lawyers feel that the settlement agreement were within the vicinity of foreseeable outcomes had the dispute gone before a judge. The terms are also realistic and practical to adhere to.

Mediator is satisfied that the outcome is fair to both parties.

In general, if the outcome of a mediation ticks the above boxes, it can be said to be a successful one.

In totality, mediation has proved to be the most effective ADR approach in family, especially divorce, disputes. This is because of the consensual, cost-effective and efficient way of resolving differences between both parties.

3. Modes Of Alternative Dispute Resolution (ADR)



Though legally separated, parents remain responsible for the welfare of their child(ren). Issues such as the changing rights and responsibilities of parents, acting as co-parents, and more importantly the needs of the children.The use of mediation as the ADR mechanism in the FRC is aimed at encouraging the parties to cooperate and reach a compromise, rather than pursue their legal demands in a trial.

Mediation provides the best route to that end because the nature of the proceedings is such the parties’ views are put front and centre of the discussions. This allows the parties to feel that their positions have been given due consideration and help them to understand the needs of their children. In sum, one of the most important aims of pursuing non-adversarial means of dispute resolution is to minimize the impact of the divorce on their children.

1.1.1.1 Specialists Involved
Judge-Mediators who are specially appointed Judges specializing in family mediation, and Family Counsellors who are specially appointed Court Mental Health Professionals with expertise in child welfare and family related matters.

1.1.1.2 What Happens During Mediation?
The Judge-Mediator will meet with the parties and their lawyers to discuss the legal aspects of the case. The Judge-Mediator will also help parties resolve issues related to the child, and other related disputes.

The Judge- Mediator may speak to your lawyers together with the parties or separately either just with lawyers or with parties. The Judge-Mediator can have joint sessions with everyone or private sessions with each party. The purpose is to identify and define the issues in contention and to get a good idea about the case. The Judge-Mediator will be asking various questions and may also request the production and exchange of information and documents between the parties. The Judge-Mediator will also brainstorm with the parties on possible options available. In the process, the Judge-Mediator will also help parties reality test their proposed options for viability.

A co-mediation session may be necessary if the Judge-Mediator considers that there are complex legal and emotional issues. Here, a Judge-Mediator and a Family Counsellor will help the parties and lawyers to address the issues holistically. Sessions may also be held for the child to speak with the Judge-Mediator and/or Family Counsellor.

1.1.2 The Maintenance Mediation Chambers (“MMC”)
The MMC is primarily responsible for the resolution of disputes over maintenance (i.e. monetary support) for both the spouse and child. However, the jurisdiction of the MMC is not restricted to only post-divorce settlements. It is also responsible for facilitating the resolution of pre-divorce conflicts over maintenance.

1.1.3 The Child Focused Resolution Centre (“CFRC”)
Where minor children (i.e. aged 14 and below) are involved in a divorce, the parents are required to attend mandatory counselling conducted by the CFRC. In contrast, where couples have children between ages 14 and 21, they are required to attend mediation at the Family Court to address children and other ancillary matters (see above).

The CFRC aims to help parents:

Identify and promote their children’s best interests through mediation and counselling

Build an appropriate and sustainable parenting agreement that allows their children to have meaningful relationship with both parents

Effect positive co-parenting that is sensitive to the unique needs of their children

Primarily, the goal of the CFRC is to provide and “early conciliatory forum” to parents who are looking to divorce. The prevents the parties from becoming entrenched in the dispute and move forward with the focus on the needs of their child. In circumstances where the one or both parties refuse to do so, the court may make an appropriate order to take into account non-attendance.

In general, the programme comprises three or four essential elements, depending on the specific circumstances:-

There is no general rule of thumb that parties have to attend all four elements of the CFRC programme, apart from the Conference. Whether parties are required to attend counselling, mediation or co-mediation is highly dependent on whether the issues can be adequately resolved at the Conference stage.

Riding on the effectiveness of the CFRC in using counselling and mediation to help reduce the acrimony between feuding parties, the Family Justice Courts now have the power to direct parties to attend counselling and mediation sessions in any suitable cases that come within its purview.



(B) Private Family Mediation
Private family mediation seeks to achieve a few different outcomes. First, parties who value privacy and prefer few or no details are leaked to the general public will pursue this course of action. Next, parties are empowered to decide on the time frames in achieving the objectives of the mediation, compared to timeframes decided by the court in court mediation. Further, the “out-of-court” environment, definitive of this ADR mechanism, facilities the likelihood of resolving complex familial issues in an amicable atmosphere.

In Singapore, the two most popular avenues of private family mediation are:

Family (Matrimonial) Mediation Scheme
Collaborative Family Practice

1.2.1 Family (Matrimonial) Mediation Scheme
In 2010, the Singapore Mediation Centre (“SMC”) launched the Matrimonial Mediation Scheme. Under this Scheme, a small group of family law practitioners was accredited by the SMC to handle the mediation of divorce cases. The aim of this Scheme is to resolve matrimonial disputes amicably, in a time- and cost-efficient way.

Broadly, the aims of the MMS are:

Encourage a constructive and conciliatory approach to dispute resolution.

Timely and effective resolution.

Maintenance of long-term relationships and reduction of emotional stress for all parties involved.

Ensure that ADR is affordable to all parties.

Typically, a broad range of issues, including custodial, maintenance and division of matrimonial assets, are considered and within the purview of the mediation forum.

Most importantly, the SMC involves accredited matrimonial lawyers from their Panels of Principal and Associate Mediators to mediate disputes under the MMS. Mediators will invest a full day to help the parties mediate and resolve their differences.

1.2.1.1 The MMS process
The mediation process under the MMS is conducted by the SMC according to the Mediation Procedure.

Parties seeking to mediate their divorce are required to send the completed “Request for Mediation” form to the SMC.

If only one party initiated the mediation the SMC will,

within fourteen (14) days from the date of request contact the other party to persuade him / her to participate in the mediation process; and

within twenty-one (21) days from the date of request inform both parties whether mediation can proceed.

Parties will enter into a Mediation Agreement before the commencement of any mediation proceedings.

These agreements may be electronically recorded and signed in counterparts.

Upon entering into the Mediation Agreement, the SMC will appoint one or several Mediator(s), according to the requirements of the specific situation.

A person selected as a Mediator will disclose any circumstances likely to create an impression of bias or prevent him from acting promptly. SMC, upon receipt of such disclosure, will appoint another person as a Mediator, unless the parties decide otherwise.

The Mediator:

(a) will prepare himself appropriately before the commencement of mediation;

(b) will abide by the terms of the Mediation Agreement and the Code of Conduct in Annex C;

(c) may assist the parties in the drawing up of any written settlement agreement; and

(d) will, in general, facilitate negotiations between the parties and steer the direction of the discussion with the aim of finding a mutually acceptable solution.

Most importantly, the Mediator(s), or any member of his firm or company, should not act for any of the parties at any time in connection with the subject matter of the mediation. Im addition, the Mediator(s) and SMC are not agents of, or acting in any capacity for, any of the parties.

Exchange of information

At least five (5) days before the mediation, the parties will provide each other, the Mediator(s) and SMC the following:

(a) a concise summary (Summary) stating its case; and

(b) copies of all documents referred to in the Summary that the party wishes to rely on at the mediation.

Each party may also convey, in writing, to the Mediator(s) and SMC information which it does not want to disclose to the other party(s).

In addition, the parties should try to agree to the maximum number of pages to be contained in their respective Summaries and on the maximum number of pages of supporting documents to be submitted. The parties should also try to agree on a joint set of documents.

The Mediation

It will be conducted in confidence, and no transcript or formal record will be made. No audio-visual recording will be made of the proceedings.

Only the Mediator(s), the parties and/or their representatives and/or advisors will be permitted to be present during the mediation.

All communications made in the mediation, including information disclosed and views expressed, are made on a strictly ‘without prejudice’ basis and shall not be used in any other legal proceedings.

The Mediator(s) may obtain expert advice in technical matters with the consent of the parties, who shall bear the expenses incurred.

The Mediator(s) may conduct joint meetings with all or separate meetings with each of the parties, whether before or during the mediation.

Where no settlement is reached, and at the request of all parties and if the Mediator(s) agrees, the Mediator(s) will produce a non-binding written recommendation of the terms of settlement. Such a recommendation will only be the Mediator’s own assessment. Except with the consent of the Mediator(s) and of all parties, it shall not be used in any proceeding of whatever nature.

Settlement Agreement
No settlement reached in the mediation will be binding until it has been reduced to writing, whether in the form of traditional or electronic documents, and signed by or on behalf of the parties.

1.2.1.2 Termination of Mediation
Any of the parties may withdraw from the mediation at any time by giving notice of withdrawal in writing to SMC, the Mediator(s) and the other party.

The mediation will terminate when:-

(a) the other party withdraws from the mediation;

(b) a written settlement agreement is concluded;

(c) the Mediator(s) decides that continued mediation is unlikely to result in settlement; or

(d) the Mediator(s) decides that he should withdraw from the mediation for any of the reasons stated in the Code of Conduct.

1.2.1.3  Rules on Confidentiality
All persons involved in the mediation will keep confidential:

(a) the fact that mediation is to take place or has taken place;

(b) any views expressed, or suggestions or proposals for settlement made in the course of the mediation;

(c) proposals suggested or views expressed by the Mediator(s);

(d) the fact that another party had or had not been willing to accept a proposal for settlement made by the Mediator(s); and

(e) all information (whether oral or in writing) produced for or arising in relation to the mediation, including any settlement agreement, except as directly necessary to implement and enforce any such settlement agreement.

In addition, all documents (including anything stored electronically) or any other information produced for, or arising in relation to, the mediation will be privileged, and will not be admissible as evidence or discoverable in any proceedings connected with the dispute. The exception to this rule is where such documents would have in any event been admissible or discoverable.

1.2.1.4 Financial Costs and Fees
Each party will bear its own costs, expenses and disbursements of its participation and the fees of its advisors in the mediation.

There are two fees payable to the SMC — (a) Filing Fee and (b) Mediation Fee.

Filing Fee

Each party is required to pay a non-refundable Filing Fee of $267.50 (inclusive of GST) to SMC for the provision of administrative and support services. This will be collected within three (3) working days after SMC has acknowledged the receipt of the Request for Mediation. SMC will only proceed to make administrative arrangements for the mediation upon payment of the Filing Fee from all parties named in the Request for Mediation.

Mediation Fee

The Mediation Fee payable to SMC is $2,140 (inclusive of GST) per party per day, excluding overtime charges after 6pm. This fee goes towards the mediator’s fees, rental of premises at the Supreme Court, and food and beverage charges.

However, note that should parties choose their own Mediator(s), the selected Mediator(s) is/are entitled to charge his/her commercial rates and the above Mediation Fee will not be applicable.

Additional charges?
Parties will be required to pay overtime charges and room rental charges when a mediation:

(i) lasts beyond 6:00 pm on a weekday; or

(ii) takes place on a weekend or a Public Holiday.

Overtime charges will be charged at a rate of $428 (inclusive of GST) per two hours or part thereof for Mediator(s) and at a rate of $214 (inclusive of GST) per two hours or part thereof for SMC staff. The SMC will advise parties on the room rental charges applicable depending on the venue of the mediation. Both overtime charges and room rental charges will be borne by the parties in equal portions.

1.2.2 Collaborative Family Practice (“CFP”)

CFP was introduced by the SMC in 2013. It seeks to help the parties reach a consensus which fulfills the needs of both sides. Commenced before any court proceedings are initiated, the CFP therefore aims to prevent the parties going into litigation, thus avoiding the emotional distress associated with adversarial procedures.

Click to read more details on the Collaborative Family Practice.

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