POSTED 9 Sep 2019 - 11:46

What is the biggest consideration for a business when seeking to resolve a commercial dispute?

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How will the new Singapore Convention on Mediation affect the decision?
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Top Response

Jason Hammond, Chief Executive Officer, QBE Asia

Commercial disputes erode trust that has often been painstakingly built over time. The mediation process works well in helping maintain this hard-earned trust in these situations, as it seeks out a mutually agreed resolution rather than one determined and enforced by the courts. The Singapore...

Responses

Jason Hammond, Chief Executive Officer, QBE Asia
9 Sep 2019 - 11:50

Commercial disputes erode trust that has often been painstakingly built over time. The mediation process works well in helping maintain this hard-earned trust in these situations, as it seeks out a mutually agreed resolution rather than one determined and enforced by the courts. The Singapore Convention on Mediation legitimises the mediation process further, ensuring that resolutions derived are legally enforced in jurisdictions that have ratified the treaty. This can only benefit businesses and our stakeholders as our operations become increasingly borderless. As more countries come on board, I feel that mediation will soon become the go-to for commercial disputes, preserving trust and, importantly, collaboration within the global business environment.

Bazul Ashhab, Managing Partner, Oon & Bazul LLP
9 Sep 2019 - 11:49

The pronouncement of a victor in a bruising battle is necessary to dictate future conduct. An adversarial process which is effective in determining who is the offending party can damage relationships permanently.

Mediation is an alternative to avoid the animosity in dispute but was viewed as ineffective in the past. The Singapore Convention on Mediation provides teeth to a resolution brought about by mediation as it allows for the cross-border enforcement of mediated settlement agreements between commercial parties. Given that the concept of mediation is already a part of the Asian DNA, the Singapore Convention on Mediation is a game changer for Singapore in its continued development as a dispute resolution hub in Asia.

Joyce Fong, Associate, Reed Smith
9 Sep 2019 - 11:49

The key considerations of a business tend to vary depending on the dispute and parties involved. That said, they typically involve a cocktail of preserving confidentiality, maintaining commercial relationships, maximising time and cost efficiencies and ensuring that the resolution achieved does, in fact, finally achieve an effective outcome, for example, by resulting in actual collection of money.

Since the cross-border enforcement of mediated settlement agreements under the Singapore Convention on Mediation is intended to confer such agreements with equivalent gravitas as arbitral awards and certain court judgments, businesses will be incentivised to consider mediation more seriously and at an early stage, before even commencing court proceedings or arbitrations.

The enhanced enforceability of mediated settlement agreements is also likely to lead to more commercially driven (as opposed to legally determined) outcomes.

Victor Mills, Chief Executive, Singapore International Chamber of Commerce
9 Sep 2019 - 11:49

Most businesses would prefer to keep disputes out of the public eye and to settle them out of court for reputational and cost reasons. Alternative dispute resolution options like mediation and arbitration are real advantages to businesses. This is precisely why Singapore facilitates them as practical alternatives to litigation. The Singapore Convention on Mediation removes the concern about cross-border recognition of mediated disputes.

It solves another real business problem and, at the same time, reinforces Singapore's position as a respected hub for dispute resolution. Singapore offers businesses the full range of options for dispute resolution: mediation, arbitration and litigation.

John Bittleston, Founder and Chair, Terrific Mentors International Pte Ltd
9 Sep 2019 - 11:48

While commercial disputes are often about money, they can involve ''face'' as well. Businesses in these situations want to ensure that the company:

-Doesn't lose money;
-Avoids being seen as ''the losing party'';
-Gains an advantage over the other side; and
-Avoids leaving too much anger and resentment in the wake of the deal.

The new Singapore Convention on Mediation will encourage dispute resolution by mediation, which has proved to be less fractious than court battles, much less costly and generally leaves both parties less hostile. Singapore is ideally situated in both legal and commercial terms to be a mediation centre, because we have an envious record of keeping our cool.

Yu-En Ong, Head of Singapore, Norton Rose Fulbright (Asia) LLP
9 Sep 2019 - 11:48

The successful use of mediation to resolve international commercial disputes is one of the big success stories of the last 20 years. In international commercial disputes, the most important considerations are time, cost and enforcement. With this in mind, the Singapore Convention on Mediation is a great and welcome initiative and certainly elevates Singapore's stature as a dispute resolution hub, but is not an immediate game changer. The Singapore Convention on Mediation, when ratified and implemented by enough countries, promises to smoothen the process of enforcing an international mediated settlement agreement across international boundaries. While it has already been signed by 46 countries, including the United States, India and China, ratification is likely to still take some years.

Philip Jeyaretnam, Global Vice Chair & ASEAN CEO, Dentons Rodyk
9 Sep 2019 - 11:47

When faced with a commercial dispute, a business should start with thinking about desired outcomes - recovering money, keeping its reputation intact or preserving the relationship. The mix of desired outcomes will influence next steps. Mediation, as opposed to litigation or arbitration, is best for goodwill, and the possibility of working together in future. The Singapore Convention is helpful when choosing mediation because it enables mediated agreements to be readily enforced across borders (in signatory countries).

Lynette Chew, Director, CMS Holborn Asia
9 Sep 2019 - 11:47

Put simply, businesses do not want disputes to detract from their business operations. Ideally, these would be fairly resolved in a timely and cost-efficient manner. Disputes occur against the backdrop of working business relationships in which parties have already invested considerable effort. Understandably, businesses are keen to limit the fallout from disagreements. Mediation, being consensual, is party-driven and allows the flexibility to put creative solutions on the table, and arrive at mutually acceptable outcomes. Businesses will consider that they have greater certainty of enforcing cross-border mediated settlement agreements in countries that are party to the Singapore Convention on Mediation.

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