Mediation in England & Wales, Hong Kong and Singapore: Arbitration's Reactions to Developments in Litigation - WAMR 2014 Vol. 8, No. 3

Author(s):

Alexander McKinnon

Page Count:

24 pages

Media Description:

1 PDF Download

Published:

December, 2014

Jurisdictions:

Hong Kong,

Singapore,

England,

Wales,

International

Practice Areas:

Applicable Conflict-of-Laws System,

ADR,

Dispute Resolution & Litigation,

International Litigation,

Mediation

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Description:

Originally From World Arbitration and Mediation Review (WAMR)

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In recent years in England & Wales, Hong Kong, and Singapore

there have been significant developments in encouraging

mediation as an integral part of or, as an alternative, to litigation.

The jurisdictions have not mandated mediation as part of the

dispute resolution process. However, in many cases, the guidance

could not be clearer for parties to engage in appropriate

alternatives (specifically mediation) if they wish to avoid

potentially significant adverse costs consequences. All three

jurisdictions serve as key arbitral seats raising the question of

whether and to what extent arbitrators should also encourage

and, in appropriate cases, commend alternative dispute resolution

(ADR) techniques to arbitrating parties. This article surveys the

recent developments in litigation in England & Wales, Hong Kong,

and Singapore and places this discussion in the context of

arbitration in these three jurisdictions. It considers whether and to

what extent mediation may play a role in future arbitral

proceedings.

I. INTRODUCTION

The increasing prominence of mediation as an effective and

popular form of ADR raises the important question of when

parties should consider — and in appropriate cases attempt —

mediation during the course of their disputes. This is as much a

legal question as it is a practical one. The legal issue of when

parties should or must consider mediation has received

legislative and judicial attention over the course of the past

decade across a number of jurisdictions. It is thus appropriate to

consider whether meaningful guidance can be distilled from the

rules and decisions, and further, whether that guidance (which is

typically applicable to litigation) can be usefully applied to the

arbitration sphere.

In England & Wales, significant steps toward integrating ADR

into the litigation process have occurred since Lord Woolf’s

Access to Justice Report in 1996.1 The leading decision on ADR in

England states that “there are many disputes which are suitable

for mediation”2 and this sentiment has clearly prevailed when

considering subsequent decisions and further governmental

measures. Similarly, Hong Kong and Singapore have adopted

stances which encourage, and in some circumstances, in effect,
mandate, that parties attempt ADR.