Contemporary Issues In Mediation - Volume 2

2

Joel Lee, Marcus Lim

• Publisher: WSPC
• Year: 2017
• eBook ISBN: 9789813225664
• Topic: Diritto
• Subtopic: Arbitrato, negoziazione e mediazione nel diritto

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Should mediation be used in all family disputes?

Is the time right for apology legislation in Singapore?

What can mediators learn from improvisation theatre & neuro-linguistic programming?

As the field of mediation continues to grow, so do the issues that face the modern mediator. Contemporary Issues in Mediation-Volume 2 provides a valuable launch-point for readers seeking answers to these questions, collecting the very best entries selected by leaders in the mediation and negotiation field — Prof. Joel Lee (National University of Singapore) and Marcus Lim (Singapore International Mediation Institute). This edition includes three essays on family mediation, and is an especially valuable addition to professionals working with family mediation.

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--> Contents:

• Essays on Family Mediation:
  • Scaling Up Safety for the Sake of Self-Determination: Exploring Options to Mediation and Cases of Family Violence in Singapore (Khoo May Ann Esther)
  • Mediation of Family Disputes in Singapore Following the Amendments to the Women's Charter in 2011 (Too Fang Yi)
  • Mediation as an Appropriate Form of Dispute Resolution for Family Disputes: The Case for an Interdisciplinary Approach (Yeoh Jean Ann)
• Essays on General Mediation:
  • Mandatory Mediation in Singapore: Cultural Compatibilities (Justin Low Ching Wei)
  • To Mediate or Not to Mediate: An Analysis of When It Would be Reasonable to Reject Mediation (Wang Chen Yan)
  • Promoting ASEAN as a Platform for Collaborative Dispute Settlement — Institutionalising Administered Mediation in ASEAN (Maryam H Rozlan)
  • Making Mediators Better Performers — Use of Neuro-Linguistic Programming and Improvisation Theatre for Creative Results (Rumani Kaushal Sheth)
  • And Never the Twain Shall Meet? An Analysis of the Benefits of Caucus Mediation and Conference Mediation (Choong Jia Shun)
  • The Paradox of Power and Neutrality in Mediation (Seah Ern Xu)
  • Learning from Hong Kong for a Mediation and an Apology Legislation in Singapore (Michelle Wong)

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--> Readership: This series is intended for students and professionals in mediation as well as the general public. -->
Keywords:Mediation Process;Singapore;Mediation and Culture;Mediation Advocacy;Online Mediation;Mediation Theory;Mediation Skills;Good Faith;Mediation in Asia;Amicable Dispute Resolution;Appropriate Dispute Resolution;Alternative Dispute Resolution;Arb-Med-Arb;Singapore International Mediation Centre;SIMC;Mediation Neutrality;Mediation Power Balance;Mediation Essays;Mediation Articles;Singapore International Mediation Institute;SIMI;Singapore International Arbitration Centre;SIACReview:

"The thoughtful essays in the family themed section bring fresh perspectives and insights on family mediation, which occupies a central place in the current family justice system. I commend this effort to give young writers a voice and I hope it will go on to inspire students and practitioners to work in this very important area of 'appropriate dispute resolution'."

Judicial Commissioner Debbie Ong Siew Ling
Supreme Court of Singapore

"The three chapters in the family themed section of Contemporary Issues in Mediation Volume 2 are balanced essays that provide useful suggestions following the 2011 amendments to the Women's Charter concerning mandatory mediation. These suggestions are well worth considering if mandatory mediation is to achieve its goals and avoid pitfalls."

Professor Leong Wai Kum
Faculty of Law, National University of Singapore

"Fresh, bold and innovative — these adjectives apply equally to both the publication as well as the essays it contains. This impressive volume offers an exciting collection of thought-provoking perspectives on mediation from our bright young legal minds."

Associate Professor Lim-Lum Kit Wye
Nanyang Business School, Nanyang Technological University, Singapore
Key Features:

• Foreward by William Ury, leading international mediator and negotiator, co-author of the seminal title "Getting To Yes" in the dispute resolution industry
• Collection of essays on unique topics in mediation, both theory and practice

Part 1

Essays on Family Mediation

Scaling Up Safety for the Sake of Self-Determination: Exploring Options to Mediation and Cases of Family Violence in Singapore

By Khoo May Ann Esther

I.Introduction

The issue of whether mediation is appropriate in cases where family violence has occurred is a question that continues to vex academics and practitioners today.¹ At first glance, mediation is the ideal option for family disputes since it reduces undue acrimony in the divorce process and emphasises communication between the parties.² However, when tensions escalate, issues of physical or emotional abuse could arise.³ The psychological effects that ensue could create power imbalances between spouses in the mediation process. This paper questions whether mediation is suited for cases where family violence has transpired. If so, what can be done within the mediation process to address any limitations that may arise?

A.Mandatory mediation

In Singapore, Section 50(3A) of the Women’s Charter⁴ prescribes mandatory mediation for couples that have filed for divorce, who have at least one child under 21 years of age.⁵ This court-based mediation process⁶ is conducted by a Judge–Mediator at the Child Focused Resolution Centre (“CFRC”).⁷ In Singapore, mandatory mediation may well have been instituted as a “temporary expedient”⁸ to give couples the chance to experience the benefits of mediation. Indeed, as Chief Justice Sundaresh Menon observed, mediation helps “parents appreciate the consequences of their actions on their children, with encouraging results”.⁹

B.Family violence

However, the mediation process may not be suited for cases where spousal abuse has occurred.¹⁰ Indeed, where it is not in the interest of the child or the parent to go through the mediation process, the Court has the discretion to exempt parties from it.¹¹ While the Women’s Charter does not elaborate on what “in the interest” of the child or parent constitutes, it is highly likely that this extends to situations where the couple has had a history of family violence.

For this paper, “family violence” is defined as a pattern of coercive or controlling behaviour within an intimate relationship that changes in its dynamics.¹² This definition goes beyond the definition of family violence under Section 64 of the Women’s Charter, which predominantly focuses on the physical aspect of family violence. The purpose is to acknowledge that family violence transcends physical altercations. It could include elements of sexual, psychological and emotional abuse.¹³

More importantly, the psychological effects of family violence on an abused spouse may spillover into the mediation process. This may create power disparities that could adversely affect the outcome of the mediation. For example, one critical finding of the International Violence Against Women Survey (“IVAWS”) was that out of all the surveyed women who had been abused by their current partners, “half were injured and 44.4% feared for their lives”.¹⁴ Thus, if abused spouses were required to attend mediation, this could raise safety concerns and questions regarding their ability to negotiate on a level playing field with the abuser.

As spousal abuse remains one of the most prevalent forms of family violence in Singapore,¹⁵ its potential effect on the mediation process deserves a second glance. Part I examines the benefits and detriments of mediation in cases where family violence has occurred. Part II explores how safeguards can be enhanced within the mediation process to address these limitations.

II.Mediation and family violence

A.Incompatibility of mediation with family violence cases?

When family violence enters the picture, the main contention is that an abused spouse should not be forced to go for mediation because he or she is unlikely to come to the mediation table on an equal playing field.¹⁶ At minimum, mediation brings the abused spouse face-to-face with the abuser.¹⁷ Opponents argue that the presence of an abusive spouse will inevitably create a power imbalance between the parties.¹⁸ The promise of a safe environment cannot “erase the effects” of psychological fear.¹⁹ In extreme cases, an abuser may also intimidate the abused spouse with verbal or non-verbal threats.²⁰ This may be difficult for a mediator to root out, especially where he or she has not been alerted to any history of domestic abuse between the spouses.²¹ As a result, the abused spouse may not speak up for his or her own needs.²² Further, the abused spouse may feel compelled to acquiesce to the abusive spouse’s demands out of fear of future physical, psychological or financial harm.²³

If this materialises during the mediation, the criticism is that any settlement that subsequently arises is ultimately untenable because it lacks willing consent on the part of the abused spouse.²⁴ Moreover, where the abused spouse is a litigant-in-person who has not had the benefit of legal advice, the inequality between the parties may be particularly pronounced.²⁵

Second, the mediation process may exacerbate rather than alleviate the detrimental effects of a power imbalance in the family context. For example, one observation is that mediators encourage parties not to “blame each other”²⁶ or dredge up past faults. However, critics argue that this characteristic of mediation is inappropriate in cases of family violence because it discounts the severity of domestic abuse.²⁷ If a mediator skims over issues of domestic violence to focus on achieving a settlement, this sends a signal to the abused spouse that his or her safety is not important.²⁸

B.Potential benefits of mediation

Despite these criticisms, there are valid reasons to support the continued viability of mediation. Practically, spouses in abusive relationships will have to interact with each other in the long term, especially where children are involved.²⁹

Although opponents argue that the forward-looking nature of mediation is a disadvantage in cases of family violence,³⁰ they overlook two scenarios. First, a mediator’s ability to help parties focus on generating options can be perceived as an advantage in helping parties anticipate and deal with any future violence that may occur.³¹ Second, a mediator does not necessarily have to “discount” or “overlook” the history of domestic abuse. Instead, he or she may be able to reframe issues to help the abuser understand how the abused spouse may feel as a result of violence.

Moreover, mediation is still a preferred option to litigation.³² Indeed, the adversarial nature of litigation may encourage abusive spouses to deny their abusive behaviour with its point-to-point allegations and counter-claims.³³ In contrast, mediation increases the likelihood of spouses responding constructively to issues of family violence, especially where they feel they are being heard and treated fairly.³⁴

As it stands, empirical evidence only shows correlations between mandatory mediation and the danger of coercion within the mediation process.³⁵ In contrast, other studies demonstrate that couples that went for mediation experienced a decrease in the incidence of family violence.³⁶ Ultimately, current research studies are too complex to rely on any one generalisation or group study to affirmatively show that mediation should not be an option in cases where family violence has occurred.

III.Finding a safer haven?

Nevertheless, what can be done to address the problem of power imbalances in family violence cases?

A.Extreme end

(1)Blanket exemption

In the extreme, opponents have proposed imposing blanket exclusions on mediating all abusive relationships.³⁷ However, a blanket prohibition has its limitations. First, “family violence” is incapable of precise delimitation. Different spouses may respond differently to different inflections of “abuse”. For instance, one spouse may be traumatised by repeated snide remarks while another may remain unaffected by a one-off physical altercation.

Adopting the mantra of, “it is better to be safe rather than sorry” is undesirable. As shown above, there remain benefits to mediation even in cases of family violence. The problem would not be resolved by ruling mediation out entirely.³⁸ This would throw the baby out with the bathwater. Ultimately, family violence may be understood as occurring on a spectrum,³⁹ ranging from repeated abuse to one-off violence.⁴⁰ Depending on the frequency and severity of the abuse,⁴¹ this may or may not raise a red flag before the mediation commences.

Instead, what is important is the need to temper the mediation process meaningfully to promote the safety of abused spouses while enhancing self-determination. The focus should be on assisting parties to mediate on a fairer playing field⁴² rather than denying them the opportunity of mediation.

B.Middle ground

(1)Screening process

As mentioned above, mediation in Singapore may not be mandatory in cases where it is not in the interest of the parent or child. However, it is not clear what constitutes “in the interest” or how cases are screened.

One option is to screen cases whenever allegations of abuse arise.⁴³ This screening is done pre-mediation to filter out disputes that may not be suitable for mediation.⁴⁴ The objective is to ensure that an abused spouse is not forced to face the abuser and that his or her consent to mediation is not given merely to placate the abuser.⁴⁵

However, one drawback is that such a screening process lends itself to abuse. For instance, this could open up the floodgates to spouses falsely alleging abuse in order to avoid mediation.⁴⁶ There may be further inaccuracies in the screening process if the Court, mediator or administrator lacks proper training in identifying spousal abuse.⁴⁷ Identifying violence may well be an “art rather than a science”⁴⁸ that cannot yield consistent outcomes.⁴⁹

To resolve this problem, one practitioner has suggested that if a party is able to show that a Personal Protection Order (“PPO”) has been issued to him or her, this provides a good litmus test to segregate genuine complaints from bare allegations in Singapore.⁵⁰

However, this has its difficulties. First, it presumes that abused spouses will be forthcoming about their history of abuse.⁵¹ However, according to IVAWS, violence is seldom reported in Singapore, especially if committed by an intimate partner.⁵² Second, many abused spouses may be in denial about domestic violence.⁵³ In support, attachment theory posits tha...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Foreword for the Series
• About the Editors
• Editors’ Note
• About the CIIM Essay Competition
• Part 1. Essays on Family Mediation
• Part 2. Essays on General Mediation
• End Notes