Your client agrees to buy some tugboats, to be built by a certain date. The shipbuilder fails to finish on time. Advise your client.

Your first response might be, “Sue for breach of contract!” The scenario above isn’t simply an exam hypothetical but comes from a real-life commercial dispute that was resolved outside the courtroom, with help from the Singapore International Arbitration Centre (SIAC). In recent years, alternative dispute resolution (ADR) has gained momentum, making inroads into even textbook cases like the one above which traditionally have been resolved via litigation.

ADR includes negotiation, mediation and arbitration. Negotiation consists of interactions between disputants, with a view to reaching a mutually acceptable outcome. Mediation is similar, except for the added presence of a neutral usually assuming a facilitative role. In arbitration, the neutral (the ‘arbitrator’) decides in one party’s favour. As with litigation, the decision is binding on the parties; unlike litigation, arbitration is less formal (e.g. the Evidence Act does not apply).

Compelling evidence suggests that ADR is in vogue. In the past 7 years, the SIAC has administered over 490 cases. Similarly, as of 1 April 2006, more than 1,200 cases had been referred to the Singapore Mediation Centre; 75% of all mediated cases were settled.

ADR has pervaded many other areas of social life. Since the Primary Dispute Resolution Centre was set up in 1994, over 48,300 matters have been mediated, with 94.6% success. The Family and Juvenile Courts and the Small Claims Tribunal have embraced ADR. At the grassroots, Community Mediation Centres assist with community and family disputes. Many other organizations also offer ADR services, such as the Law Society and CASE. All signs point towards an incipient ‘ADR culture’.

The rising popularity of ADR is hardly surprising. Litigation is costly, protracted, adversarial affair, fought out in the rarified atmosphere of a courtroom, and under the glare of media publicity. By contrast, ADR is relatively inexpensive, efficient and confidential, and emphasises party autonomy and cooperation. The Supreme Court, for instance, has saved over $18 million and 2,832 court days because of ADR.

More significant is the story left untold by statistics. In our avowedly Asian society, where business and personal ties often crisscross, and saving ‘face’ is inseparably part of the social dynamic, ADR enables parties to work out disagreements amicably. Rather than jeopardizing relationships, as litigation tends to do, ADR preserves valuable social capital, and provides opportunities for long-term synergy.

Granted, ADR is not always the preferred choice. Parties may favour the ironclad authority of a court judgment. The still-open question of the enforceability of mediation clauses may deter potential takers. Moreover, since our court system is efficient and affordable, disputants may be unwilling to attempt ADR. ADR also requires that parties act in good faith, or it risks being abused as a delaying tactic in a war of attrition.

Nonetheless, these qualifications merely suggest that the flourishing of an ‘ADR culture’ is contingent not on institutions, but on people’s attitudes. Lawyers and their clients must approach ADR with a bona fide desire to seek mutual understanding and agreement. Where possible, old paradigms like positional bargaining should be rejected. Lawyers should be prepared to acquire new skill sets (as negotiators and mediators).

Above all, lawyers must be conscious of when going to court would not best serve their clients’ interests. An ‘ADR culture’ will have truly taken root when our response to a dispute isn’t that immortal line, “See you in court!”, but rather, “Let’s work this out together.”

Zhong Zewei is a second year law student and an associate editor of SLR.