Judiciaries from Australia, Canada, China, Germany, Malaysia, the Philippines, Singapore, Britain and the United States have established the International Judicial Dispute Resolution Network to promote judicial dispute resolution (JDR) and develop best practice for jurisdictions to incorporate JDR within their court systems.
During the network’s inaugural meeting on 18-19 May in Singapore, with 40 participants present, Singapore’s Chief Justice Sundaresh Menon said several judiciaries agreed in 2019 to join a JDR practice community.
JDR is judge-led case management designed for the early, cost-effective and equitable resolution of court disputes through mediation and neutral evaluation.
“Plans to formally establish the JDRN were temporarily waylaid after the pandemic broke out, but the network continued to grow, and it now comprises a diverse group of civil and common law judiciaries from all over the world,” said Chief Justice Menon.
Menon said alternative dispute resolution had seen tremendous growth in recent decades. He said if non-adjudicative procedures, such as mediation and neutral evaluation were better for resolving disputes, then they should be part of the judicial toolkit.
“JDR thus heralds a paradigm shift, not just in our thinking on the judicial process, but also in our understanding of the judicial role,” said Menon. “The judge, on this view, sits not as a passive arbiter of the cases presented to her, but actively manages cases at an early stage, tailoring the process to fit the dispute.”
Yang Wanming, vice-president of the Supreme People’s Court of the PRC, spoke through a video link during the meeting saying that China has built a one-stop diversified conflict resolution system with courts as the mainstay and is eager to expand cooperation with other nations to promote international judicial dispute settlement procedures.
Yam Wern Jhien, a partner at Rajah & Tann in Singapore, told Asia Business Law Journal that a key difference between JDR and other dispute resolution mechanisms lies in who leads the process: unlike other related procedures, JDR is judge led.
“In a judicial dispute resolution process, a sitting judge will meet and discuss the case with the parties in a private and confidential setting with the objective of guiding the parties towards a settlement or narrowing of the dispute,” said Yam.
“The judge may also provide a non-binding opinion on the merits and possible outcome of the case, to give parties a clearer assessment of their prospects should the matter head to trial, where it will be heard and decided by a different judge.”
Another key difference, Yam said, was the setting in which cases were conducted. JDR took place in the setting of ongoing court proceedings – as in when a claim has been filed in court after parties have exchanged pleas stating their respective claims and defence.
“Negotiation and mediation can take place at any time, even before any court proceedings commence,” said Yam. “Arbitration process usually takes place to the exclusion of any court proceedings.”
Any dispute in court between private parties is suitable for JDR. However, cases where parties have a continuing relationship will benefit most from this procedure, because the parties may be steered towards a bespoke or out-of-the-box solution that cannot be ordered by the court or accomplished by litigating the matter to trial.
“The typical ‘winner takes all’ outcome at the end of a trial may not be conducive to the preservation of the parties’ continuing relationship,” said Yam.
Yam added that the Singapore State Courts have institutionalised JDR mechanisms for most of its cases, including neutral evaluation where parties agree to refer their dispute or part of their dispute to a district judge for evaluation on the merits. Each party will have a chance to submit arguments and evidence, and the judge will provide an opinion on the strengths of each party’s case.
“A neutral evaluation is a viable option where the disputing parties are not willing to explore a compromise but are nevertheless prepared to obtain an objective assessment of the merits of their case without having to spend the time and cost to litigate the matter to trial,” said Yam.
“Unlike a judge-led conference or mediation, the district judge acting as evaluator will not speak to the parties privately or guide the parties to a negotiated outcome. The judge’s role is simply to assess the strengths and merits of each party’s case and it is entirely up to the parties what they wish to do with the evaluation.”
The evaluation is not binding unless all parties agree. If the parties agreed for the evaluation to be binding, they would have to abide by the decision as if it was a consent judgment or settlement.