The Role of Mediation vs Litigation in Singapore Divorce Cases

Divorce can be one of the most emotionally challenging and legally complex processes a person may go through in their life. In Singapore, a divorce can be settled either through litigation or mediation, each with distinct processes, benefits, drawbacks and challenges. Whichever option you choose, will depend on your personal circumstances, financial situation and the amount of hostility present in your relationship. 

The Process of Divorce

In Singapore, the Family Justice Courts handle divorce cases. If parties are unable to reach an agreement on important matters such as child custody, division of property and maintenance, they have the option to make an application to the Courts. However, prior to seeking the Court’s intervention, there are alternative dispute resolution mechanisms available, with mediation being the most common methods.

The Role of Mediation in Divorce Cases

Mediation is an alternative dispute resolution (ADR) method that involves an impartial third party (the mediator) helping divorcing parties reach a mutually acceptable agreement. Mediation is seen as a preferred method due to its potential to reduce conflict, save time and lower costs. It focuses on finding common ground between the parties involved, rather than allowing a judge to make decisions that will impact their lives, for them.

Advantages of Mediation

1. Cost-Effective: One of the main advantages of mediation is its cost-effectiveness. Litigation can often be a lengthy and expensive process due to lawyer’s fees, Court costs and the time involved. Mediation, in contrast, can help divorcing couples potentially save a significant amount of money by resolving disputes expediently and out of Court.
2. Saves Time: Divorce cases that go through the Courts can take years to resolve. Mediation, on the other hand, typically resolves issues more quickly. The Family Justice Courts encourage mediation to help reduce the backlog of cases in Court and allow for quicker resolutions, which can be particularly beneficial for couples with children.
3. Control and Flexibility: Mediation allows divorcing parties to maintain control over the outcome. Unlike litigation, where a judge makes decisions on behalf of the parties, mediation gives couples the opportunity to craft a resolution that meets their specific needs and interests. 
4. Preservation of Relationships: While divorce is often acrimonious, mediation can help preserve a working relationship between the parties. This is particularly important if they have children together. Mediation encourages open communication and can reduce hostility, making co-parenting and post-divorce relations smoother.
5. Confidentiality: Mediation proceedings are private, unlike litigation, which takes place in open Court. This confidentiality can be an essential aspect for individuals who wish to avoid the public airing of personal and sensitive issues.

The Mediation Process in Singapore

In Singapore, the Family Justice Courts offer a Family Dispute Resolution (FDR) service, which incorporates mediation as an important part of the divorce process. Mediation sessions are conducted by specially appointed judges, staff family mediators or volunteer legal professionals. Mediation is mandatory for parties with children under 21 years old, with exceptions in cases of domestic violence or abuse. The process typically involves the following steps:

• First Session: After filing for divorce, the Court will direct the parties to attend counselling and mediation. The parties are referred to an FDR conference. A trained mediator facilitates the discussion of issues such as child custody, division of assets and maintenance.
• Subsequent Sessions: If an agreement is not reached at the first session, the mediator may arrange for additional sessions. The parties may also seek legal advice (if they have not already done so) between sessions.
• Agreement: Once an agreement is reached, it may be converted into Court orders which are binding and enforceable upon the parties. If the parties fail to agree, they may proceed with litigation.

Challenges of Mediation

Despite its advantages, mediation may not always be an appropriate option. For example:

• Power Imbalance: Mediation may not be effective if there is a significant power imbalance between the parties. One party may feel pressured to agree to terms that they are not comfortable with, particularly in cases of domestic abuse or coercion.
• Unresolved Conflict: Mediation requires both parties to be open to compromise and have a willingness to settle. Mediation may fail if one party is not interested in negotiation or is determined to pursue litigation.
• Not Legally Binding: While the outcome of mediation can be turned into a legally binding agreement, the mediation process itself does not result in a binding decision unless formalised by the Court.

Litigation in Divorce Cases

Litigation, by contrast, involves taking the divorce matter to court, where a judge will make binding decisions regarding all contested issues, including division of property, child custody and maintenance. While litigation is generally considered more adversarial and formal, it is often necessary when mediation fails or when one party refuses to negotiate.

Advantages of Litigation

1. Binding Decisions: Litigation provides a final, legally binding decision made by the Court. If mediation has failed or the parties cannot agree, litigation may be the only option to resolve outstanding issues.
2. Protection of Rights: In cases involving complex financial assets or when one party believes their rights are being violated, litigation may offer better protection. For example, if one spouse is hiding assets, the Court has powers to ensure fair disclosure and division.
3. Court Supervision: Litigation provides the advantage of judicial oversight. If one party is being unreasonable or dishonest, the judge can intervene and make decisions that ensure equity.
4. Involvement of Legal Professionals: Litigation is typically accompanied by legal representation, which ensures that both parties receive expert advice and guidance. This is especially useful when there are complicated legal matters or when one party is unfamiliar with the legal process.

Challenges of Litigation

1. Costly and Time-Consuming: Litigation can be very costly due to lawyer fees, Court costs and the length of the process. Divorce trials can take months if not years, especially if contested issues require detailed hearings and expert testimony.
2. Adversarial Nature: Unlike mediation, litigation is adversarial by nature, which means that each party is trying to “win” or to “get more”. This can escalate conflict, create more animosity and make post-divorce relationships, particularly co-parenting, more difficult.
3. Loss of Control: In litigation, the decision-making power is taken away from the parties and placed in the hands of the judge. This can leave one or both spouses feeling dissatisfied with the outcome, particularly if the Court’s decision does not align with their expectations or desires.
4. Public Exposure: Court proceedings are generally open to the public, which means that personal and potentially embarrassing information can be revealed. For those who value their privacy, this can be a significant disadvantage.

Mediation is often the preferred choice for parties seeking a less contentious and more collaborative approach to divorce. However, mediation is typically most effective when both parties are willing to engage in open dialogue and negotiation. 

On the other hand, litigation may be necessary when there is an issue of fairness, power imbalances, or when one party refuses to cooperate. Litigation may be a better option for cases where one spouse has hidden assets, abused the other or refuses to negotiate.

Ultimately, the choice between mediation and litigation will depend on the individual circumstances of the case, the willingness of both parties to negotiate and the nature of the disputes at hand. Work together with your lawyer to choose the best option for you. Whether you are considering mediation or litigation, I can provide you with the necessary legal advice to help you through this challenging time. If you’re considering filing for divorce, contact me today at 8039 9083 for a consultation.