Using Neutral Evaluation to Resolve Civil Disputes in Singapore

Neutral evaluation is an alternative dispute resolution method sometimes utilised in civil disputes to save costs and provide a good estimate of the likely outcome at trial for the parties involved. Here is a brief look at the process of neutral evaluation in Singapore, as well as the steps parties can take prior and after neutral evaluation.

What is Neutral Evaluation? What is Its Purpose?

Neutral evaluation is a proceeding where parties to a dispute may obtain an opinion on the merits of their case from a neutral third-party, the evaluator (such as a former judge or Senior Counsel).

During neutral evaluation, parties and their lawyers will present their case and key evidence to one another and the evaluator. The evaluator will then review the strengths and weaknesses of the parties’ case and assess the best estimate of the parties’ likelihood of success at trial.

The parties can then use the evaluation to break negotiation deadlocks–where both sides believe that they have a strong case and are unwilling to negotiate, and/or to kickstart the process of negotiation.

What is the difference between neutral evaluation and mediation?

In mediation, the mediator facilitates and assists parties in meeting their underlying interests and coming up with their own solutions to the dispute. The mediator does not provide his or her opinion on the merits of the case and does not impose a solution on the parties.

Whereas, in neutral evaluation, the evaluator will assess the merits of the case and provide an opinion on each party’s probability of success. Parties can choose whether to have the opinion legally binding on their case. If the opinion is binding on the case, this means that the opinion will be akin to a court judgment and the parties agree to pay damages/other remedies in accordance with the opinion.

Further, in mediation, the mediator may meet the parties privately to understand their interests to better facilitate a settlement. In neutral evaluation however, private sessions are not generally used. This is because the purpose of neutral evaluation is for parties to know what the merits of their case (and those of their opposing party) are and to use that information for further negotiation.

When Neutral Evaluation is Used and Its Benefits

Neutral evaluation is usually used for:

1. Cases that involve documentary evidence

Neutral evaluation is suitable for cases involving documentary evidence (such as construction-related matters) that can largely decide which party should be liable.

This is because parties may first be able to use neutral evaluation to determine who has a stronger case based on the evidence. They can then use the evaluator’s assessment to close the matter without going to trial to determine the same issue. This way, parties can save on litigation costs.

2. Cases that involve conflicting expert evidence

Neutral evaluation is also suitable for cases involving documentary evidence, (such as medical negligence matters). This is because there is a need for expert opinion in the technical and specialised subject-matter, but it will also be costly and time-consuming for expert witnesses to testify at trial.

Prior to the neutral evaluation, parties will be encouraged to appoint a single joint expert witness. He/she will give expert evidence on behalf of both parties to the case. This would result in the fees for appointing the expert witness being shared among the parties, therefore reducing costs.

Even if the parties decide to use their own expert witnesses, the evaluator will assess their testimonies together at the same time in a panel discussion format, greatly reducing the time and costs as well. This is as compared to stretched-out hearings where expert witnesses may be called to testify separately, across many days.

3. Cases where it will be useful to streamline issues

For example, by resolving and disposing of preliminary issues early in the neutral evaluation such that the focus would be on the key issues during trial. This will allow parties to resolve their dispute in court quicker.

4. Cases where parties prefer confidentiality

Neutral evaluation is carried out on a without prejudice basis. This means that any confidential information gained, including the evaluator’s opinion on the merits of the case, cannot be produced in court or disclosed at any time, unless permitted by law or by agreement of the parties.

Parties can therefore be reassured that matters relating to the neutral evaluation, such as the party with the higher chance of success or “stronger” case, will be kept confidential. These matters cannot be used in court by either party or the evaluator, to gain any personal advantage or to adversely affect the other party.

How Can I Seek Neutral Evaluation?

Through the Singapore Mediation Centre

If you are a party to a dispute or negotiation, you may request for neutral evaluation by filling out an application form (see Annex A) to the Singapore Mediation Centre (SMC) and paying SMC a non-refundable administrative fee.

The fees start from $749 for disputes involving sums up to $500,000 and goes up to $2,140 for disputes involving sums above $5 million.

Through the court

You may also obtain neutral evaluation through the court if a deputy registrar hearing a summons for directions recommends your case to be referred for neutral evaluation. A summons for directions is a court hearing for lawyers to obtain directions on whether the matter should proceed to trial or for alternative dispute resolution.

Your case may also be recommended by a settlement judge at the State Courts Centre for Dispute Resolution (SCCDR), or by a judge conducting pre-trial conferences at the Civil Trial Courts.

If you have a personal injury or a non-injury motor accident claim, your case will be automatically referred for a very brief form of neutral evaluation. Only the lawyers, or yourself (if you are self-represented) need to attend the first session, not the clients or witnesses. You will receive an indication of the likely outcome at trial during this first session.

You may also be required to attend subsequent neutral evaluation sessions, should there be a need to.

What Happens after I Have Applied For/Been Referred to Neutral Evaluation?

Neutral evaluation at the SMC

After an evaluator has been appointed for evaluation at the SMC, the parties, the evaluator, and an officer on behalf of SMC will sign the neutral evaluation agreement (see Annex B) setting out the terms and rules of the evaluation.

A date will be fixed for a Preliminary Conference (PC) within 5 days of the evaluator being appointed. During the PC, the parties and evaluator will decide on the mode of evaluation—either:

1. By documents only; or
2. With hearing(s):

1. Documents-only track

For the documents-only track, you or your lawyers will be required to submit the relevant documents through SMC within 5 days from the date of the PC.

The evaluator’s opinion will be delivered within 10 days from the receipt of documents by both parties.

2. Hearing(s) track

For the hearing(s) track, you and/or your lawyers will be required to submit and exchange case statements, and other relevant documents, through SMC within 5 days from the date of the PC. The evaluation sessions will be held after that, where witnesses (including expert witnesses) will testify.

The opinion will be delivered within 10 days of the last evaluation session. Parties will have the option of deciding whether to be bound by the opinion or not.

How can the parties request for the neutral evaluation to be binding?

The default position is that neutral evaluation would not be binding. However, parties can decide to make the neutral evaluation binding.

For neutral evaluation at the SMC, you can opt for the neutral evaluation to be binding when filling out the application form for neutral evaluation at the SMC.

If parties agree for the evaluation to be binding, they may agree to record a consent judgment or terms of settlement to give effect to the evaluation. A consent judgment is a court order which ends the lawsuit and should any party default, the non-defaulting party can enter judgment to get the defaulting party to make good on what had been agreed upon in the judgment.

On the other hand, a settlement agreement is a contract between the parties to resolve the dispute between them, and if one party defaults, the other party can sue to enforce the agreement. The non-defaulting party may need to take more steps/action to enforce the settlement agreement (which may require a further lawsuit) as compared to the consent judgment (which does not require any more adjudication).

Neutral evaluation at the State Courts

For evaluation through the State Courts, the SCCDR will schedule a PC with the settlement judge and the parties’ lawyers within 21 days after a case has been referred for neutral evaluation.

During the PC, the judge will discuss, with the parties’ lawyers or the self-represented parties, issues such as:

• Whether the parties intend for the evaluation to be binding
• Who will be the factual and expert witnesses attending the hearing

A date(s) will then be fixed for neutral evaluation.

Upon which, you or your lawyer must submit a concise written statement (i.e.an opening statement) setting forth the claim and all relevant documents within 2 days before the neutral evaluation session.

Parties, their lawyers, factual and expert witnesses should attend the neutral evaluation hearing. During the hearing, both sides will present their cases and supporting evidence, and witnesses will give testimonies.

The process is summarised in the following diagram. Note that “claimant” refers to the party suing the other party, while “defendant” refers to the other party resisting the lawsuit:

What Happens at the End of Neutral Evaluation?

At the end of neutral evaluation (i.e. once the opinion of the evaluator has been given to the parties), parties are free to negotiate further to decide how they should proceed with the dispute. This could include making a settlement.

If settlement was reached after neutral evaluation, parties would be prudent to enter a consent judgment, or record terms of settlement agreement to be signed by the parties, to end the dispute (as discussed above).

If settlement was not reached at the end of the neutral evaluation, the evaluator would help the parties develop an efficient case management plan. This could include further mediation/other alternative dispute resolution options such as arbitration or giving directions for trial.

As with most civil disputes, it would be prudent for parties to consult a lawyer who can advise them on what is the best dispute resolution method to protect your interests. If you are interested in exploring the option of neutral evaluation (to save time, costs and to possibly resolve the dispute without having to go to trial), do discuss with a lawyer your strategy going forward.