By Susan Tay, Founding Partner of OTP Law Corporation & Co-Founder of PracticeForte Pte Ltd
This is the 6th part of a series on therapeutic justice and how it may be applied in family cases in Singapore. You may read Part 1 here, Part 2 here, Part 3 here, Part 4 here and Part 5 here.
In these parts, we dealt firstly with how the essence of Therapeutic Justice for family cases is in the healing. The next parts involve the perspectives and roles of the different players and they are namely, The Lawyer, The Accountant, The Mediator, The Mediation Advocate and in this article, The Neutral Evaluator.
Family cases will be restricted to divorces and the issues arising out of a divorce. These issues include division of assets, financial support and importantly, children’s matters like custody, care and control, access.
Neutral Evaluation For Family Cases- What, Why, When, Who, Where and How
WHAT IS NEUTRAL EVALUATION?
The Law Society of Singapore Neutral Evaluation Scheme (LSNES)
On 15th June 2021, the Practice Direction[1] that the Family Justice Courts in Singapore may refer matrimonial cases to the Law Society of Singapore for mediations and/or neutral evaluations took effect.
These cases involve asset pools of S$2m and above. They are cases that do not qualify for court mediations which are provided by the Family Justice Courts free of charge. You will be pleased to know the Law Society’s fees are only S$150 per hour. With S$2m worth of assets to be determined, these fees are, to use the oft understatement: eminently reasonable.
They have also expanded the modes of resolution to Neutral Evaluation, in addition to Mediation. Law Society of Singapore’s panel of mediators and neutral evaluators are only one of two panels that the Family Justice Courts will refer to under the Practice Direction. For now, Law Society is the only one of the two with a panel of neutral evaluators specifically selected for family cases. I am one of these eight neutrals in this pilot phase.
This is heartening news, both for the public and the professionals. A widening in scope and qualified professionals can only mean better accessibility and visibility for the peace pathways to dispute resolutions.
Ok, so what is Neutral Evaluation really?
To quote Assistant Professor Quek Anderson Dorcas[2], “Neutral Evaluation involves a third-party neutral giving the parties a non-binding assessment of the case at an early stage on the basis of brief presentations made by the parties. Unlike mediation, in which the mediator assists the parties in reaching an agreement without necessarily stating an opinion on the case, the explicit aim of Neutral Evaluation is to provide a without-prejudice evaluation of the strengths and weaknesses of a case. Faced with an independent assessment of the merits of the case, and a better understanding of their prospects of success at trial, the parties are more likely to settle their dispute.”
What kind of disputes are suitable?
Currently, the following have been identified as suitable for Neutral Evaluation under the pilot phase[3]:
- Marital/ Financial Disputes
- Divorce and reasons for the breakdown of the marriage
- Nullity and reasons for nullity
- Maintenance for former wife or husband who has been incapacitated during the marriage
- Financial provision on divorce/ judicial separation or nullity. Assessment of pool of matrimonial assets. Division of the matrimonial assets.
- Maintenance for the children of the marriage
Cases suitable for Mediation only and not for Neutral Evaluation:
- Parenting and care arrangements for the children, including access and contact time
- Where and with whom the children should live
- Custodial arrangements and major decisions concerning the children’s upbringing relating to the children’s education, health and/or religion
- Relocation of children
- Abduction or wrongful retention of children either for Hague Applications or otherwise
Cases not suitable for both Mediation and Neutral Evaluation:
- Determination of the appropriate forum
- Domestic violence cases
- Guardianship matters
- Contempt of court cases – breach of court orders and obligations including access and care and control orders
- Bankruptcy or insolvency
- Status either of individuals or of their relationship
- Any claim or involvement of third party interests, unless that third party agrees in writing. This also applies to cases where an asset is held jointly with a third party or is alleged to belong beneficially either in whole or part to a third party
- Child protection proceedings
WHY NEUTRAL EVALUATION?
Neutral Evaluation fills the gaps and serves where Mediation may fall short. It is primarily useful and overwhelmingly so as a form of reality check.
At its core, neutral evaluation is really this: A highly experienced practitioner who will study the evidence, hear the disputants and then gives them an evaluation of the case. Unlike being before a judge in court, and this is a massive advantage of neutral evaluation over litigation, this process is very flexible, can be friendly and yet effective as a forewarning of things to come.
Imagine this: you have been in a fiery and ulcer-inducing court fight and are now weeks from trial. S$200,000.00 down after paying legal and court fees, you have just received yet another invoice for another S$100k to pay the massive hearing fees since you have 11 witnesses and the hearing will likely last for 14 days. Imagine being told only then that even if you win, you cannot recover enough to even pay your fees. Or worse, that even if you can, the stomach ulcer has developed into something more sinister.
Neutral evaluations give you an opportunity for some sort of a reality check very early on. In family cases, we hope you get it even before you file your writ. Mainly because of this 110% proven fact: acrimonious matrimonial battles destroy familial relationships even between relatives who are not directly involved in the fight. Too often, these relationships never heal or are repaired. Which brings us to-
WHEN?
Now. If you are reading this article, you may be contemplating divorce. You may be thinking of a way to see if you can get a fair assessment of what is likely to happen if you go to court for: your rights over maintenance or matrimonial assets. So do it before you even file the writ. It can even be before you engage your lawyers although I personally feel lawyers are indispensable, really, for anything that will culminate into a court order.
Neutral Evaluation is especially useful before you go into mediation. With the likely outcome and any false expectations demolished, parties can be better ready to come to a reasonable settlement.
Like I have said in previous articles, oftentimes, judges don’t order what you want. It is not uncommon for both parties to feel that way.
WHO, WHERE AND HOW[4]
I will take the easy way out and refer you to the Law Society’s website for information on the Who, Where and How: https://adr.lawsociety.org.sg/family.
In particular:
- WHO: a list of the panel members here: See list of panellists
- WHERE AND HOW: for a detailed work flow: See Law Society’s Neutral Evaluation and Determination Scheme
In summary, if you are ready for a neutral evaluation, complete this application form here: At Law Society’s Family Law Resources Page and then email it to adr@lawsoc.org.sg.
Quite simple really.
Ms Susan Tay was appointed as one of eight neutral evaluators by The Law Society of Singapore for the Pilot Family Panel of Neutral Evaluation Scheme. In time to come, more neutrals will be trained and appointed to further the aspirations and administration of Therapeutic Justice in the Family Justice Courts.
[1] Practice directions are protocols issued by the courts to regulate procedural matters. This one was dated 2nd June 2021 and named AMENDMENT NO. 1 OF 2021.
[2] Finding the appropriate mode of dispute resolution: Introducing neutral evaluation in the Subordinate Courts -Dorcas QUEK ANDERSON
[3] See Law Society’s ADR web page at https://adr.lawsociety.org.sg/familylawresources
[4] https://adr.lawsociety.org.sg/familylawresources