On child-friendly activities, contractual releases, and choice of forum: part 2.¹

The story so far:
- brought my kids to a temporary indoor playground in a mall;
- had to fill in an online waiver form before unleashing my brood;
- actually bothered to read the legalese; and
- am now letting my nerd flag fly.

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Second, the terms and conditions contained a dispute resolution clause.²

"Any lawsuit arising from the use of [venue] shall be brought in a court in Singapore, and Singapore law shall apply to any dispute..."

Ok, so far so good. It's logical that any dispute should be heard before a Court in Singapore, and for Singapore law to apply, since this event is taking place in Singapore.³

"...I hereby waive my right to trial and agree that any controversy between included parties will be resolved through the mediation process."

Wait, what?

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This clause is problematic for several reasons.

First, the phrase "waive my right to trial" suggests that I am not allowed to sue the organiser for any mishap that occurs. But right above that, the same clause provides that I am allowed to sue the organiser in the Singapore Courts. So there is an inconsistency here.

Second, apart from any inconsistency, it is doubtful whether the organiser can contractually exclude the patrons' right to sue. "[U]nder Singapore law, parties cannot by their mutual agreement remove an existing juridical basis of the court’s jurisdiction over the defendant."⁴ So the question is whether this clause can even prevent me from suing the organiser in an event of a mishap.

Third, the phrase "any controversy between included parties will be resolved through the mediation process" suggests that aggrieved patrons do have a recourse, which is to go for mediation. But this doesn't completely resolve the issue as to how disputes should be resolved:

1️⃣ one of the fundamental tenets of mediation is that parties get to choose the terms on which they settle the matter, and are free to walk away if they are not prepared to agree to the other party's terms. So to say that the controversy "will" be resolved through the mediation process is, I dare say, a tad presumptuous; and

2️⃣ suppose parties attempt mediation, but are unable to reach a settlement. What then? The aggrieved patron will likely want to continue to seek recourse. We then have to deal with the effect (or non-effect) of the preceding parts of this clause.

So, sorry to be rude, but this clause is far from satisfactory.

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In part 3, we'll do some detective work into the source of this set of terms and conditions, and I'll suggest some broad learning points.