The Singapore Convention on Mediation; a big step towards the advancement of Mediation
The 7th of August 2019 marked a special day in the development of mediation and its promotion as a credible and effective path for resolving international commercial disputes, but also for preserving long-term business relationships.
In Singapore, 46 States signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (‘Singapore Mediation Convention’), which had been adopted on the 20th of December 2018 by the General Assembly resolution 73/198. The Convention has been characterized as the ‘ missing piece’ in the enforcement framework of international disputes, which includes the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Hague Convention on Choice of Court Agreements and the recently concluded Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, designed to assist cross-border enforcement of arbitration awards and court judgments, respectively.
It is true that until today, for cross-border disputes, many businesses rely either on arbitration or on litigation. However, efforts to promote mediation have been made in many countries and to that end, the Singapore Convention will assist to increase its popularity therefore, being definetely an instrument to not only promote mediation as an alternative method of resolving international commercial disputes, but also to facilitate international trade by providing greater certainty and assurance to businesses. As the Prime Minister of Singapore, Lee Hsien Loong, said “By promoting settlement of disputes driven by party autonomy, businesses will benefit from greater flexibility, efficiency and lower costs, while states can enhance access to justice..”
Essentially, the Convention seeks to improve the cross-border enforceability of mediation settlement agreements and provide an efficient and harmonised framework. Interestingly, enforcement of such agreements does not appear to be a major issue according to a Report on International Mediation and Enforcement Mechanisms by Professor David Weiss and Michael Griffith. The perception of enforceability is perhaps the bigger issue. In a 2014 survey conducted by the International Mediation Institute, the results showed that 93 per cent of the respondents would be more likely to mediate a dispute with a party from another country if that country had ratified a convention on the enforcement of mediated settlement agreements. With the Convention in place now, commercial disputants may have more confidence in the process and turn to it more often.
The Singapore Convention is a relatively short document and bears much resemblance to its arbitration counterpart. Some of its key features are the following:
As already stated, the Convention only covers international commercial disputes. Accordingly, all domestic disputes and international disputes involving family law, wills and inheritance and employment are excluded from its scope.
Article 2(3) gives a broad definition of Mediation, so as to cover even processes not labelled as “mediation”. Specifically, the Convention defines mediation as an attempt by parties “to reach amicable settlement of their dispute with the assistance of a third person or persons (‘the mediator’) lacking the authority to impose a solution upon the parties”. Obviously, there is no requirement that the mediation be administered by a mediation institution or conducted by an accredited mediator.
Moreover, in order for the parties to be able to seek assistance from a court in a Signatory Country the following two prerequisites must be met; there must be a written agreement, signed by the parties and such agreement must be the result of a mediation process, as defined above.
The settlement agreement may only be refused enforcement under one of the grounds listed in Article 5. This means that in order for domestic courts to enforce a settlement agreement the parties must have legal capacity and the agreement must be clear, comprehensible and final according to its terms. In addition to these, the court will not enforce an agreement where there is breach of mediator standards or where the mediator is found not to be independent of the parties. The Convention however does not prescribe the mode of enforcement, but leaves it to each Contracting State to do so “in accordance with its rules of procedure..” (Article 3(1)).
You can read the whole text of the Singapore Convention on Mediation here
Here is a list of the Signatory Countries :
9. Republic of the Congo
10. Democratic Republic of the Congo
11. Kingdom of Eswatini
29. Republic of North Macedonia
34. Republic of Korea
36. Saudi Arabia
37. Republic of Serbia
38. Republic of Sierra Leone
39. Sri Lanka
40. Timor Leste
44. United States of America