The Singapore Mediation Convention will come into force on 12 September 2020. This follows Qatar becoming the third country to ratify the convention on 12 March 2020, following Singapore and Fiji (both 25 February 2020). 49 other countries have also signed the Convention but have not yet ratified it, including the USA, China and South Korea. The Convention will come into force for those countries six months after each officially ratifies it.
The EU, which currently has Mediation Directive 2008/52/EC in force which includes mechanisms for enforcing settlement agreements arising from mediation, is debating whether to sign en bloc or to require Member States to sign individually. The UK is also yet to sign the Convention, but the impetus for doing so may increase now that it is leaving the EU, which brings in an increased focus on protecting the UK’s position as a pre-eminent dispute resolution forum.
What does the Singapore Mediation Convention do?
The Convention is loosely modelled on the New York Convention on the enforcement of arbitration awards and has two main benefits:
- to allow the direct enforcement of settlement agreements obtained through mediation in a Convention State; and
- the ability to produce the settlement agreement in the court of a Convention State to evidence that a matter in dispute has previously been resolved between the parties.
To be enforceable under the Convention, the settlement agreement will need: (i) to have a cross-border element (i.e. to be between two or more parties who have their place of business in different countries); (ii) to be in writing; and (iii) must result from mediation, evidence of which is a requirement. The Convention specifies ways to evidence that the settlement agreement resulted from a mediation, including the mediator signing the settlement agreement or the mediator/mediation institution/other competent authority attesting to the mediation.
While our experience has been that mediated settlements are overwhelmingly complied with without the need for Court intervention, if widely ratified the Convention will bring a further measure of assurance to the mediation process and may well drive further adoption of mediation as a dispute resolution mechanism.
What are the potential issues with the Convention in practice?
In February 2020, we published an article discussing CEDR’s recent note on the key points and concerns to consider with regard to the Convention. CEDR is concerned that one unintended consequence of the Convention is that mediators may be called as witness to evidence a mediated settlement where there is subsequent litigation. Furthermore, settlements are often reached days or weeks after a mediation, and so the mediator may not be aware of the final terms of any mediated settlement or even of the fact of settlement, let alone be asked to sign it.
However, these issues can likely be overcome by careful drafting of the mediation agreement, including ensuring that the mediator is specifically contracted to continue to assist the parties following the conclusion of a “set piece” mediation, for example, by providing for follow-up mediation sessions, and requiring that the mediator to be involved in assisting the parties with recording their agreement in written form.
As each state which ratifies the Convention will also need to make adjustments to its relevant procedural codes to allow for enforcement of mediated settlement agreements through the expedited procedure, any such issues (and their potential solutions) will become clearer as these codes are published and put into practice. With the Convention now coming into force, lawyers will need to keep up to date on the states which have ratified it and should give thought to additional terms to include a mediation agreement or protocol to reflect the requirements of the Convention. For further details on the Convention, please see our previous article.