International litigation can be expensive and drawn out, which is why the alternative of arbitration and mediation can be so appealing. But enforcing the resulting agreements can be nearly impossible, causing many to reconsider alternate dispute methods. The introduction of the Singapore Convention on Mediation stands to change all of that.
Also known as the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation, the convention seeks to correct the ongoing issue of enforcing mediated settlement agreements. Historically these agreements are unable to be enforced across country borders. Signatories of the convention would be required to handle requests to “act expeditiously” to either enforce the agreements or to allow one of the parties to utilize the agreement to show the matter was resolved.
It’s clear the change would benefit those who would prefer to use a form of alternate dispute resolution. A survey from the International Mediation Institute shows that nearly 93% of respondents would be more likely to participate in mediation with a party from another country if they knew the agreement would be enforceable through a ratified UN convention.
On August 7, 2019, the very first day the Singapore Convention on Mediation was open for signatures, forty-six countries signed at an official ceremony in Singapore. The Convention will be fully entered into force six months from that date, February 7, 2020, pending its ratification by at least three signatories. Given the number of initial signers, it seems extremely likely to be finalized without issue.
Details of the Singapore Convention
The Singapore Convention doesn’t cover all mediation settlement agreements. The convention only applies to international commercial disputes and excludes settlement agreements:
- relating to family, inheritance or employment law;
- which have been approved by a court and are enforceable as a judgment in a court;
- arising from transactions engaged by one of the parties for personal, family or household purposes; and
- recorded and enforceable as an arbitral award.
As beneficial as the Convention can be, there are a large number of reasons for which a country could decide not to offer relief, leading to concerns about how impactful the result will actually be with so many ways to opt out. Under Article 5 of the convention, the many reasons a country could decide to refuse to enforce a mediated settlement agreement include:
- (i) a party to the agreement was under some incapacity;
- (ii) the agreement is null and void, inoperative or incapable of being performed under the law that governs it;
- (iii) the agreement is not binding or is not final;
- (iv) the agreement has been subsequently modified;
- (v) the obligations under the agreement have been performed, or are not clear or comprehensible;
- (vi) granting relief would be contrary to the terms of the settlement agreement;
- (vii) there was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach the party resisting enforcement would not have entered into the settlement agreement;
- (viii) the mediator failed to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence, and this had a material impact or unduly influenced one of the parties to enter into the settlement agreement;
- (ix) granting relief would be contrary to the public policy of the State Party; or
- (x) the subject matter of the dispute is not capable of settlement by mediation under the law of the State Party.
To utilize the Convention, the party involved must present the court that has jurisdiction where they are seeking enforcement with the signed agreement and evidence that the agreement was a result of mediation. Proof of mediation could include a signed document from the mediation involved or the mediator’s signature on the agreement.
While the full impact of the Singapore Convention won’t be fully known until it’s put fully into force and has been utilized to try and enforce a mediated settlement agreement, it’s apparent there is a need. There may be a decrease in litigation and international process service if the intent of this Convention is successful, but that will depend on the effectiveness and willingness of signatories to enforce its contents.
To read the full copy of the convention: The Singapore Convention on Mediation