Singapore Convention on international commercial mediation settlement agreement enforcement and its potential impact on mediation practice

Singapore Convention on international commercial mediation settlement agreement enforcement and its potential impact on mediation practice

by Renars Raudins (LLM)

Dissertation submitted to

City University of London

August 2019

Introduction

This paper will explore international commercial dispute resolution using mediation and look at the upcoming United Nations Convention on International Settlement Agreements Resulting from Mediation, named Singapore Convention, to ascertain the potential impact on mediation practice.

As an introduction, the first chapter will look at what is mediation, why and how it is better than other dispute settlement options, such as litigation and arbitration.

The second chapter will look at one of the biggest problems of mediation, which is affecting the practice of mediation, and which the Convention is addressing, namely, enforcement of international mediation settlement agreements.

To understand the potential impact of the Convention on mediation practice, the third chapter will look at what is the Convention and its goals.

The fourth chapter will look at mediation practice in various countries and jurisdictional issues related to institutionalisation and professionalisation of the mediation.

The final, the fifth chapter will summarise and analyse findings to determine the potential future impact of the Convention on the mediation practice.

1.Mediation in general

Mediation has existed for many hundreds of years as a peaceful method of any dispute resolution, although historically, in general, parties to settle their disputes have turned to courts. Mediation in many parts of the world has been a more diplomatic way and an alternative to courts for dispute settlement. Mediation has been recognised by ancient civilisations, such as Greece, Rome and China. Ancient Greece began the practice of mediation and in Roman times mediators were referred to as conciliators, mediums and interlocutors. The importance of mediation was recognised also by philosophers such as Confucius, a Chinese philosopher and politician, who addressed the method as being a harmonious and co-operative way of settling disputes without litigation, a way of getting to resolution by negotiating, understanding and mutually agreeing on a compromise. Additionally, the mediation has been used by Buddhists, the Christian church, Islamists and Judaists, as well as has been used to negotiate during wars and diplomatic events.[1]

Nowadays mediation, which is also known as conciliation, is being practised in many countries and areas, including Europe, the United States of America (USA), China and Australia. Particularly strong mediation culture and ethic is in Eastern countries, for example China has one of the largest and wide-ranging mediation systems in the world, as it aims to create harmony in most of the areas of life, based on traditions and values, such as workplace – employer and employee disputes, family life – finances and childcare arrangements, commercial – contract disputes in business, schools – disagreements between pupils and teachers, civil – neighbour disputes.[2]

Mediation by its definition is a voluntary, flexible and confidential form of dispute resolution, which alongside with arbitration and negotiation is alternative to litigation. In mediation, similarly as in arbitration, a neutral third party assists disputing parties towards a negotiated agreement to settle a dispute. Parties during the mediation have full control over the decision and whether to settle and on what terms.[3]

As above mentioned, mediation in many parts of the world has a long history for diplomatically settling disputes, but the use of it for commercial dispute resolution has increased mostly only during the recent years. The growth of attention is generally due to dissatisfaction with delays, costs and length of resolving a dispute using litigation. The growth of interest is due to the advantages of mediation process, such as better potential for continuation of business relationships following a dispute resolution, because in mediation both sides agree on the result, which in most situations would be a ‘win-win’ outcome, whereas in litigation normally only one side is satisfied with the result and during the process, which usually is lengthy and costly both side business relationships most likely would be disrupted. As additional advantages of the mediation process can be mentioned: confidentiality, as disputes are being settled ‘behind a closed door’, control, as both parties have full control over the process and the outcome, time, as mediation usually takes just a couple of days, and costs, because due to short time and simplicity of the process the costs would be minimal in comparison to litigation or arbitration. Mediation has also a very high rate of success in achieving an acceptable result for parties, because it has a comparatively formless procedure, but still, some parties hesitate to use mediation, mostly because not knowing what to expect, as litigation and arbitration for many decades have been the most common ways for commercial dispute resolution.[4]

Here, in addition, could be noted that courts also have endorsed the use of mediation in many cases, such as in the following:

• Halsey v Milton Keynes General NHS Trust [2004]

‘We recognise that mediation has a number of advantages over the court process. It is usually less expensive than litigation which goes all the way to judgment. [..] Mediation provides litigants with a wider range of solutions than those which are available in litigation: for example, an apology; an explanation; the continuation of an existing professional or business relationship perhaps on new terms; and an agreement by one party to do something without any existing legal obligation to do so.’[5]

• Burchell v Bullard [2005]

‘Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued. With court fees escalating it may be folly to do so.’[6]

• Northrop Grumman Mission Systems Europe Ltd v BAE Systems Ltd [2014]

‘This was a classic case where I consider that a mediator could have brought the parties together. In assessing the prospects of success, I do not consider that the court can merely look at the position taken by the parties. It is clear that BAE did not want to pay anything and if NGM would not settle without payment then there would not be a settlement. However, this is the position in many successful mediations. It ignores the ability of the mediator to find a middle ground for analysing with each party its expressed position and making it reflect on that and the other parties’ position. It allows the mediator to bring the necessary skills of evaluation and facilitation to find solutions which have not been considered. This may include such things as bringing other commercial arrangements or disputes into the discussion, or, in this case, resolving the consequences of termination or finding future opportunities for the software or licences.’[7]

Besides standard mediation, parties can choose to combine mediation with arbitration, which also could attract the hesitant parties that are familiar and comfortable with the arbitration, but not fully confident about mediation. In such circumstances, parties would try to resolve the dispute by using mediation and, if unsuccessful or not resolved within an agreed time, the dispute then would be submitted for a binding decision to arbitration.[8]

Arguably what attracts parties the most to the mediation is its non-binding procedure, which means that parties are not obliged to continue after or even during the first meeting, consequently always having full control over the process. This non-binding nature of the process also means that a decision cannot be imposed upon parties, because for a settlement to be concluded, parties must willingly agree to accept it. This is also one of the biggest differences in the process from litigation or arbitration, as the mediator is not a decision-maker, but only assists parties to settle their dispute. In arbitration, the same as in litigation, the outcome is determined by applicable laws, whereas in mediation any outcome is determined by the will of parties. Parties can consider a wider range of standards and their respective business interests, consequently, parties can decide the outcome of their dispute by referring to their future relationships, rather than by their past conduct, as it is being done during litigation and arbitration processes. Because of this, mediation has been addressed as an interest-based procedure. An additional difference of mediation is that in contrast to litigation or arbitration parties are addressing each other, instead of a judge or an arbitrator, as they must convince, negotiate and reach a settlement that would be accepted by the other side. Considering these mentioned differences, mediation is noticeably more informal procedure than litigation or arbitration.[9]

There are two main models or types of how mediator assists parties to settle a dispute. The first type is a facilitative mediation, where the mediator assists with communication between parties and helps each side to understand the interests and position of the other side concerning the dispute. The other type is an evaluative mediation, where the mediator provides an evaluation or assessment of the dispute, which parties then can accept or reject as a resolution of their dispute. As with all other aspects of the mediation, parties can choose which type of mediation they want to use.[10]

Mediation by being confidential serves as a contribution for parties to be more open in their discussions during the process, because any proposals or offers for a potential settlement do not have any consequences following the mediation, regardless of the mediation process outcome. As a rule, information or documents that have been shared during the mediation, cannot be disclosed or used in subsequent litigation or arbitration.[11]

Mediation is suitable for most of the disputes, apart from cases where fraud or counterfeit, or piracy has been involved consciously and in bad-faith, as mediation requires cooperation of the involved parties. Also, mediation would not be an appropriate procedure for cases where one of the parties would wish to establish a precedent or want to have the case to be decided publicly, or would consider having a straightforward, strong case. Besides the mentioned, mediation is an attractive alternative for dispute settlement if parties want to have a prompt resolution, minimise the costs, have control over the process, maintain confidentiality and maintain business relationships. Additionally, must be noted that mediation can be used at any stage of a dispute, as the first step to resolve the dispute or even during the review of the case by a court or arbitration, or to prevent a dispute by seeking the assistance of a mediator during negotiations.[12]

2.      International commercial mediation settlement enforcement issues

As already mentioned, due to many above listed advantages of mediation, it should have been a clear first choice to try to reach a settlement in a dispute, but, because the standard for many years has been the well-established and familiar process of litigation or arbitration, parties usually chose these better known and therefore comfortable options, instead of mediation. In addition to this, arguably, one of the biggest issues of commercial mediation, that also discourages some parties to try and use the process, is potential difficulties with enforcement of settlement agreement following a successful mediation.

Mediation is a contract-based procedure and, if the process is successful and parties agree on terms to settle their dispute, it is being noted in a settlement agreement. Same as any contract, if one of the parties does not respect the agreed terms, the mediation settlement agreement can be enforced in a court. Without this mechanism, most probably, disputing parties would not consider mediation as beneficial and useful. Therefore, when an international commercial dispute is being settled, for clarity reasons it is advisable for the parties to agree also on the law and jurisdiction which would be governing the settlement agreement.

Mediation settlement agreement terms are usually respected by parties, because unlike litigation and arbitration where the settlement is being imposed upon parties, in mediation, where parties are negotiating, the settlement agreement terms are being reached mutually.[13] Parties, when agreeing on settlement agreement terms, following successful mediation, can consider many factors, such as possibility to comply, equality, sums of money, schedules for repayments and future relationship prospects, which is something that is not possible with courts or arbitrators, as these are considering historical facts and information on the dispute.[14]

In litigation and arbitration, only one of the parties is the winner and is happy with the resolution, whereas the other party, because of the loss, would not be pleased and therefore might not wish to comply with the decision. Therefore, even if most of the time parties are compliant with the decision, an enforcement mechanism is required, which for international arbitration awards is the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, named as the New York Convention. Whereas, for international commercial mediation, which as previously mentioned, would be a faster and more cost-effective process, currently does not have an enforcement mechanism. Consequently, mediated settlement agreements lack the legal effect, and, even if only just in rare cases the enforcement would be required, this is a substantial barrier for businesses to use mediation for their international commercial disputes. As, to reach a settlement, time and energy are needed and if such a settlement is not being complied with and it cannot be enforced, the other party would have to start over by using litigation or arbitration, which would require additional time and additional expenses. The mediation settlement agreement could be enforced by submitting a contract breach case to a court, but that most probably would be in a different jurisdiction, which would take even more time and resources, which is something that parties initially wanted to avoid by turning to mediation.[15]

One of the parties may delay or avoid complying with the mediation settlement agreement for many reasons, such as changes of circumstances, change of opinion, influence or actions of a third party, or a tactical delay. The tactical delay is arguably one of the most problematic issues for mediation, especially for international commercial disputes, because in a tactical delay a party by agreeing to settlement terms is deceiving the other one, without intention to comply with the settlement. This can be done to delay other proceedings or court actions, as the party would be showing signs of collaboration to resolve the dispute. Eventually, by acting in such a deceitful way the party would waste significant additional time and money of the other party, and consequently cause additional issues, which would have to be addressed to a court or arbitration. Therefore, as there is no instrument to enforce international commercial mediation agreements, they lack a legal effect and, if parties would use this process, they could risk wasting their time, energy and money.

Nevertheless, usually in international commerce parties want to find a quick and cost-effective resolution of the dispute to be able to continue the business relationships. Since, in mediation parties collaborate to resolve the dispute, if a settlement is reached, the compliance with the resolution would be much more probable than if the dispute would be resolved by arbitration or a court.

International arbitration awards, although being complied with voluntarily in more than 75 per cent of cases[16], have an effective, internationally unified way of enforcement provided by the New York Convention, as it has been signed in 159 countries.[17] Thanks to this enforcement instrument, international commerce disputing parties when submitting their case to arbitration can rest assured that the award will be fulfilled, and this is what international commercial mediation currently does not have.

As already mentioned, one of many advantages of mediation is that it can be initiated at any stage of the dispute, for example during proceedings of litigation or arbitration. In these situations, if parties would want to try to resolve the dispute more diplomatically by use of mediation, the settlement agreement would be regarded as a consent order, if agreed during litigation, or a mutually agreed award, if agreed during the arbitration. However, if the dispute would involve international nature various jurisdictions would have different rules about the circumstances in which a settlement agreement can be recorded and enforced as a court order.[18]

When parties need to resolve an international dispute using mediation, they can apply for the Mediation Settlement Enforcement Order (MSEO), which, when settled, can be enforced the same way as any court order or arbitration award. For the MSEO to be valid, parties must specifically consent for it, if enforcement would be required, so if the settlement agreement would not mention this specific enforcement option, then the settlement agreement would need to be submitted as a usual contract breach in the appropriate jurisdiction. If the MSEO would be specified and the application would be in a European country, then the enforcement would be following regulation ‘on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’[19]. If parties would not meet any of the requirements of this regulation, then the mediation settlement agreement ‘can be enforced by suing for breach of the terms of the settlement agreement, obtaining a judgement in the claim, and then enforcing the court order’[20].

Mediation, as previously mentioned, is a voluntary process, however in some jurisdictions for some disputes, before turning to court, parties are obliged to try and resolve disputes using mediation, for example in Italy when dispute would arise concerning disposable civil and commercial rights.[21] To support such a mandatory mediation, an effective enforcement mechanism must be in place. Following are few country examples, to have some insight on how mediation settlement agreements are being enforced in some jurisdictions:

·        Korea. Commercial Arbitration Bureau in rules regarding arbitration also mention rules on mediation and legal effects of settlement agreements. For example, an agreement related to Intellectual Property would be binding and have the same legal effect as a court order.[22]

·        The United Kingdom. The mediation practise has been well established for many years, similarly as case law on enforcement of domestic settlement agreements. The cross-border settlement agreements are being regulated by Europe directive on ‘certain aspects of mediation in civil and commercial matters’[23], based on which Ministry of Justice introduced mediation directive.[24]

·        Kingdom of Saudi Arabia. Mediation settlement agreement enforcement is not being regulated by any specific law, but the legal system does not reject local and international settlement agreements, which is due to the Holy Koran which encourages their fulfilment. At the same time, laws mention that to enforce an agreement, procedures must be legitimate.[25]

·        Italy. Here to enforce a local mediation settlement agreement, it must be submitted and confirmed by a court, but, if it has been appropriately certified by local lawyers, it could be directly enforced. International agreements are treated as contracts and therefore would need be submitted to a court for review.[26]

In summary, while international commerce mediated settlement agreements due to the collaboration of parties, are almost always complied with voluntarily, currently there is no internationally unified way for enforcement. Therefore, if such an agreement would need to be enforced, it would most probably have to be done as a new case via arbitration or litigation, which is what parties were trying to avoid by turning to mediation, and which would take additional time and resources.

In Europe the directive on ‘certain aspects of mediation in civil and commercial matters’[27] and internationally the United Nations Commission on International Trade Law (UNCITRAL) law on ‘International Commerce Mediation’[28], both legislations provide mediation regulations, but both fail to regulate international commerce mediation settlement agreement enforcement. Here must also be noted that procedures and practice, which could be considered, because being effective in common law jurisdictions, most likely would be unusable in civil law jurisdictions and other way around.

3.      Singapore Convention

Arguably, UNCITRAL is best known for its arbitration rules and law on ‘International Commercial Arbitration’[29], however, since publication of ‘Conciliation Rules’[30] in 1980 and law on ‘International Commercial Conciliation’[31] in 2002, UNCITRAL has taken substantial role in mediation (from Oxford English dictionary: ‘conciliator’ is ‘a person who acts as a mediator between two disputing people or groups’, which in its essence is the same as ‘mediator’; also, the terms ‘conciliator’ and ‘mediator’ were used interchangeably in the past, while in recent years mostly terms ‘mediator’ and ‘mediation’ are being used).

In 2007 UNCITRAL Working Group II, which is working on dispute settlement using arbitration and conciliation, following the 40th session of the congress, published document on ‘Modern Law for Global Commerce’[32], where issues on agreement enforcement were raised. Eventually, in 2014 USA members proposed to the Working Group II to consider the development of a convention, which would deal with issues of international commerce mediation settlement agreement enforcement, the note stated: ‘the lack of a harmonised enforcement mechanism was a disincentive for businesses to proceed with conciliation’[33]. Following this, the group started work on an instrument that could address the mediation agreement enforcement issues and be as effective as the New York Convention for international arbitration agreements.

Following the 68th session of the group in 2018, following intensive deliberations by eighty-five country members and thirty-five international governmental and non-governmental organisations, which lasted for three years, the wording of the new enforcement instrument was formally approved. It was named ‘United Nations Convention on International Settlement Agreements Resulting from Mediation’ and will be known as the Singapore Convention (further the Convention), because it was agreed that the official signing ceremony will be held in Singapore on 1st August 2019. The Convention will come in to force once signed be at least three states.[34] Therefore, this will be the first-ever convention being signed and named after the Singapore, which in past years has been very active with matters concerning international commerce and its alternative dispute resolution solutions, such as Singapore International Arbitration Centre and its own arbitration rules.[35]

The Convention regulates requirements and evidence of settlement agreements to be enforceable, as well as circumstances under which enforcement can be refused. The goal of the Convention is to encourage mediation use for international commerce disputes, as the Convention will provide an effective and internationally unified instrument for mediation settlement agreement enforcement. The encouragement of international commerce parties could be achieved by eliminating or at least minimising situations when one of the parties to the mediation settlement agreement would decide to avoid fulfilment of the agreed terms in the settlement. Once the Convention would come in to force, if one of the settlement parties would avoid fulfilment of the agreement, instead of suing the party for breach of contract, the petitioner would be able to request the enforcement directly in the jurisdiction where the enforcement is sought.

Additionally, here can be noted, that the Convention was also supported because of the certainty that mediation ‘results in signi?cant bene?ts, such as reducing the instances where a dispute leads to the termination of a commercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by [member] States’[36].

The Convention in its Preamble notes ‘that mediation is increasingly used in international and domestic commercial practice as an alternative to litigation’[37], and considers ‘that the use of mediation results in significant benefits’[38]. Following these statements, the Convention has total of sixteen articles and the following are some of the most fundamental of them:

·        Article 1 on ‘scope of application’, outlines that the Convention will apply only to mediated agreements, which must be in writing and where parties from different countries have resolved a commercial dispute. This article consequently excludes all other dispute settlements, such as employment, family, consumer and national commercial, as it specifically states that only international commercial agreements are in the scope of the Convention. Notably, UNCITRAL Working Group in the convention is using ‘mediation’ throughout the text, instead of previously used ‘conciliation’, as it was simply a more widely-used term, consequently also showing that the name of the process does not matter if it falls within the scope of the definition. The term ‘mediation’ was defined in the Group notes as a process ‘whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons [..] lacking the authority to impose a solution upon the parties to the dispute’[39]. Also, in the negotiations of the Group, some delegations suggested to insert wording of ‘structured’ process, to exclude ‘informal’ processes, such as those that happen in cafes, but since, following lengthy discussions, a satisfactory definition of ‘structured’ was not found, this wording was excluded. Regarding the requirement of settlements being international, here the Group decided for countries to be easier to join the convention, without requiring making changes to their laws, and leaving the choice of domestic application to individual countries. The ‘international’ requirement must be met at the time when the settlement has been concluded, regardless of whether the requirement would be met before the mediation or when the enforcement would be sought, and this requirement will be met depending on the identity of parties, regardless of the dispute. Additionally, here should be noted that excluded besides the mentioned are also settlements that would be enforceable as court judgements. This exclusion, although not seen in practice frequently, was excluded mostly because of Hague Conference draft on the ‘Recognition and Enforcement of Foreign Judgments’, as it would provide parties with two routes for enforcement of these settlement agreements. This exclusion affects those settlements that are concluded before or approved by a court, during proceedings that would enable the settlement to be enforced as a court judgment. Here also should be noted a risk of a gap, in case, if the settlement would be enforceable as a judgement in the country of origin, but not in the receiving country. However, following some discussions of the Group, it was decided that even if a gap would be created, the Convention must not cover something that is regulated by the Hague instrument. Another exclusion relates to settlements that would be enforceable as arbitration awards, because the Group did not want to have an overlay with the New York Convention, which already regulates enforcement of these settlements, as being arbitration awards.[40]

·        Article 2 on ‘definitions’, defines terms used in the Convention, such as place of business, ‘mediation’ and ‘in writing’. Notable here is that the requirement of the settlement agreement to be ‘in writing’, includes a wide range of options, as it states, ‘recorded in any form’, with which potentially all possible forms of ever developing electronic communications will be acceptable. Concerning the scope of application, this article clarifies how to determine the place of business if a party has no specific place of business and if a party has multiple places of business, the latest for international companies, most probably would be a norm. Additionally, here could be noted that the relevant place of business will be determined with the focus on the dispute, rather than the settlement agreement place.[41]

·        Article 3 on ‘general principles’, notes principles and obligations for parties of the Convention, providing, metaphorically speaking ‘sword and shield’[42] for settlement agreement enforcement. The first paragraph states that parties, per rules of procedure, following rules of the Convention, will be able to enforce settlement agreements, providing the ‘sword’. The second paragraph provides the ‘shield’, because a party will be able to dispute enforcement of a settlement agreement, if the matter has already been resolved, in these situations the party to the Convention will be able to invoke the settlement agreements. Consequently, providing full offence and defence options to the parties of mediated settlement agreements.[43]

·        Article 4 on ‘requirements for reliance on settlement agreements’, provides requirements to enforce a settlement agreement. The main requirements are signatures of parties on the settlement agreement and ‘evidence that the settlement agreements resulted from mediation’, which includes the signature of the mediator or an attestation of institution administering the mediation, or any other acceptable evidence. Besides, this article mentions the requirement of settlement translation, touches on signatures of electronic communications and requirement for parties of the Convention to enforce the settlements ‘expeditiously’.[44] Here notable is the fact that the Convention allows ‘any other evidence’ to prove that the settlement agreement has resulted from mediation. This is particularly useful, because many mediators conscientiously are refusing to sign settlement agreements to avoid potential consequences, such as being called as a witness or being involved as a party, if the dispute would be followed by litigation or arbitration. Similarly, many mediators also refuse to comment if parties have participated in mediation.[45] Nevertheless, taking into consideration the growing number of mediation administration institutions, the reference to attestation by an institution, as being one of the recognised types of evidence, is highly helpful.

·        Article 5 on ‘grounds for refusing to grant relief’, states basis to refuse the enforcement, such as incapability of being performed, the incapacity of a party, nullification of the settlement, subsequent modification or unfinalized terms of the settlement, resolution of the agreed terms and breach of mediator independence.[46] The goal of the Working Group for this article was to formulate it in general terms, to be limited and exhaustive, because, if it would be complex, extensive and detailed, the enforcement process would possibly not be as efficient and fast. The general idea was to take a similar approach and as an example the New York Convention for arbitration award enforcement, consequently both convention fifth articles are similar and most of the grounds for the refusal must be raised by the opposing party.[47] As for other grounds mentioned in this article, the court considering the enforcement would be able to raise concerns of its own accord. Certainly, the opposing party would be able to demonstrate that other requirements of the Convention are not met, such as the dispute is not international or commercial, but these grounds, since they are mentioned throughout the Convention, to not duplicate are not mentioned in this article. Notable is that the listed grounds are exhaustive, the courts would not be able to deny enforcement on additional basis, which are not listed in the Convention. The Working Group discussed the option of including refusal ‘due process’, but it was rejected and not included, because in mediation both parties voluntarily agree on the settlement agreement terms. Eventually, Working Group rejected to include other grounds for enforcement refusal and drafted the specified, exhaustive list.[48] For the purposes of this work, the most noteworthy grounds for refusal are mediator misconduct, article 5(1) (e) ‘a serious breach by the mediator of standards’[49] and (f) ‘mediator’s impartiality or independence’[50]. These two grounds were extensively discussed within the Working Group, but, following debates, it was eventually decided to include these two grounds in concise, narrowed, specific format as it stands presently. As an example, concerns such as the following were discussed, due to the nature of the process, mediator sometimes must spend just a few minutes with one party and several hours with another one and, because of the private communications, it would be hard to determine if parties were treated fairly.[51] Additionally, notable is that these two clauses are different from the rest in that they relate to the conduct of the mediation process rather than to the settlement agreement. Therefore, any mediator settling an international commercial dispute will need to be aware of the potential arguments and will have to take all possible precautions to avoid refusal of settlement agreement enforcement on these grounds.

·        Article 6 on ‘parallel applications or claims’, provides authority to Parties to the Convention to adjourn the decision, if pending litigation or arbitration related to the settlement agreement has been made in parallel, as it could affect the settled agreement.[52]

·        Article 7 on ‘other laws or treaties’, permits Parties to the Convention to regulate national legislation to extend the scope of the Convention and use it within domestic laws for other settlements.[53]

·        Article 8 on ‘reservations’, allows Parties to the Convention to make two kinds of exceptions affecting responsibility to apply the Convention in specific circumstances. First reservation, ‘shall not apply this Convention to settlement agreements to which it is a party, or to which any governmental agencies or any person acting on behalf of a governmental agency is a party’[54]. The Convention can be applied to mediated settlement agreements where states are parties, but Working Group wanted to grant flexibility, so as not to discourage them from becoming a Party of the Convention.[55] If this reservation would not have been included, some states might have considered it as an issue, as situations when settlements are being signed by government agencies or their representatives, although they have not been authorised by domestic law to do so, can happen. Additionally, with this reservation, a state can restrict the application of the Convention to certain categories of settlements, which would involve its participants. Therefore, states can declare and define the scope of the Convention application within tier courts. The second reservation, ‘shall apply this Convention only to the extent that the parties to the settlement agreement have agreed to the application of the Convention’[56]. In general, the Convention would apply as a law, but if parties to the mediated settlement would state in their agreement to opt-out from the Convention, then courts could refuse the request for enforcement based on Article 5 ‘Grounds for refusing to grant relief’ (1)(d) ‘contrary to the terms of the settlement agreement’[57]. Following thorough debates regarding opt-in and opt-out, this reservation was eventually introduced. Therefore, the Convention will apply to all mediated settlements, unless parties specifically opt-out from its application, but, if a state would declare this reservation, the Convention would apply only if settlement parties opt-in and agree to the application. Notable would be that, if Parties to the Convention would declare the second reservation, then the application of the Convention would be significantly limited, as mediation parties, by not being fully aware, would not opt-in and therefore would not be able to seek relief based on the Convention.

·        Article 9 on ‘effect on settlement agreements’, clarifies that the Convention would apply only to those settlement agreements that are concluded after it has entered in to force for the concerned state.

The further articles mostly provide regulation between Parties to the Convention and the Convention itself, regarding ratification, amendment proposals, the entry into force and denunciation.

In just several years the Working Group has managed to produce a new and promising Convention, which in the future could impact international commercial dispute resolution, similarly as the New York Convention did many decades ago. Taking into consideration the New York Convention impact on arbitration, although only after many years of its appearance, which eventually increased use of international arbitration, the same potential has the Convention for mediation, but now with the New York Convention eventual success in mind. Whether the Convention will receive the attention it deserves and if states will sign it, will eventually depend on whether legal counsel lawyers, mediation practitioners and other stakeholders will make clear the potential advantages of the Convention, consequently persuading states to ratify it.

4.      Mediation practice

For those considering entering into mediation practice, the mediation field could appear to be confusing. It has been known that students studying alternative dispute resolution have frequently asked questions, such as who qualifies to mediate, who attends mediation, how a dispute gets to mediation and what aspects of conflicts are mediated. Answers to these questions contain a wide range of possibilities that reflect the diversity of mediation practice. However, this diversity of mediation practice field apparently is being directed towards standardisation and institutionalisation.[58]

In mediation practice, there is a tension between two aspects, where on one side practitioners want experimentation and innovation, but from the other side consistency and quality of the service, which creates the basis for the consistency and diversity discussions.[59] The supporters of consistency wish to create standards to make sure of process quality and mediator competence, which would require systems that manage complaints and screen compliance. These standards then could be applied to processes, organisations and practitioners.[60] From the other hand, there are commentators highlighting risks of the movement towards consistency, as the standardisation could threaten the diversity of mediation practice, as well as process flexibility, eventually effectiveness of cost and consequently accessibility.[61]

The consistency and diversity debates touch on three main issues:

·        Regulatory. Institutionalisation, regulation of the mediation practice and community-cantered, unregulated mediation services.

·        Professionalisation. Creation of a single mediation profession and a diversity of the service providers.

·        Process. General flexibility of the process and officially certain, easily identifiable, well-structured process.[62]

4.1. Regulatory debate

Regulation of mediation is being addressed in literature by contexts of legalisation and institutionalisation. As with any regulation, it takes forms of legislation, case law and organisation guidelines, as well as government policies, and similar. The two different approaches that can illustrate the deregulatory difference would be an institutionalised and centralised court system and, on the other hand, independent and decentralised mediation system apart from any legal system.[63]

Currently, mediation practice in most jurisdictions could be described as at an experimentation and diversity stage, where only comparatively recent developments of legislations have taken movement towards institutionalisation and regulation, where the Convention is the latest development in this regard. As an example, here can be mentioned the Netherlands, where ‘experiment first, then regulate’ method for the development of alternative dispute resolution has been adopted.[64] Whereas other civil law countries have moved directly to the regulation of mediation. Here, as an example, could be mentioned Canada, where district government of Quebec, which uses civil law system, is involved in the regulation of mediator accreditation more than other district governments, which are using common law.[65]

Possibly the civil law country move towards regulation is due to international regulatory developments of alternative dispute resolution, but it could also be due to the civil law culture of codes, systems and government involvement in public interests. In contrast, the common law system procedure flexibility to be able to adapt to changes and cultural mentality, which is usually open to private-sector innovations towards services, helps to explain diversity and development of mediation in the United States and Australia.[66]

Presently, the United States and Australia have greatly benefited from early experimentation with models of mediation and its procedural structure, but still, the solutions implemented in these common law countries would not be easily transferred to other countries. While the United States and Australia share similar legal systems, their responses to the consistency and diversity debates are different. The United States by developing towards consistency passed the Uniform Mediation Act 2001[67]. This Act was the initial move towards uniformity, legislation to be mirrored throughout state jurisdictions. The United States move towards a uniform solution shows a widely complicated web of regulations that affects mediators that has led to doubts about obligations and rights of mediators, lawyers, courts and clients. In many ways, the Act signifies a compromise of certain problems being dealt with broadly, but others not being mentioned at all, such as accreditation and training. Nevertheless, regardless of some criticism, the Act, in general, is being supported. One of the most recent developments in the United States regulation regarding mediation as the initiative, which continues regulatory consistency movement, is the national standards of mediator conduct.[68]

Australia, on the other hand, continues to develop mediation practice by encouraging diversity within organisations and industries by promoting consumer choice and awareness.[69] In 2001 the national alternative dispute resolution advisory council recommended specifically to take ‘framework approach’ for alternative dispute resolution standards.[70] This framework approach required the upkeep of nationwide viewpoint on differences and similarities in legislation, case law and practice, a task that is possible in Australia, but would not be in the United States because of the population size and different state jurisdictions. In 2006 a national consultation process was founded for mediator accreditation, which resulted in the establishment of a national scheme for mediator accreditation. This scheme was voluntary and established basic standards that were able to run in parallel with other accreditation standards that already were in place for mediators.[71]

Regarding regional regulation, the European Commission has produced multiple initiatives that regulate mediation. In 2001 a recommendation on specific issues of mediation for consumers was adopted[72]. In 2002 the Commission declared alternative dispute resolution a political priority and emphasised a wide range of disputes to be addressed on a regional basis, and in 2004 it supported the development of European Code of Conduct for Mediators[73] and proposed a Directive on mediation, which came in to force in 2008[74]. While Europe is still a long way from establishing unified regional standards for mediation, the trend for regulation and standardisation is apparent, which is also obvious from the support of the Convention.

The opinions of commentators differ on the disadvantages and advantages of mediation institutionalisation but looks like the debaters agree on experimentation during the initial years of the current mediation, giving the practice diversity and richness, which would not be possible if from the beginning it would be tightly regulated.

4.2. Professionalisation debate

In general, when practices are being professionalised and become established they do not welcome public scrutiny. Professions usually create a certain culture, which reflects client interaction with the provided service quality. Therefore, it would be important to look at the process of professionalisation, how it changes the system and who it possibly excludes.

With an Act of Parliament, Austria was the first country which officially recognised mediation as a profession[75]. In other countries, such as the United States and Australia, mediation as a profession has been recognised by simply having paying clients. Attempts for monopolisation of the mediation profession have failed. Simultaneously, pressure for professionalisation regarding questions of ownership, which usually raises with the appearance of the new practice area, continuously and without a surprise appear through the alternative dispute resolution field. For example, the acknowledgement of mediation as a professional role for a lawyer by German legal organisations resulted in several court cases, where the rights of non-lawyers to mediate or even simply advertise their services was challenged.[76]

The biggest influence, regarding who will mediate, has referrals, especially public bodies, such as professional advisors, community groups, alternative dispute resolution organisations and courts. These public bodies, same as other referrals, are usually called ‘gatekeepers’, as they are in control of who gets to enter the mediation path. The practice has shown that usually, gatekeepers are referring cases to those with whose background and work they are familiar and, additionally, legal field gatekeepers will refer to mediators with a legal background, but non-lawyers to non-lawyer professionals.[77]

Legal officials gradually distinguish mediation as the role of a lawyer and, consequently, the profession is increasingly not including non-lawyers as mediators, moreover because the mediation can have legal consequences. Emerging legislation, case law and practice from countries such as the United States, Australia and Germany are a good example of this trend.[78]

A noteworthy difference between civil law and common law countries shows concerning education and training. In civil law countries such as Netherlands, Germany, Switzerland, France and Austria interdisciplinary focus and in-depth theory are being mostly provided by private mediation training providers and the difference in the training methodology and time required is drastically different from common law countries. Usually, training courses consist of many mediation meetings without private sessions, and mostly involve interdisciplinary theoretical questions, which compliments wide practical skill sessions. The term of these courses normally is between one to two years, where the requirement of contact hours is between one hundred and six hundred hours. For comparison, the average training in common law countries is founded on a single session model with optional private sessions. The term of mediation courses in the common law countries normally is between four to five days, with thirty to forty contact hours. In education and training the scientifically-based and intellectual approach for learning that is characteristic to civil law Europe countries is a radical contrast to the more skills-based and pragmatic approach of countries with common law.[79]

It looks like the beginning of mediation in civil law countries, which was resisted by most of the legal professionals, allowed non-lawyers to prosper as mediators of various disputes, especially in community, family and victim-offender cases. An interesting fact is evident in the Netherlands, where it has been observed, that most of the mediation trainers are psychologists[80]. In Austria, similar peculiarity can be observed, as the law requires lawyer-mediator to have co-mediator a psychologist for specific family law disputes[81]. Therefore, the interdisciplinary component for practice and training in civil law countries looks like to be well established.[82]

However, regardless of the strong interdisciplinary focus of training in civil law countries, developing areas for mediation practice usually mirror significant areas of legal practice. Mediation training and services are usually organised around specialisations which are related to valuable legal areas, instead of processes, as examples can be mentioned commercial, workplace, insolvency and environmental mediation.[83]

In common law countries, despite the fact that most mediators develop their practices in a specific area, most do not promote their services as being provided within just one practice area. Additionally, in common law countries advanced training includes not only some specific specialisations, such as commercial mediation, normally focuses the training on processes, for example conducting multi-party mediation, negotiation skills, representing clients, evaluative and transformative mediation, which is different than in civil law countries.[84]

4.3. Process debate

The many ways of mediation processes are represented by many models of mediation practice. At one end the mediation process highlights the importance of empowerment and recognition of parties in mediation, but at the other end of the spectrum legal, evaluative mediation model concentrates on logical problem-solving with the assistance of a mediator, which usually in this process would be a lawyer, as a process and legal expert. Moreover, the continuously developing technologies and ever-evolving internet solutions are base for the growing practice of e-mediation, which challenges commonly known mediation process conceptions.[85]

Additionally, lack of ‘written in the stone’ definition of the mediation processes leads to different practices among mediators, which, however, raises diversity in mediation, also carries challenges for the promotion of mediation for clients, as well as challenges for quality control.[86]

5.      Potential impact of the Singapore Convention on mediation practice

The Convention for international commercial mediation will work the same way as the New York Convention for international arbitration. Potentially, mediation will establish its position as a quick, cost-effective and, because of the Convention, a reliable way for international commercial dispute resolution, and a respectable alternative to arbitration and litigation.

The Convention has high potential to extend the use of international mediation, because of the criticism towards currently widely popular litigation alternative – arbitration. International commercial arbitration has been criticized for being expensive and slow, and, in some situations, suffering from over-judicialisation.[87]

In contrast to mediators, arbitrators to decide evaluate facts and laws, and produce awards which are binding to disputing parties. The awards consequently are similar to court judgments. Mediated settlement agreements, on the other hand, are in its essence contracts, containing terms and conditions regarding the resolution of a dispute. The terms of these settlements are being agreed and drafted by parties themselves or with the assistance of their counsel. Mediators are not imposing any terms on parties and usually are not drafting the agreements, and in many situations even refuse to sign the eventually agreed settlements. The Convention will be the first international instrument to grant international recognition and legal effect of enforcement to mediated settlement agreements.[88]

Arbitration awards, as being imposed upon parties, are creating situations where one party is not going to be pleased with the decision, therefore, could try to invalidate it or initialise annulment procedures, and eventually resist its enforcement. Mediated agreements, as being produced by cooperation of parties, if acting in good faith, would not settle the dispute if a better alternative would exist. Because of the Convention parties will have better assurance as their settlement will be enforceable, as currently, if the settlement needs to be enforced internationally, parties often have to use the means that they wanted to avoid in the first place – litigation or arbitration. Additionally, after the Convention would be ratified, parties most probably would litigate over terms of the settlements, if they are comprehensible and clear, rather than over the initial dispute. Parties could disagree on settlement obligations, such as if it has been drafted in unclear terms concerning the promotion of future business. This characteristic of the Convention could eventually have an influence on the development of legal procedures and norms, as dealing with enforcement requests.[89]

The Convention in its simplicity is concerned only about enforcement and recognition of settlement agreements that are produced by a successful mediation. This non-involvement in other steps of the process by the Convention will limit the complexity and a general number of actions when a party would seek relief, as it will not deal with matters such as parallel litigation or arbitration, compliance evaluation with agreements, interpretation of settlement agreements or forced mediation. Such actions will still be possible under domestic laws, but these will fall outside of the Convention scope.[90]

The Convention, same as the New York Convention, does not address confidentiality. Therefore, when enforcement would be sought under the Convention, the confidentiality of the mediation process would still be governed by domestic laws. Confidentiality in mediation is highly important as most often that is one of the aspects that attract parties to the process. Confidentiality in mediation protects information and documents that are being shared during the process, therefore, the same cannot be shared with the public and used in further proceedings, in case if mediation fails, and protects identities of all parties, including the mediator. The vagueness regarding confidentiality in enforcement proceedings eventually could impact the behaviour of mediators and parties, therefore, the mediation process and the wording of settlement agreements, as claims based on the Convention for enforcement would become customary.[91]

The Convention, in contrast to the New York Convention, does not have ‘seat’ or ‘nationality’, because the place of the mediation does not determine where relief would have to be sought. The notion of the seat was rejected by the Working Group, to avoid giving legal status to a single jurisdiction between multiple that mediation could impact. By eliminating seats in mediation proceedings, the Convention liberates settlement agreements from legal necessities of any particular place of mediation proceedings. Additionally, the Convention does not have any provisions for annulment of settlement agreements. This aids in relation to potential double control of settlement agreements, as a challenge and consequent annulment of the agreement is not an option for defence, which, arguably, has harmed the development of international arbitration award enforcement process.[92]

While the Convention and the New York Convention share similar provisions, they treat with different requirements and are adapted to different processes. The New York Convention was an improvement on existing regulations for the recognition and enforcement of international arbitration awards, whereas the Convention is the first international treaty for recognition and enforcement of international commerce mediation settlement agreements, which should serve as an important step to promote mediation services.[93]

Once the Convention is ratified by at least three states, it will come in to force. Following which parties, if required, will be able to apply for enforcement of their international commerce mediation settlement agreements in member states. This would work similarly as it is presently for international arbitration awards due to the New York Convention, which for many decades, while not without its flaws, in general, has worked quite well for the New York Convention.

Altogether, the most probable impact of the Convention on mediation practice could be the following:

·        More mediations. The Convention was being developed with the promotion of it in mind, to attract international commercial disputing parties to the more cost-effective, faster and simpler process that is mediation. Among other benefits, this process has the best potential to save business relationships and, one of quite an important aspect for governments, would be able to take some load of dispute resolutions off from the courts. Considering the success of the New York Convention, upon which the Convention has been developed, most likely the goal of the Convention will be achieved, and international parties will consider using mediation for their commercial disputes more often than presently.

·        More mediations conducted by institutions. As described above, per the Convention regulations, if a party wants to enforce a mediation settlement agreement, the requirement is to provide proof that it has been produced in a result of successful mediation. The proof can be either the mediator signature on the settlement agreement or an attestation of the administering institution. Mediators in practice, due to privacy, in some situations refuse to sing settlement agreements. Therefore, most likely, it could lead to situations where parties, to be sure to comply with this requirement, will prefer to use mediation institutions for their dispute settlement, as this could seem like the most certain way to comply with this potential future enforcement requirement. Consequently, mediators in practice could prefer to provide their services using mediations administering institutions, especially if an international commercial dispute needs to be settled.

·        More attention to the mediation process. Parties in opposition to settlement agreement enforcement request, will be able to refer only to very limited grounds provided in the Convention, where the considering court can refuse the application for relief. Amid others, the refusal grounds include lack of mediator independence and breach of standards in the mediation process. Similar to the arbitration, where a party can dispute that the arbitrator has mishandled the process, in mediation the opposing party will be able to dispute enforcement of the settlement agreement due to mishandled process or mediator not being fully independent. Most likely, these cases would not be that often, but every such a case would draw harmful attention to the mediator, which potentially should lead to practice improvement in general and possibly to a better exchange of information between mediators on the best practice.

·        More domestic laws on mediation. States which will ratify the Convention, most likely, will have to pass some domestic legislation to incorporate the new mechanism for mediation settlement agreement enforcement. This would consequently lead to more states with extensive domestic legislation related to mediation, as, most probably, countries making changes to domestic laws would consider additional regulations regarding mediation, instead of just incorporating the Convention. The additional regulations potentially could be related to proceedings, confidentiality and process for mediator appointment, all of which are not covered by the Convention. As an example, UNCITRAL has already amended its International Commercial Conciliation[94], to address ‘mediation’ instead of ‘conciliation’ and incorporate the Convention.

Conclusion

Mediation settlement agreements are usually being complied with, because parties are cooperating to settle, but in some cases, enforcement may be required, such as with tactical delay cases. The current international instruments and ways for settlement enforcement are not unified and, if a settlement would be reached using mediation, the parties to enforce it would have to turn to a court which also most likely would be in another jurisdiction for breach of contract. As currently there is no unified instrument that would give legal effect to mediation settlement agreements for enforcement, parties could be risking wasting their time and money. The New York Convention, which is signed by 159 countries and is being considered widely successful, encourages parties to use arbitration and the Convention will provide the same globally unified legal effect for international commercial mediation settlements, which should encourage parties to use mediation and consequently positively impact mediation practice.

Another of the mediation practice affecting factors is that parties are not fully aware of the process and its advantages, as parties are mostly used to well-established dispute resolution options as litigation and arbitration. This issue can be addressed mostly by legal councils that are advising parties on best approaches to settle a dispute, and, if the Singapore Convention will receive the attention that it deserves, and states ratify it, then, undoubtedly, the meditation practice, especially related to international commerce, would flourish.

Bibliography

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·        Burchell v Bullard [2005] EWCA Civ 358

·        Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576

·        Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd [2014] EWHC 3148 (TCC)

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·        Commission Recommendation on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (2001/310/EC) [2001] OJ L109/56

·        Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2000] OJ L12/1

·        Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3

·        UNCITRAL Conciliation Rules 1980

·        UNCITRAL Convention on International Settlement Agreements Resulting from Mediation 2019

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·        UNCITRAL Model Law on International Commercial Conciliation 2002

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·        Uniform Mediation Act 2001

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·        Klaus Hopt and Felix Steffek, Mediation: Principles and Regulation in Comparative Perspective (Oxford University Press 2012)

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·        Susan Blake, Julie Browne and Stuart Sime, A Practical Approach to Alternative Dispute Resolution (4th edn, Oxford University Press 2018)

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·        Annie de Roo and Rob Jagtenberg, ‘Mediation in the Netherlands: Past - Present - Future’ (2005) EJCL <https://www.ejcl.org/64/art64-8.pdf> accessed 15 July 2019

·        Bruno Zeller and Camilla Andersen, ‘Discerning the Seat of Arbitration – An Example of Judicialisation of Arbitration’ (2015) NLA <https://trove.nla.gov.au/work/207958666?q&versionId=259053281+260611834> accessed 15 July 2019

·        Felix Peter Phillips, ‘Concerns on the New Singapore Convention’ (2018) Mediate <www.mediate.com/articles/phillips-concerns-singapore.cfm> accessed 8 July 2019

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·        Loukas Mistelis, ‘ADR In England and Wales: a Successful Case of Public Private Partnership’ (2003) Academia <https://www.academia.edu/262781/ADR_In_England_and_Wales_a_Successful_Case_of_Public_Private_Partnership > accessed 9 July 2019

·        Mary Banham-Hall, 'A brief history of mediation' (2017) Focus mediation <https://blog.focus-mediation.co.uk/2017/04/04/a-brief-history-of-mediation/> accessed 8 June 2019

·        Steven Skulnik, 'Mediation' (2018) Practical Law <https://uk.practicallaw.thomsonreuters.com/7-107-6830?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1> accessed 8 June 2019

·        Tania Sourdin, ‘Mediation in the Supreme and County Courts of Victoria’ (2005) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550> accessed 9 July 2019

·        Timothy Schnabel, ‘The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements’ (2018) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3239527> accessed 14 June 2019

Websites

·        Ashurst, ‘Quick guides: Commercial Mediation’ (ASHURST, 2019) <https://www.ashurst.com/en/news-and-insights/legal-updates/quickguides---commercial-mediation/> accessed 15 June 2019

·        Australian Mediation Association, ‘Australian National Mediator Accreditation Standards’ (AMA, 2019) <https://ama.asn.au/mediator-accreditation/> accessed 14 July 2019

·        European e-Justice, ‘European Code of Conduct for Mediators’ (EJ, 2014) <https://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf> accessed 14 July 2019

·        International Mediation Institute, ‘The Singapore Convention on Mediation: A First Look’ (IMI, 2018) <https://www.imimediation.org/2018/10/22/the-singapore-convention-a-first-look/> accessed 17 June 2019

·        National Alternative Dispute Resolution Advisory Council, ‘A Framework for Standards: Report to the Commonwealth Attorney-General’ (NADRAC, 2001) <https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx > accessed 9 July 2019

·        Queen Mary University of London, ‘2008 Corporate Attitudes: Recognition and Enforcement of Foreign Awards’ (QMUL, 2008) <https://www.arbitration.qmul.ac.uk/research/2008/> accessed 14 June 2019

·        Singapore International Arbitration Centre, ‘Our Rules’ (SIAC, 2019) <https://www.siac.org.sg/index.php> accessed 17 June 2019

·        United Nations Commission on International Trade Law, ‘Texts and Status’ (UNCITRAL, 2019) <https://uncitral.un.org/en/texts> accessed 15 June 2019

·        United Nations Commission on International Trade Law, ‘Working Group II 2000 to present: Arbitration and Conciliation / Dispute Settlement’ (UNCITRAL, 2019) <https://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html> accessed 15 June 2019

·        University of California Los Angeles, ‘UCLA Law Review’ (UCLA, 2007) <https://www.law.ucla.edu/student-life/law-reviews-and-journals/ucla-law-review/> accessed 13 June 2019

·        World Intellectual Property Organisation, ‘Mediation: Frequently Asked Questions’ (WIPO, 2019) <https://www.wipo.int/amc/en/mediation/guide/> accessed 8 June 2019

[1] Mary Banham-Hall, 'A brief history of mediation' (2017) Focus mediation <https://blog.focus-mediation.co.uk/2017/04/04/a-brief-history-of-mediation/> accessed 8 June 2019

[2] ibid

[3] Steven Skulnik, 'Mediation' (2018) Practical Law <https://uk.practicallaw.thomsonreuters.com/7-107-6830?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1> accessed 8 June 2019

[4] World Intellectual Property Organisation, ‘Mediation: Frequently Asked Questions’ (WIPO, 2019) <https://www.wipo.int/amc/en/mediation/guide/> accessed 8 June 2019

[5] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576

[6] Burchell v Bullard [2005] EWCA Civ 358

[7] Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd [2014] EWHC 3148 (TCC)

[8] ibid

[9] ibid

[10] ibid

[11] ibid

[12] ibid

[13] Anna Giordano Ciancio, ‘Mediation at the Intersection with Contract Law: The Settlement Agreement’ (2013) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272989> accessed 12 June 2019

[14] University of California Los Angeles, ‘UCLA Law Review’ (UCLA, 2007) <https://www.law.ucla.edu/student-life/law-reviews-and-journals/ucla-law-review/> accessed 13 June 2019

[15] Timothy Schnabel, ‘The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements’ (2018) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3239527> accessed 14 June 2019

[16] Queen Mary University of London, ‘2008 Corporate Attitudes: Recognition and Enforcement of Foreign Awards’ (QMUL, 2008) <https://www.arbitration.qmul.ac.uk/research/2008/> accessed 14 June 2019

[17] United Nations Commission on International Trade Law, ‘Texts and Status’ (UNCITRAL, 2019) <https://uncitral.un.org/en/texts> accessed 15 June 2019

[18] Ashurst, ‘Quick guides: Commercial Mediation’ (ASHURST, 2019) <https://www.ashurst.com/en/news-and-insights/legal-updates/quickguides---commercial-mediation/> accessed 15 June 2019

[19] Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2000] OJ L12/1

[20] Susan Blake, Julie Browne, and Stuart Sime, A Practical Approach to Alternative Dispute Resolution (4th edn, Oxford University Press 2018)

[21] United Nations Commission on International Trade Law, ‘Working Group II 2000 to present: Arbitration and Conciliation / Dispute Settlement’ (UNCITRAL, 2019) <https://www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html> accessed 15 June 2019

[22] ibid

[23] Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3

[24] UNCITRAL Working Group II (n 21)

[25] ibid

[26] ibid

[27] Directive 2008/52/EC (n 23)

[28] UNCITRAL Model Law on International Commercial Conciliation 2002

[29] UNCITRAL Model Law on International Commercial Arbitration 1985

[30] UNCITRAL Conciliation Rules 1980

[31] UNCITRAL Model Law 2002 (n 28)

[32] UNCITRAL Working Group II (n 21)

[33] ibid

[34] ibid

[35] Singapore International Arbitration Centre, ‘Our Rules’ (SIAC, 2019) <https://www.siac.org.sg/index.php> accessed 17 June 2019

[36] International Mediation Institute, ‘The Singapore Convention on Mediation: A First Look’ (IMI, 2018) <https://www.imimediation.org/2018/10/22/the-singapore-convention-a-first-look/> accessed 17 June 2019

[37] UNCITRAL Convention on International Settlement Agreements Resulting from Mediation 2019

[38] ibid

[39] UNCITRAL Working Group II (n 21)

[40] ibid

[41] UNCITRAL Convention (n 37)

[42] UNCITRAL Working Group II (n 21)

[43] UNCITRAL Convention (n 37)

[44] ibid

[45] Felix Peter Phillips, ‘Concerns on the New Singapore Convention’ (2018) Mediate <www.mediate.com/articles/phillips-concerns-singapore.cfm> accessed 8 July 2019

[46] UNCITRAL Convention (n 37)

[47] UNCITRAL Working Group II (n 21)

[48] ibid

[49] UNCITRAL Convention (n 37)

[50] ibid

[51] UNCITRAL Working Group II (n 21)

[52] UNCITRAL Convention (n 37)

[53] ibid

[54] ibid

[55] UNCITRAL Working Group II (n 21)

[56] UNCITRAL Convention (n 37)

[57] ibid

[58] Nadja Alexander, Global Trends in Mediation (2nd edn, Kluwer Law International 2006)

[59] Loukas Mistelis, ‘ADR In England and Wales: a Successful Case of Public Private Partnership’ (2003) Academia <https://www.academia.edu/262781/ADR_In_England_and_Wales_a_Successful_Case_of_Public_Private_Partnership > accessed 9 July 2019

[60] Kimberlee Kovach, Mediation Principles and Practice (3rd edn, West Academic Publishing 2004)

[61] ibid

[62] ibid

[63] ibid

[64] ibid

[65] Nadja Alexander (n 58)

[66] ibid

[67] Uniform Mediation Act 2001

[68] Kimberlee Kovach (n 60)

[69] Tania Sourdin, ‘Mediation in the Supreme and County Courts of Victoria’ (2005) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1395550> accessed 9 July 2019

[70] National Alternative Dispute Resolution Advisory Council, ‘A Framework for Standards: Report to the Commonwealth Attorney-General’ (NADRAC, 2001) <https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACpublications.aspx > accessed 9 July 2019

[71] Australian Mediation Association, ‘Australian National Mediator Accreditation Standards’ (AMA, 2019) <https://ama.asn.au/mediator-accreditation/> accessed 14 July 2019

[72] Commission Recommendation on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (2001/310/EC) [2001] OJ L109/56

[73] European e-Justice, ‘European Code of Conduct for Mediators’ (EJ, 2014) <https://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf> accessed 14 July 2019

[74] Directive 2008/52/EC (n 23)

[75] Klaus Hopt and Felix Steffek, Mediation: Principles and Regulation in Comparative Perspective (Oxford University Press 2012)

[76] Helmut Kury and Annette Kuhlmann, Mediation in Germany and Other Western Countries (Vilnius University Press 2016)

[77] Nadja Alexander (n 58)

[78] ibid

[79] ibid

[80] Annie de Roo and Rob Jagtenberg, ‘Mediation in the Netherlands: Past - Present - Future’ (2005) EJCL <https://www.ejcl.org/64/art64-8.pdf> accessed 15 July 2019

[81] Klaus Hopt and Felix Steffek (n 75)

[82] Nadja Alexander (n 58)

[83] ibid

[84] ibid

[85] ibid

[86] ibid

[87] Bruno Zeller and Camilla Andersen, ‘Discerning the Seat of Arbitration – An Example of Judicialisation of Arbitration’ (2015) NLA <https://trove.nla.gov.au/work/207958666?q&versionId=259053281+260611834> accessed 15 July 2019

[88] James Claxton, ‘The Singapore Convention: Mediation in a New York State of Mind’ (2019) SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3416116> accessed 15 July 2019

[89] ibid

[90] ibid

[91] ibid

[92] ibid

[93] ibid

[94] UNCITRAL Model Law 2002 (n 28)