The model of the Singapore Mediation Convention essentially declares from the enforcement procedure the place where [the negotiated settlement agreement] could have been concluded. This is done by allowing enforcement in the country of choice of the performing party. This has the added value that it can be useful for the existing and growing electronic mediation process and the freedom that parties to mediation expect to develop solutions that are not related to a particular legal system. This simple mechanism, in our view, is an acknowledgement of the following: (a) a mediation situation is not relevant, or at least not as relevant, as opposed to the situation of a dispute or arbitration; (b) the MSA does not need to have the force of res judicata or enforcement power in the country where it was concluded in order to be executed at international level. This also has a significant impact on the law enforcement process: direct enforcement can be attempted in any country, regardless of the country in which the MSA was obtained. In fact, the [UNCITRAL] working group discussed the issue at length before agreeing on the direct application model. The basic idea is that, given the nature of mediation, the difficulty of locating the state leaving the MSA, and in order to avoid an associated double exequatur procedure [as under the Geneva Convention], direct enforcement would be the appropriate model for MSA.21Meidanis, loc. cit. Note 17, 53-54.X21 (b) The subject matter of the dispute is not amenable to mediation under the law of that Party.
In many quarters, international litigation and arbitration have been described as too costly, too long and too cumbersome.1S.I. Strong, Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Related to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation, p. 27-28 (University of Missouri School of Law Legal Studies Research Paper No. 2014-28, 17 novembre 2014) [im Folgenden Strong, Use and Perception of International Commercial Mediation and Conciliation: Un rapport préliminaire]; siehe auch Bruno Zeller & Leon Trakman, Mediation and Arbitration: The Process of Enforcement, 24 Unif. L. Rev. 449, 465 (2019) (zitiert New South Wales Chief Justice James Spigelman (« L’arbitrage ne répond plus au besoin fondamental des clients commerciaux de résoudre rapidement et efficacement les différends. Wir wenden uns zunehmend anderswo zu, der Mediation und anderen Formen der ADR. »)). X1 In contrast, mediation has been portrayed as a less costly, less combative alternative that allows parties to “save face” 2Fort, utilisation et perception de la médiation et de la conciliation commerciales internationales : rapport préliminaire, loc. cit. Note 16, p. 24.
In addition, the renaissance of mediation can be linked to that of alternative dispute resolution in general. See Haris Meidanis, International Enforcement of Mediated Settlement Agreements: Two and a Half Models – Why and How to Enforce International Mediated Settlement Agreements, 85 Arb. 49, 51 (2019) (« [I]n its core, the ADR renaissance is an expression of the crisis of the national State in the post-modern era. The state monopoly is clearly being called into question, including in the area of dispute resolution, and this is gradually giving mediation an even more important role. »). X2 In addition to the laudatory comments on the Singapore Agreement, why should the effect of the Agreement be that of the UNCITRAL Model Law on International Trade Regulations12UN MODEL LAW on International Trade Regulations (2002), reprinted in 33 UNCITRAL Y.B 615.X12, or the European Union (EU) Directive 2008/52 on Certain Aspects of Mediation in Civil and Commercial Matters (“EU Mediation Directive”)13European Directorate 2008/52 European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, 2008 (L 136) 3 [hereinafter THE EU Mediation Directive]. X13 – none of them had a major impact on the mediation landscape,14Eunice Chua, The Singapore Convention on Mediation – A Brighter Future for Asian Dispute Resolution, Asian J. Int`l L. 1, 4 (2019) (noting that “the Singapore Agreement goes further than the European Mediation Directive (the EU Directive), which has not achieved the expected effect of increased use of mediation in the EU”). X14 despite the hope that they would encourage the use of mediation as a dispute resolution tool in a transnational context.15See id. to 4; see also European Parliament, “Relaunching” the Mediation Directive: assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU, to 162 (2014), available at www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL-JURI_ET(2014)493042 (recalling that `[t]he number of mediations is on average less than 1 % of all cases heard in the EU, about five and a half years after the adoption of the EU Directive). X15 The premise of the Singapore Convention that a treaty as such will make a difference in terms of mediation remedies by the parties has not yet been seen.
He is a member of numerous dispute resolution bodies, including the National Panel of Arbitrators of the American Arbitration Association. He is also on the list of mediation and discovery facilitation committees of several superior courts. While it may be fair to assume that mediations between parties in multiple countries are conducted using virtual communication methods and can already be conducted,23For example, JAMS offers an online mediation product called Endispute, but only for claims of $100,000 or less. Endispute Online Dispute Resolution, JAMS, www.jamsadr.com/endispute.X23 that this is not a reason to “relocate” mediation in such a way that it is stateless, that is, there are or cannot be situs. The reasoning of the UNCITRAL Working Group that the identification of a particular country of origin would be too difficult for a settlement through mediation seemed to be outcome-oriented rather than forced by circumstances. And the argument of a member of the US delegation proposed to support the offshoring approach – that “the mediation process itself does not require the identification of a seat24Schnabel, the Singapore Convention, above the 19th year, at 13-14.X24 – offers a less convincing reasoning. The same applies to the following hypothetical cases: (e) the mediator has violated serious counter-norms that apply to the mediator or mediation, without which that party would not have concluded the settlement agreement; or assuming the matter is settled in mediation, clients should understand that the mediation agreement is a binding contract that can be performed in court and that the parties cannot change their minds later. If a party attempts to evade a mediation agreement, the settlement agreement is likely to be enforced by the court and sanctions may be imposed on the party who attempts to exit the agreement reached during mediation. Sanctions may include attorneys` fees and payment of the full cost of the mediation session, which is usually shared between the parties. In addition, it is not recommended to add new conditions to conciliation after mediation.
If a party wants confidentiality and/or non-disparagement in a settlement and/or release agreement, it is best to ensure that these terms are discussed during the mediation session itself before a final agreement is reached so that everyone is on the same page. In short, the Mediation Convention simplifies the enforcement of settlement agreements resulting from mediation and, once it enters into force in a significant number of jurisdictions, will expand enforcement opportunities and facilitate access to the courts where the relevant assets or transactions are located. The Mediation Convention adds a valuable tool to international dispute settlement tools for cross-border trade. This article examines how international mediation agreements can be applied without the Singapore Agreement on Mediation. .