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<xTITLE>Thoughts on the Singapore Convention</xTITLE>

Thoughts on the Singapore Convention

by Daniel Rainey
December 2019 Daniel  Rainey

As Alberto Elisavetsky and Maria Victoria Marun noted in a November 4, 2019, posting in Mediate.com, on August 6, 2019, the Singapore Convention on Mediation was announced.  The Singapore Convention parallels the New York Convention for Arbitration by legitimizing mediation as a dispute resolution method for international commercial transactions. 

Alberto and Maria Victoria make the argument that there is a need for interdisciplinary training and practice for mediators who work in international venues – a sentiment I heartily endorse.  And , the Singapore Convention , on its surface, seems to address the twin barriers to the use of mediation in international agreements:  uncertainty about the process, and enforceability.  But we shouldn’t get too carried away with assumptions about how revolutionary the Convention will be just yet.

There are problems with the Convention’s approach to uncertainty and enforceability.

The text of the Convention addresses both issues in Article 5, addressing the enforceability of mediation settlements by referring to the application of “mediation standards.”  The immediate problem is that the Convention does not define any standards.

The lack of standards for mediation across cultures and national borders has led to a kaleidoscopic landscape of mediation styles and norms, which in turn creates the uncertainty mentioned above. Unlike legal or arbitral proceedings, mediation practice can vary greatly based on nationality, legal setting, culture, or mediator preference.  As Manon Schonewille and Jeremy Lack argue:

        It is difficult to extract any clear standards of processes for mediation when two parties come from different jurisdictions, especially when the expectations, styles and approaches to mediation vary greatly from country to country.[1]

Both expectation and enforcement rely on these undefined standards.  The Convention addresses enforceability by declaring that mediation agreements can be set aside by judges in the event that

        .  .  .  there was a serious breach by the mediator of standards applicable to the mediator or the mediation without which breach that party would not have entered into the settlement agreement.[2]

So, we would look for a serious breach of mediator standards as a reason for setting aside a mediation settlement, but the question remains, “a serious breach of what standards?”

It is possible that guidance from sources outside the Convention can be helpful, but again we should not get our hopes up prematurely.

For example, the UN rules on conciliation are not helpful.  The rules state that:

      The conciliator may conduct the conciliation proceedings in such a manner as he [or, we would hope, she] considers appropriate .  .  .  .[3]

Further guidance from the UN rules states that:

     The conciliator will be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.[4]

Objectivity, fairness, and justice are all concepts that can be interpreted radically differently depending upon the cultural and legal venue from which one views them.

So, is the Singapore Convention useless?  Of course not, but it is flawed.  Ana, Francois, and I have begun work on a proposal to produce an addendum to the Convention that would begin to address both process expectations and enforceability. 

As they say, “watch this space.”

 ENDNOTES

[1] Mediation in the European Union and Abroad: 60 States Divided by a Common Word? Chapter 2 by Manon Schonewille1 and Jeremy Lack  in: The Variegated Landscape of Mediation.  A Comparative Study of Mediation Regulation and Practices in Europe and the World, Manon Schonewille and Dr Fred Schonewille (eds.), 2014 The Hague: Eleven International Publishing.

[2] United Nations Convention on International Settlement Agreements Resulting from Mediation, Article 5 (e).

[3] UNCITRAL Conciliation Rules, Article 7 (3).

[4] UNCITRAL Conciliation Rules, Article 7 (2).

Biography


Daniel Rainey is a principal in Holistic Solutions, Inc. (HSI ), and he is currently a Fellow of the National Center for Technology and Dispute Resolution, a member of the Board of Directors for the InternetBar.Org, a member of the Board of Directors and Treasurer for the Northern Virginia Mediation Service, and a founding member and founding Board Member of the International Council for Online Dispute Resolution (ICODR). He is a member of the editorial board for Conflict Resolution Quarterly, and he is one of the Editors-in-Chief of the International Journal of Online Dispute Resolution. He is an author/editor of the award-winning book, Online Dispute Resolution Theory and Practice, and numerous other book chapters and articles about ODR and ADR. In addition, he is a member of the Supreme Court of Virginia’s Access to Justice Commission, Self-Represented Litigants Committee, and he has been the co-chair of the International Mediation Institute Task Force on E-Mediator Competencies. As a member of the Ethics Committee of the Association for Conflict Resolution, he led a review of the ACR/ABA/AAA Model Rules for Mediators, and he participated as a member of the National Center for State Courts ODR Standards Working Group. In October, 2017, at the Association for Conflict Resolution annual conference, he received the Mary Parker Follett award for innovation in dispute resolution.



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