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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 mediator, author and trainer, and a principal in Holistic Solutions, Inc., an organisation that offers training and consulting in a variety of conflict engagement modes.  Until 2017, he served as the Chief of Staff for the US National Mediation Board and is the Co-Chair of IMI’s Online Dispute Resolution Taskforce



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