The United Nations Convention on International Settlement Agreements Resulting from Mediation (hereinafter “Singapore Convention on Mediation”) that was signed in August 2019, surprisingly, does not enumerate the standards that are applicable to the mediators. In this article, I will highlight the issue emerging from the omission in Article 5(1)(e) of the Singapore Convention on Mediation.
Article 5(1)(e) of the Singapore Convention on Mediation
Article 4 of the Singapore Convention on Mediation titled “Requirements for reliance on settlement agreements” states that a party that is relying upon the mediated settlement has to prove to the competent authority where they are seeking relief (has to be party to the Convention) that the settlement agreement is signed and it has resulted from mediation. Under Article 4(1)(b) it lists the ways in which it can be proved that the settlement agreement has resulted from mediation.
Article 5 of the Singapore Convention on Mediation titled “Grounds for refusing to grant relief” states that the competent authority under Article 4 may refuse to grant relief on request of the party against whom the relief is sought if the party can prove the grounds listed. As per Article 5(1)(e), the competent authority may refuse to grant relief if there was a “serious breach” by the mediator of the “standards applicable” to the mediator. Article 5(1)(e) reads as follows: “(e) 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; or”.
The issue arises in Article 5(1)(e) as there is no mention of the standards that are applicable to the mediators. The Convention is silent on these standards. The travaux préparatoires for Article 5 highlights that initially a suggestion was made to replace “standards” with “requirements”. This suggestion was not accepted as the Working Group wanted to keep it at “standards” as it gives freedom to the competent authority of the country to apply code of conduct that is developed by professional associations. The professional associations across the world may have a different set of standards governing the conduct of the mediator, and this provision gives them the freedom to apply standards recognised in that region. The suggestion of providing examples to the kind of standards in the Convention was not accepted as the kinds of standards applicable may vary over time.
The Concern with the omission in Article 5(1)(e)
The Singapore Convention on Mediation should have mentioned the standards that apply to the conduct of mediators. This was the opportunity to ensure that basic principles surrounding the practice of mediation are recognised in the Convention. This would have also ensured that such standards would receive global recognition. Now it is very much possible that such “standards” may vary from country to country. Even though this might recognise the domestic practices in countries, it doesn’t lead to the creation of uniform set of standards. There is a high likelihood that a standard governing the conduct of a mediator in country A is not considered to be a standard in country B. This gives rise to a multitude of standards that govern the conduct of mediators globally.
If no standards exists at the time of the mediation then what metric will the Courts utilize while deciding a challenge concerning the enforcement of mediated settlement agreement due to mediator misconduct? Will the courts apply standards retrospectively when no standards were applicable at the time of the mediation? These are some important questions that need to be answered.
Moreover, when the enforcement of the mediated settlement agreement is challenged on the basis of misconduct by the mediator, the whole mediation process will be scrutinized. This will have a direct bearing on the confidentiality of the mediation process as the misconduct of the mediator is examined. Not knowing the standards against which the misconduct of the mediator is examined, will open the doors for Courts to set multitude of standards around the world. This will have a direct bearing not only on the mediator but also on the mediation process.
Again, this was an opportunity that should have been capitalized upon. Even though the importance of recognizing regional standards and practices applicable to the mediator and the mediation process cannot be undermined, the opportunity to create globally recognised standards does not come very often. Taking cue from the field of arbitration, it is well recognised that the arbitrator is expected to disclose incidents that give rise to “justifiable doubts” as to arbitrator’s “impartiality” and “independence”. This requirement has become a uniform standard that has been recognised by arbitral institutions around the world as arbitrators are expected to be “independent” and “impartial”.
As no standards are mentioned in the text of the Singapore Convention on Mediation, this gives the enforcement authorities the freedom to refuse enforcement of mediated settlement agreements on a variety of grounds which would elongate and hamper the process of enforcement. An illustrative list of standards should have been provided for the purpose of guiding the enforcing authorities. Standards such as “independence”, “impartial” and “fair treatment” as indicated in the travaux préparatoires could have been included. Now it remains to be seen how the enforcing authorities deal with “standards applicable” in Article 5(1)(e).