UK is considering adopting the Singapore Convention on Mediation

UK is considering adopting the Singapore Convention on Mediation

Key points:

1. The UK Ministry of Justice is considering adopting the Singapore Convention on Mediation. A consultation paper was issued on 2nd February and responses are due by 1st April 2022 - see https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation
2. The effect of adopting the convention would be to make cross-border commercial settlement agreements concluded through mediation enforceable through the courts of any country which is a signatory.
3. The convention does not cover settlements made in court proceedings, where usually the agreed settlement terms are set out in or scheduled to a consent order, which can then be enforced by the relevant court.
4. In fact settlement agreements reached through mediation are enforceable already as contracts, in accordance with relevant rules regarding contract and private international law. Some have questioned therefore whether the convention provides any incremental enforcement help. And some practitioners view the convention as a solution in search of a problem, given the low level of enforcement activity required regarding mediated agreements.
5. The stated benefits of adopting the convention are:-
   1. It establishes a harmonised and simpler process for enforcement across signatory states;
   2. It may allay the doubts of those who are engaged in cross-border disputes and are reluctant to mediate because of enforcement concerns;
   3. It would reinforce the UK’s reputation as the place to go for first class dispute resolution services (whether through the courts, arbitration or mediation);
      It would raise the profile of mediation and emphasise its growing importance;

Opinion

Although parties to disputes and their advisers may not be experiencing significant problems in enforcing mediated agreements at the moment, it must be a good thing to have a simpler, standardised and harmonised process for enforcement. At a basic level any harmonisation of cross border rules can only help to build commerce and trade, and at the same time contribute to the development of better bi-lateral trust and cooperation between individuals, businesses and states.

However the key question is, where is mediation going over the longer term. The pressure to mediate is only going to increase. In the UK at least sentiment is moving towards compulsory mediation (see https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/ ). The idea of outsourcing justice to the private sector will be attractive to any government, and mediation could be the means by which to achieve that.

On that basis the volume of mediations is likely to increase significantly, and therefore the number of issues arising regarding the enforcement of cross-border settlement agreements, will increase too. Having the convention already in place at that time can only help in the efficient delivery of justice.

17th March 2022

Mike Henley
COMMediate
Email - mikehenley@commediate.co.uk
Web - HTTPS://www.COMMediate.co.uk