The Singapore Convention on Mediation: A game changer and a head start

Note on how to cite this journal:

Author, Date of the post, WMO Conflict Insight, Title of the post,  ISSN: 2628-6998, https://worldmediation.org/conflict-insight 

The United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Mediation Convention was in acceptance of signatures on 7th August 2019. There were 46 countries in total that have signed this pro mediation convention. The United States and China were one of the very first signatories of this convention. The main agenda and focus of this convention is increasing enforceability of settlement agreements that arise by way of mediation. It however, can be safely assumed that the Singapore Convention on Mediation has mirrored the New York convention on arbitration and enforcement of foreign arbitral awards in almost all respects, the only difference remaining the procedures of the two.

It can be rightly pointed out that mediation, as a method of dispute resolution has found a place in the domestic space, while settling commercial and personal disputes. Whereas, in the international sphere the concept is still yet to eclipse other forms of alternate dispute resolution in totality and be accepted as a more amicable, effective and speedy way of settlement of disputes. Broadly, the concept of mediation involves parties who try to settle their dispute with the help of a third party, that is neutral, who acts as a mediator and a bridge between the two disputing parties.  The mediator here has no authority to impose any decision on the parties. However the entire function of a mediator is to help the parties find a common ground and settle likewise.

One observes that the Singapore Convention on Mediation is a consequential step towards the enforcement of settlement of disputes made by the way of mediation. Apart from domestic laws, the convention aims to allow for mediation to rise up to an international level with guided norms and rules as mentioned in the convention. The entire idea of the convention at hand is to allow for cross border mediation while settling disputes inter nations as per the rules mentioned. It gives mediation a larger legitimacy and finality, thereby, standing out as a novel, legitimised and guided way of dispute resolution. The convention aims to clear the grounds and make way for easy enforceability of the settlement, by making the mediated settlement agreements directly enforceable by the Courts of all the parties to the convention. Not only this puts mediation on a high horse, but it allows for it to have legitimacy along with its counterparts such as litigation and arbitration.

There are several ideas about the said convention, however, the important one is that this convention is a mighty game changer when it comes to bringing mediation to the forefront of all other methods of dispute resolution. Coming to the present ground of mediation in the Indian Legal System, it can be rightly pointed out that there is no standalone legislation for mediation at place at the moment. However, there are several provisions under which mediation has made a legitimate appearance, but however, due to its cost efficiency, efficacy and speed, mediation does deserve to have a legislation and norms and guidelines of its own by now.

On the face of it, it can be stated that it is very unlikely for the disputing parties not to comply with the settlements came up through mediation as in the process of mediation, the parties themselves have worked through and taken time and effort to arrive on a common ground. The Singapore Convention, apart from laying down guidelines for the procedural aspect of mediation, will lend mediation a space for certainty, legitimacy and a framework for enforcement.

Key takeaways from the Convention

The definition of mediation is described in clear words under Article 2(3), ““Mediation” means a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the dispute.”

It is clearly mentioned under Article 2 that the mediator does not have the power to impose anything on the parties, thus making the entire process extremely party friendly and informal.

There are therefore, very limited grounds for refusing to granting relief of the parties. However, the same tale of “public policy” is still in the picture like in International Commercial Arbitration under UNCTIRAL and the New York Convention. Till date, public policy has been the biggest hindrance towards the enforcement of international awards with respect to arbitration, and this treaty has conveniently repeated the old tale over again by inserting public policy as valid ground.

Other than the aforementioned, the other grounds pertain to the inadequacies in the settlement agreement and whether the laws of the authorities of the parties are applicable to the settlements.

A very flexible idea in the convention is the idea of reservations. The ratifying and signing countries can make reservations as per their needs. Sometimes it is so that the countries’ laws may now allow for certain provisions in their domestic laws. Hence that is why the idea of reservations allows the convention to be signed by majority of the countries given the fact that they can be persistent and subsequent objectors in the same.

The most unique feature in this convention, some may call it even a drawback, is the fact that “family and household” matters a variedly excluded. This convention will only apply to commercial disputes and trade disputes, but personal and family matters are totally discounted and disregarded. Many may say that it is a ploy to allow those countries to sign the convention who do not allow any external laws dictate their personal matters. One might ponder how this treaty will survive with such exclusion, only time will tell.

India’s take on Mediation

When it comes to India, the concept of mediation is not a newfound space at all. Although it can be correctly pointed out that India might be lagging behind in terms of bringing in a standalone legislation addressing purely mediation, its techniques, rules and guidelines, but when it comes to the usage of mediation while resolving disputes, India has unanimously resorted to the aforementioned mechanism to resolve complex matters. The most recent and relevant instance in this regard would be the Ayodhya dispute without a second thought. After almost many decades of litigation and court involvement, the Supreme Court has finally passed on the matter to Mediation. Mediation is known to solve matters with ease since the disputing parties have more control over their cases rather than a common deciding adjudicator. Here, there is no adjudicator and there is particularly no one making a decision on behalf of the parties. Mediation is purely peace talks between the disputing parties and the parties hold sole control over what way they settle by themselves.

In a process where the parties have taken so much effort and time to settle and find a middle ground, it is very that they would want to shove that aside and follow a different trail afterwards. Here, the parties’ underlying wants and needs are brought into light and matters are settled on those lines.

In India, one of the first efforts to inculcate mediation into our domestic legislations has been made by the Industrial Disputes Act, 1947. Later in the year 1999, the Civil Procedure Code was passed by the Parliament, under which Section 89 calls for settlement of matters through methods of ADR. In addition to that, the Civil Procedure- Mediation Rules, 2003 provides for mandatory mediation under r. 5(f)(iii). The aforementioned provisions are the earliest efforts made to include mediation into the Indian Legal Scenario, before mediation started appearing in other statutes such as the Companies Act, etc.

Why should India aim to ratify the Singapore Convention?

As things stand, Mediation as of now has not been able to establish a firm and stable space for itself as far as domestic laws are concerned. As mentioned several times before, mediation does not have a standalone legislation of its own as of now. Despite being a more cost effective, party friendly, amicable, flexible and overall effective process, a legislation to guide this entire process is absent within our domestic laws. The Convention will not only allow the country to practice mediation in a whole new light with its most needed legislative backing, but also allow for mediation to find its ground as far as its enforceability is concerned. It will also enable the other form of dispute resolution take a backseat while mediation resolves the pending disputes and backlogs.

India certainly stands benefitted from the convention as the convention will also promote international trade between India and other countries, thus boosting the Indian economy in manifold. The convention can be a guiding book for the commercial mediation in India. Apart from that, the concept and practice of mediation will be well known to the Indians. Mediation is now a foreign territory to most of the states in India, and it has to be considered especially in those under developed states in order to clear the never ending backlog of cases.

It is shocking to realise that in the US, most cases get resolved prior to litigation. Mediation is a pre litigation condition, and the cases where mediation fails, those cases go to the court, which is a very less number. Mediation has been largely undermined in India so far with no legislations and very little haphazard provisions here and there. Given the correct laws and chance, mediation can certainly prove to be a goldmine when it comes to resolving conflicts in India. It can, like in the US, solve matters and disputes before even they go for litigation. Our country is on the fast track of development and the time litigation takes to sort out trivial matters is totally uncalled for. It would be best for the economy and the country to solve issues which are greater and more consequential, than let’s state, a divorce or custody.

To engrain mediation in the minds of the people, the country should first aim to familiarise the members of judiciary and allow them to know and learn and get trained about the process and procedure of mediation. The judges have to be trained as to what cases are relevant for mediation and what cases to refer to mediation. The first and foremost idea of mediation is that, the judge, and the parties must trust its process and the mediator. This will enable the mediator to find a common ground faster than every other manner of dispute resolution. This will not only enable one to grasp mediation as a concept, but trust it at the same time. Mediation is quick, non adversarial and effective and those benefits cannot be discounted when considering giving it a firm stand in the Indian legal system.

One can state umpteen reasons as to why the convention should be ratified and a domestic legislation should be put in place. The reasons can be legal, social, economical and developmental. However, the most important reason are the array of advantages mediation poses for the country overall.

One might concur that the said convention is giving India a much needed head start in the arena of mediation in the absence of a proper legislation. In addition to that, there are yet many unexplored and unfathomed areas of law where mediation will resolve disputes faster than any other means of dispute resolution and that can only be deduced if mediation is given its well deserved chance to thrive and grow within the Indian legal system. One cannot bet on whether mediation will be given its well deserved space within the domestic laws, but if the said convention is duly ratified, it is going to be a game changer.

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