A matter of interpretation? Understanding and applying mediation standards for the cross‐border enforcement of mediated settlement agreements

• Published date: 01 December 2020
• Author: Dorcas Quek Anderson
• Date: 01 December 2020
• DOI: http://doi.org/10.1002/crq.21285

RESEARCH ARTICLE

A matter of interpretation? Understanding

and applying mediation standards for the

cross-border enforcement of mediated

settlement agreements

Dorcas Quek Anderson

School of Law, Singapore Management

University, Singapore, Singapore

Correspondence

Assistant Professor Dorcas Quek

Anderson, Singapore Management

University School of Law, 55 Armenian

Street, Singapore 179943.

Email: dorcasquek@smu.edu.sg

Correspondence

Dorcas Quek Anderson, Singapore

Management University School of Law,

55 Armenian Street, Singapore 179943.

Email: dorcasquek@smu.edu.sg

Abstract

This article focuses on the future role to be played by

mediation standards in view of the signing of the Singa-

pore Convention on Mediation. It argues that the con-

vention has elevated the standing of mediation

standards from soft regulatory codes to quasi-legal gro-

unds impacting the enforcement of mediated settle-

ments. However, the inherently generalized nature of

mediation standards does not render them amenable to

contextualized interpretation. More significantly, the

courts may adopt the wrong frame when construing

mediation standards. It is therefore imperative that the

mediation community find ways to bridge frames and

facilitate the cross-border understanding of standards.

1|INTRODUCTION

In late 2018, the United Nations General Assembly passed a resolution to adopt the UN Con-

vention on International Settlement Agreements Resulting from Mediation and to make

corresponding amendments to the Model Law on International Commercial Conciliation

(A/Res.73/198). This development is the culmination of several years of work by the UN Com-

mission on International Trade Law (“UNCITRAL”) to create a multilateral instrument facili-

tating the cross-border enforcement of mediated settlement agreements. The convention was

named the Singapore Convention on Mediation when it was signed by 46 countries on August

7, 2019. Six additional countries have signed the convention, bringing the total number of signa-

tories to 52 (Tham, 2019; UNCITRAL, 2020). The convention will enter into force on September

12, 2020 (United Nations, 2020).

Received: 5 February 2020 Revised: 21 July 2020 Accepted: 22 July 2020

DOI: 10.1002/crq.21285

Conflict Resolution Quarterly. 2020;38:27–45. wileyonlinelibrary.com/journal/crq © 2020 Wiley Periodicals LLC 27

The Singapore Convention on Mediation (“Singapore Convention”) is meant to achieve for

mediation what the Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (“New York Convention”) has done for international arbitration. The widespread sup-

port of the New York Convention—starting from 10 states in 1958 and increasing to the current

number of 161 states—attests to the popularity of arbitration as a mode of dispute resolution.

By comparison, the high level of preliminary support for the Singapore Convention within

merely a few months attests to the common sentiment across the globe on the need for a uni-

form enforcement regime for mediation, and the desire to place the mediation process on equal

standing with arbitration in terms of competitive advantages (Strong, 2016; UNCITRAL,

2015a). More importantly, it reflects the substantial growth of mediation that has fueled inter-

national efforts to develop a harmonized legal framework to support agreements resulting from

mediation.

Although the Singapore Convention drew inspiration from the New York Convention, the

corresponding grounds for non-enforcement of the mediated settlement must necessarily reflect

the distinctive features of the mediation process. In this regard, a contracting state is allowed to

decline enforcement in the event of a “serious breach…of standards applicable to the mediator

or mediation”(article 5(1)(e)). This article focuses on the future role to be played by domestic

and international mediation standards in view of this provision, and the challenges arising from

interpreting standards across different perspectives. It will be argued that the provision has

effectively endowed mediation standards with an unprecedented level of significance. The

standing of these mediation standards has been strengthened from soft regulatory codes that

were previously connected only with disciplinary action of mediators to quasi-legal grounds

impacting the enforcement of mediated settlements. Given the critical function accorded to

mediation standards, it is imperative to facilitate an accurate and context-specific understanding

of mediation standards so as to ensure the sound application of the Singapore Convention

across different countries.

The discussion will be done in four sections. First, the role of the mediation standards will

be examined in light of the grounds for non-enforcement in the Singapore Convention. It is

argued that the relevant standards that apply to the mediation will assume much greater promi-

nence than domestic mediation requirements in the state where mediation takes place or in the

state deciding on enforcement. This development, coupled with how mediation standards now

directly impinge on the enforceability of a mediated settlement, will result in greater signifi-

cance being assumed by mediation standards in the future. The next section examines the

nature of mediation standards. It will be demonstrated that the inherently generalized nature of

codes of ethics and the inability to consider different contexts render them less amenable than

legal rules to sound interpretation.

The third section discusses an additional difficulty in interpreting standards—the plethora

of frames that could be adopted by the courts. Mediation standards may be construed according

to the “adjudication”,“arbitration”,“default mediation tradition”and “international media-

tion”frames, leading to misapprehension of the relevant mediation standards. The fourth

section explores the “default mediation tradition”frame in greater detail, illustrating how the

principle of self-determination could be understood differently under the Singapore and

Australian mediation standards. The final section proposes ways to assist the courts to bridge

the plurality of frames so as to help them accurately situate the interpretation of mediation

standards in the relevant context. A failure to do so potentially leads to the courts' misinterpre-

tation of well-established mediation standards, and the mediation profession falling into disre-

pute based on misguided application of mediation standards.

28 QUEK ANDERSON