The Singapore convention on mediation to reinforce the status of international mediated settlement agreement: Breakthrough or redundancy?

• Published date: 01 May 2023
• Author: David Tan
• Date: 01 May 2023
• DOI: http://doi.org/10.1002/crq.21377

REVIEW ARTICLE

The Singapore convention on mediation to

reinforce the status of international mediated

settlement agreement: Breakthrough or

redundancy?

David Tan

1,2,3

1

Faculty of Law, Batam International

University, Batam, Indonesia

2

School of Law, Pelita Harapan

University, Tangerang, Indonesia

3

The Dickson Poon School of Law, King's

College London, London, UK

Correspondence

David Tan, Faculty of Law, Batam

International University, Jl. Gajah Mada,

Baloi –Sei Ladi, 29442 Batam, Indonesia.

Email: david.tan@uib.ac.id

Abstract

Mediation is a type of alternative dispute resolution

(ADR) in which an impartial third party facilitates a

voluntary negotiation. It is sometimes more desirable

than traditional litigation or arbitration because of its

timeliness, affordability, and tendency to preserve the

disputant's relationship. Despite these advantages,

global commercial mediation has traditionally suf-

fered from one significant flaw: the difficulty for inter-

national mediated settlement agreements (iMSAs) to

be enforced. The UN Convention on International Set-

tlement Agreem ents Resulting f rom Mediation (t he

Singapore Convention on Mediation or SCM) aims to

address this issue by establishing a process that makes

iMSAs ipso facto enforceable.Whilethisisadesirable

and long-awaited development for mediation, this

article will argue that the convention will not disrupt

the present ADR market, but it may potentially com-

pete with hybrid ADR—like the Arb-Med-Arb, at least

until the SCM obtains wider recognition. The SCM

should also have addressed the enforceability of both

iMSAs and agreements to mediate, rather than just

that of merely the former.

Received: 25 October 2021 Revised: 27 January 2023 Accepted: 27 February 2023

DOI: 10.1002/crq.21377

Conflict Resolution Quarterly. 2023;40:467–482. wileyonlinelibrary.com/journal/crq © 2023 Wiley Periodicals LLC. 467

1|INTRODUCTION

Throughout human history, the practice of mediation, in principle if not in name, is ubiquitous

(Nelson, 2020). In a nutshell, mediation is an assisted negotiation. It is “negotiation aided by a

trustworthy and reliable neutral third party, providing a safe haven for disputants to resolve

their dispute away from the court system”(Nolan-Haley, 2012). The mediator's independence,

objectivity, and impartiality are critical to dispute resolution (Zeller & Trakman, 2019). The

most salient characteristic of mediation is that the mediators serve as a neutral third party who

assist the conflicting parties in achieving an understanding and reaching a mutually acceptable

compromise of their disagreement, or, at the very minimum, reaching an agreement that both

disputants can live with (Stipanowich, 2021). The mediator, dissimilar to a judge or an arbitra-

tor, is not really a decision-maker or adjudicator. While mediation may be ordered by the court

of law or as part of a legal proceeding (court-annexed mediation), it is almost always—and very

much in spirit—a consensual activity, and thus unrestricted by strict and rigid legal rules

(Stipanowich & Lamare, 2014).

Mediation is non-binding by nature, and every settlement agreement must be based on con-

sent among the disputing parties. As a consequence, it is reasonable to expect that the acknowl-

edgment and inevitable enforcement of settlement agreements are less of a concern. In addition,

the enforcement of settlement agreements is not often a major problem. However, strengthening

the enforcement of settlement agreements well beyond the stature of a simple contract is likely to

give parties a strong incentive to agree on a settlement. This is particularly true in international

situations since parties are less likely to file a lawsuit for breach of an international settlement

agreement and risk having to re-litigate the merits of the case. Acknowledgement of international

settlement agreements may thus be a critical component in encouraging amicable resolution pro-

cess from a policy standpoint (Treichl, 2020). In addition, an international mediated settlement

agreement (iMSA) will only be binding if the disputing parties commit the conditions of the reso-

lution into binding form, such as a contract. Admittedly, mediation has the potential to be a tech-

nique of dispute settlement. However, when a more enforceable and final instrument is desired,

mediation does not claim—nor should it claim—to provide these solutions, yet iMSAs may

enable the disputing parties to short-circuit it and obtain settlement far more swiftly and at a

lesser cost of advancing to a trial or arbitral proceeding.

The demand for enforceability is believed to be particularly serious in international media-

tion when parties from different backgrounds and jurisdictions may not possess a long-standing

or strong mutual trust. The unpredictability and transactional cost of settling an international

conflict using mediation is exacerbated by difficulties in the enforcement of iMSAs (Lo, 2014).

For such reasons, most proponents of international mediation regard enforceability as a key

component that might have a substantial influence on the utilization of international media-

tion. A great number of empirical studies back this claim. Delegates were surveyed about areas

that would most enhance business dispute settlement in the Global Pound Conference Survey,

which took place from 2016 to 2017. The adoption of laws or treaties that encourage acknowl-

edgment and execution of settlements, such as those achieved through mediation, was by far

the most popular choice (51%) (Herbert Smith Freehills et al., 2018). In a 2016 poll performed

by Stacie Strong, iMSAs were regarded to be much more difficult to enforce than domestic

MSAs (Strong, 2016). When inquired as to if they thought the presence of such an international

treaty regarding the enforcement of dispute settlement agreement resulting out of international

mediation would persuade parties in the respondent's home jurisdiction to utilize mediation,

74% of those surveyed responded positively (Strong, 2016).

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