The Singapore Mediation Convention: An American Perspective

The Singapore Mediation Convention represents a continuation of the U.S. acceptance of diverse means of alternative dispute resolution. Mediation is encouraged both privately and by the courts. What has been lacking is a harmonization of mechanisms for cross-border mediation. This article explores the background of mediation in the United States and the impact and importance of ratification of the Singapore Mediation Convention by the United States.

I. Brief Background to Mediation

When we speak of mediation, we mean a non-binding process by which two or more parties avail themselves of a neutral third party to attempt to facilitate a settlement of the dispute. Mediation in the United States has come of age. While we can trace its roots to Biblical times and recall the famed incident of King Solomon ordering that the baby be split to resolve the competing demands of motherhood (which phrase is often still used in cynically describing mediated and arbitrated results), it did not really take off in general litigation practice in the United States until the latter decades of the 20 th century. While it had been used perhaps more frequently in labor and employment settings, by 2001, a Uniform Mediation Act was promulgated by the Uniform Law Commission in the United States, with amendments approved in 2003. Some thirteen states have now adopted a version of this Act. Concerns about the mediation process generally revolve around the need for confidentiality and inconsistent methodology across the states. The Uniform Law Commission found that there were over 2,500 state statutes that addressed various aspects of mediation in various contexts, which justified the need for a uniform approach. That approach resulted in a model law that states could adopt which provided for confidentiality of communications with the mediator and throughout the process. Generally, with certain exceptions, mediation communications are afforded a privileged status, subject to waiver under certain conditions. Confidentiality is imposed on the communications as agreed upon by the parties6 .

Mediation has become prominent in a large number of federal district courts in the United States, which includes mediation or other forms of alternative dispute resolution, and similarly, state courts also have programs that, subject to exception or opt-out under particular circumstances, also require mediation. Given the fact that most civil cases never get to trial and settle (estimates vary; often it is heard that 95% or higher of cases settle), mediation has become far more acceptable, particularly when the parties are sophisticated and want to settle, but cannot get past certain issues.

6. The full text and comments to the uniform law may be found at file:///C:/Users/SRichman/Downloads/UMA_Final%20Act_2003.pdf.

Mediation has been resisted in some quarters on various bases – it was not binding, so there was no incentive for parties to be serious, it usurped the role of the courts, and so forth – but those objections are not as prevalent. The major alternative dispute resolution regimes that administer arbitration also have mediation programs. Courts have lists of approved mediators. It is also not uncommon for the parties themselves to agree upon a mediator.

Mediated resolutions may be embodied in a confidential settlement agreement, or in a court order that makes public the terms but also has the effect of a court order. They are enforceable (or not) under basic principles of contract law with the added note that public policy favors enforcement of settlement agreements, although there is disagreement among jurisdictions as to enforcement or not of oral agreements and what actually may constitute a “writing” in the settlement or mediated context.7 At least one state,

Colorado, enacted an International Dispute Resolution Act8 in 1993 that provides for certain expedited procedures for enforcement of applicable mediated agreements.

II. International Mediation Agreements

Consider, then, this simplified situation. A written settlement agreement between an American and French company resolves a dispute prior to litigation or arbitration. The American company breaches. The French company sues on the document in France and obtains a monetary award. The French company could not presently avail itself of any treaty enforcing and recognizing that French judgment in the United States. Under statutes available in most states in the United States, a final money judgment could be domesticated in a state and become subject to execution and other collection efforts, subject to certain exceptions. However, if that same agreement were litigated in the United States, that American judgment would not be automatically enforceable in France.

In order to avoid having to deal with domestication of foreign judgments (which are the subject of a separately promulgated treaty by the Hague Conference 9 ), or otherwise commencing a new suit or arbitration to enforce a mediated settlement agreement, and to provide an incentive for voluntary mediation and resolution of disputes, the “Singapore Mediation Convention” was promulgated.

8. Colo. Rev. Stat. §§ 13-22-501 – 13-22-507.

9. Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Mattershttps://www.hcch.net/ en/instruments/conventions/full-text/?cid=137. See also Convention of 30 June 2005 on Choice of Court Agreements, https://www.hcch.net/ en/instruments/conventions/full-text/?cid=98.

On 7 August 2019, forty-six countries, including the United States, signed the Convention, more formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation. It provides essentially the mechanism for enforcement of qualifying agreements without having to obtain the judgment. As noted above, more countries have now signed and ten countries have ratified, acceded, approved, accepted, or succeeded to the Convention. Though the United States has signed, it has not yet ratified.

The Singapore Mediation Convention requires that the mediated agreement resulting from mediation of a commercial (as opposed to consumer) dispute be confirmed in writing. The commercial parties must have their places of business in different signatory countries. However, even if both parties are in the same country, the Convention will still apply if a substantial part of the obligation is performed in a different country or a different country is more closely connected with the subject matter. The local nomenclature is irrelevant; whatever it is called, mediation is defined as “a process whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (‘the mediator’) who lacks authority to impose a resolution upon the parties.” The enforcement mechanism is that each signatory nation must enforce such a mediated agreement that satisfies the Convention’s mandatory criteria in Article 4. This means the document must (1) be signed by the parties, (2) have resulted from mediation, and (3) be signed by the mediator, who must also confirm the mediation was carried out, or the institute administering it attests to it, or otherwise, there must be “other evidence acceptable to the competent authority.”

Article 5 provides discretionary factors for denying relief. These are (1) incapacity by one of the settling parties, (2) the settlement agreement is null and void, inoperable or incapable of performance under the applicable law, is not binding or final under its terms, or has been later modified, (3) the obligations have been performed or are not clear or comprehensible, (4) granting the relief would be contrary to the mediated agreement itself, (5) the mediator seriously breached applicable standards, or (6) the mediator’s impartiality was compromised due to a failure to disclose circumstances having a material impact or undue influence. In addition to these discretionary factors, a country where enforcement is sought may further decline to grant relief on the basis of its public policy or the dispute could not have been settled by mediation under its laws.

III. Reception in the United States

In February 2020, the American Bar Association (ABA) endorsed the Singapore Mediation Convention officially by act of its House of Delegates. This position was communicated on 5 October 2021 to the American Secretary of State by the ABA President. Among the points made in the letter were the Convention’s important role in helping “promote the greater use of mediation and negotiated settlements as an efficient, cost-effective means of resolving international commercial disputes while preserving important business and personal relationships.”10

Notably, a survey in 2017 by the International Mediation Institute and the New Jersey City University’s Institute for Dispute Resolution found that 84% of respondents would be more likely to use mediation in international contexts if there were a comparable mechanism like the New York Convention for arbitration awards.11

While there have been questions as to some of the practical details or its efficacy in some quarters, the support of the ABA’s endorsement attests to a broad level of support across the country’s different practice areas and constituencies in the legal community. Issues of implementation in the federal system of the United States are under review. The Convention will need to be presented to the United States Senate for advice and consent, and assuming that occurs, to the President of the United States for ratification. It will then become the “supreme law of the land” under the United States Constitution.

IV. Conclusion

The Singapore Mediation Convention is a positive step towards harmonization of private international law regarding dispute resolution and follows in the philosophical footsteps of the New York Convention on Arbitration. In the United States, questions as to the implementation of the Singapore Mediation Convention in the federal system and the respective roles of state and federal law have been resolved. That said, the goal remains the same: a well-understood and harmonized mechanism to facilitate cross-border mediation and to encourage the same. ■

Steven M. RICHMAN Lawyer, Clark Hill PLC English Language Deputy Editor,

Juriste International Princeton, NJ, USA srichman@clarkhill.com

10. Web reference to be provided. This footnote to be supplemented. For an overview of the Convention and resolution of various of the concerns, as well as discussion of recognition and enforcement issues by a member of the United States negotiating team, see Schnabel, T., The Singapore Convention on Mediation: A Framework for the Cross Border Recognition and Enforcement of Mediated Settlements, 19 Pepperdine Dispute Resolution Law Journal 1 (May 2019), available at https://digitalcommons. pepperdine.edu/cgi/viewcontent.cgi?article=1424&context=drlj.

11. “Report on International Mediation and Enforcement Mechanisms,” https://imimediation.org/research/surveys/survey-enforceability-mediated-settlement/.