2021 was quite a year for Alternative Dispute Resolution (ADR) in this jurisdiction. A report was issued by the Civil Justice Council in July 2021 which concluded that ADR could in principle be made compulsory in England and Wales.
There was also news last month that a High Court Master made what may be the first ever compulsory ADR order in this jurisdiction. In light of that and the fact that almost two years have passed since Catherine Penny and Rebecca Hunt introduced the Singapore Convention on Mediation (the Convention), an update on the status of the Convention and a more detailed comment on its text is timely.
Developments since February 2020
Since February 2020, the Convention has gained two signatories in Brazil and Australia, who signed in June and September 2021 respectively. It has also been ratified by eight states and come into force in six. Qualifying settlement agreements can therefore now be enforced through the Convention in Singapore, Fiji, Qatar, Saudi Arabia, Belarus and Ecuador. The Convention comes into force in Honduras and Turkey in March and April this year respectively.
However, some significant developed economies remain notably absent from the list of signatories and the UK is among them. Robert Buckland MP, then Lord Chancellor, said of signing the Convention in a speech given at London International Disputes Week in May 2021, that the government’s “current thinking [was] that doing so could help us to maintain London and the UK as an attractive Disputes Resolution hub, and, more generally, would promote international mediation.” He continued to say that the government would be beginning a public consultation on the Convention. That consultation is yet to commence, but if the government’s thinking remains the same, it may well materialise soon.
Accordingly, whilst the Convention has now come into force in a few countries it remains very much in its infancy. The Convention’s first signatories admittedly signed the document only in August 2019 and many states might quite properly point to the coronavirus pandemic as their priority since March 2020. Even so, the inescapable fact remains that the Convention’s reach is presently limited.
The text of the Convention
The Convention applies only to disputes that are genuinely international. An international commercial dispute is defined by the Convention in two ways:
- As a dispute where at least two parties have their place of business in different states;
- The state in which the parties have their places of business is different either from the state where a large part of the obligations under the settlement agreement are to be performed, or the state with which the dispute’s subject matter is most closely connected.
Consumer disputes, and those regarding family, inheritance and employment law are all specifically excluded from the Convention.
Commendably, the Convention states that applications for enforcement should be dealt with expeditiously. However, a settlement agreement must meet a number of requirements to be enforced under the Convention. Most notably, the party seeking to rely on a settlement agreement under the Convention must have evidence that the settlement agreement resulted from mediation. Three possible pieces of evidence are cited as examples, none of which are provided as standard in this jurisdiction. The final example (“any other evidence acceptable to the competent authority [i.e. the state in question]”) would naturally require advice relating to each jurisdiction in which enforcement is contemplated. In fact, the Convention specifically states that the settlement agreement in question shall be enforced by signatories “in accordance with its own rules of procedure”. This is another area on which litigants will need specific advice.
Finally, it is notable that the Convention allows signatories to declare that it does not apply to settlement agreements to which they, their agencies or a person acting on their behalf are parties. States can also stipulate that the Convention applies only where parties to the settlement agreement in question have agreed that the Convention applies.
The Convention’s lack of progress in terms of signatories and ratifications is unsurprising in a world dominated by concerns regarding Covid-19. As those concerns abate, the number of signatories and ratifications will almost certainly grow. The on-going issue of Brexit may delay the EU and the UK’s signing further, but their signatures will likely follow in time. There has also yet to have been a reported instance of a party seeking to rely on the Convention to enforce a settlement agreement.
It is therefore still the case that the success or otherwise of the Convention remains to be seen. At the very least, however, the Convention can be seen as a reflection of the growing acceptance internationally of the value of mediation, a further step in the proliferation of mediation as a means to resolve disputes and as a recognition of the fact that international cooperation is needed to maintain the continued rise in its popularity. In short, it is a sign of the times, and whilst it may not be a perfect solution to the issues it seeks to address, the Convention will likely be amended by its signatories over time to better carry out its aims. Of itself the Convention will not convince the reluctant to mediate, but it is an unquestionably positive development and another tick in the already lengthy “pro” column for those weighing up whether to engage in mediation.