International Mediation is Worth Considering, Even for Parties Not Yet Bound by the Singapore Convention

Many have argued that mediation isn’t the right choice for resolving cross-border disputes because one cannot compel enforcement, in the same way it is possible for arbitral awards using the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).  The New York Convention is in force for 168 countries and therefore is relied on regularly by parties seeking to enforce arbitral awards across the globe.  Without a similar convention signed by most countries, people argue, mediation has limited value in a cross -border context.

That’s why many international mediators were very excited with the adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Convention on Mediation" or "Singapore Convention") on December 20, 2018. Many believed it would do the same thing for mediation, as the New York Convention did for arbitration, making mediation a genuine alternative to protracted litigation.

The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are in the process of ratifying it.  The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval, or accession.  The United States still needs Senate approval.  Right now, just eleven countries have acceded to the Singapore Convention:  Belarus, Ecuador, Fiji, Georgia, Honduras, Kazakhstan, Qatar, Saudi Arabia, Singapore, Turkey, and Uruguay. 

But that does not necessarily mean that mediation is a non-starter for disputants trying to decide how best to resolve a cross-border dispute.  Besides ease of enforcement there are other reasons for considering mediation:

1.     The Singapore Convention will be adopted broadly eventually - It is anticipated that many countries will soon adopt the Singapore Convention. 

2.     Cross-border mediation, by its nature, results in outcomes parties are more likely to honor without court intervention-Cross-border mediation is worth considering even without such a convention. Mediation empowers the parties to a dispute to find a solution that works for them.  No one can be forced into a mediated settlement.  Because the parties must agree to a mediated settlement, rather than it being a decision reached by a third party, such as a judge or arbitrator in a court ruling or arbitral award, the respective parties are generally more willing to honor their commitment without a party having to turn to a court or other tribunal to compel such behavior. 

3.     Mediation allows for outcomes that many courts couldn’t compel or even enforce – Because the parties decide how to settle a dispute in mediation, there is greater flexibility about outcomes.  Non-monetary remedies are possible.  One party can agree to do or not do something.  In many countries, courts are not allowed to compel a party to do or not do something.  But the parties can make such an agreement and it may be just what the parties agree is the best way to resolve their dispute, without court intervention.

4.     Mediation often allows the parties to maintain an on-going relationship – Because mediation is so much less adversarial, the parties may end up continuing to work together.  That, again, leaves options open for settlement that wouldn’t exist without the parties continuing to work together.  Such outcomes also create greater incentives for the parties to honor their commitments to one another in a mediated settlement, without the hassle and expense of involving a court to compel compliance. 

Of course, as a mediator, I am eager to see the Singapore Convention adopted widely.  It will undoubtedly be a useful tool in enforcing mediated settlements and encouraging the use of mediation globally.  Still, as noted above, there are many reasons to consider using mediation in cross-border disputes today.