With the United Nations Commission on International Trade Law (UNCITRAL)’s Singapore Mediation Convention being signed by 46 countries already and the Civil Justice Council’s working group recommending strategies to increase the use of alternative dispute resolution (ADR), mediation is likely to be used more widely both in England and Wales and in international disputes.
The Singapore Mediation Convention
In August 2019, UNCITRAL opened the Singapore Mediation Convention document for signature. The Convention aims to make enforcement of mediated settlements in international commercial disputes quicker and easier.
At present, when one party defaults after signing a mediation agreement in this type of dispute, the other party usually has to bring a claim for breach of contract in the court stipulated in the underlying contract. After a successful claim, they may need to obtain enforcement, sometimes in a different jurisdiction to the claim. The system is often long-winded and expensive.
The Singapore Mediation Convention should enable the party requesting enforcement to proceed directly in the country where enforcement is required.
Grounds for voiding the original mediation agreement are limited, and are based around failure of the mediator, either by not being impartial or by mishandling the mediation.
The Civil Justice Council ADR working group
In England and Wales, the Civil Justice Council ADR working group has recommended that the court system encourage promotion of alternatives to litigation.
Compulsory mediation is not suggested, with the working group noting that unimpeded access to the courts should remain, but their report is clear that ADR needs to become a more usual means of resolving disputes.
It is recommended that the number of cases where a refusal to mediate is considered to be reasonable should be reduced, with an increase in sanctions for those held to have unreasonably declined mediation.
The courts are to encourage and promote mediation within their written materials, making it known to potential litigants as a presumed first step in the legal process.
It is hoped that ADR will be attempted earlier, with litigation only as a last resort.
Mediation: the way of the future
With both international and domestic mediation set to increase, lawyers and potential litigants need to be more aware of the availability and potential of the process.
Top mediators will be well sought-after, particularly in international disputes, where the only real grounds for voiding a mediation agreement will be by alleging mishandling on the part of the mediator.
Choosing an experienced, knowledgeable mediator with the right skills will be as important as finding the right lawyer. The best mediators are able to bring satisfaction to both parties in a transaction, even while compromise may be essential. They are able to repair relationships, allowing business to continue where appropriate, and are always focused on achieving the best possible outcome for all parties.
If you would like to explore whether mediation can help you resolve a dispute, please call Lux-Mediation on 07876 232 305 or email jonathan@lux-mediation.com.