By Valentine Buoro
The big news that hit the headlines on Thursday August 8, 2019 is that the world now recognizes International Mediation Settlement Agreements as binding and enforceable across national borders.
The journey to the attainment of this global shift in legal procedures began at the Roscoe Pound Conference of 1976 at which Harvard Law Professor Frank Sander first proposed the multi-door courthouse approach to dispute resolution.
Ever since that momentous occasion, the world had embraced alternative dispute resolution with cautious optimism as a section of the legal community fought back against the process they perceived as an intrusion into their professional sphere.
As more and more literature and practice development in the emergent professional industry grew, the judiciary seized the momentum with the establishment of multi-Door Courthouses and the release of practice directions to guide what had obviously become a silent revolution in the overburdened judicial sphere.
The aforementioned activities quietly took hold within respective jurisdictions, even as there remained a grave concern as to a uniform global recognition and enforcement of International Mediation Settlement Agreements. The coming on stream of the Singapore Convention on mediation is therefore a significant milestone worth celebrating. The convention which was adopted by the UN General Assembly on the 20th December 2018 is also known as the United Nations Commission on International Trade Law’s (UNCITRAL) Convention on the Enforcement of International Settlement Agreements.
Experts say that “beyond being an instrument to facilitate enforcement of international settlement agreements resulting from mediation, the deeper intention behind the Singapore Convention is to provide a regulatory foundation to support the rise of mediation into the main international dispute resolution arena alongside arbitration’’.
The point should however be made that the Singapore Convention does not apply to all International Mediation Settlement Agreements. It excludes consumer disputes for personal, family or household purposes and matters that relate to family, inheritance or employment law. The Convention does not also apply to settlement agreements that have been approved by a court or concluded in the course of proceedings before a court; and that are enforceable as a judgment in the State of that court. The convention further excludes settlement agreements that have been recorded and are enforceable as an arbitral award.
The foregoing development and the many more to follow must be cheering news to businesses that seek justice that is untainted with procedural technicalities. Unlike other dispute resolution platforms the new convention remains as flexible and fluid as it can possibly be. There are no provisions which in any way may cause laws of the host country of the mediation or of its enforcement to override the full intentions of the parties.
However parties applying to the court of a signatory State to enforce an International Mediation Settlement Agreement under the Singapore Convention must produce a written copy of the mediation settlement agreement signed by the parties as well as provide evidence that the international settlement agreement was a result of a mediation process.
The convention gives a rather liberal definition to what constitutes mediation. It provides that “Mediation” means a process, irrespective of the expression used or the basis upon which the process is carried out, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons (“the mediator”) lacking the authority to impose a solution upon the parties to the dispute’.
According to the rules the “in writing” requirement is satisfied if its content is recorded in any form including an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference. This should mean that settlement agreements attained through Online Dispute Resolution process will pass the test once the settlement agreement is recorded and retrievable for subsequent use
The Convention establishes a detail list of defences to the enforcement of an international mediation settlement agreement. Those who seek to resist the enforcement of any international mediation agreement may prove amongst other things that a party to the settlement agreement was under some incapacity; that the settlement agreement sought to be relied upon is null and void, inoperative or incapable of being performed under the law to which the parties have validly subjected it. Enforcement will also be denied if it can be proved that the agreement is not binding, or is not final, according to its terms or that it has been subsequently modified
It is obvious that the depth of research and quality of contributions to the drafting of this convention will significantly impact the practice and procedures of mediation services in many jurisdictions. The rules also focus on mediator competence and or misconduct as grounds to deny international enforcement of some settlement agreements. What this is likely to translate to is a higher standardization of training and credentialing of mediators.
Back home in our jurisdiction, Nigerians have cause to walk with their heads high as Nigeria was among the first forty six countries to sign on to the Convention. This confirms beyond doubts that the Federal Government has been part of the great strides the country has over the years taken with regards to the development of ADR practice.