The Singapore Convention on Mediation: An Overview
The Singapore Convention on Mediation provides an efficient and harmonised framework for the cross-border reliance on mediated settlement agreements With the Convention, an international mediated settlement agreement need not be transformed into another enforceable instrument, such as a court judgment or an arbitral award, before it can be relied upon before a court. Importantly, if such a settlement agreement is either recorded and enforceable as an arbitral award, or approved by or concluded before a court and is enforceable as a judgment in the State of that court, then the Convention would not apply (see Article 1(3)).
The need for the Singapore Convention on Mediation
In an interconnected world, with business arrangements—and associated disputes—frequently taking place across borders, it has become even more important to find ways and means of resolving disputes in a time and cost efficient fashion.
Mediation is a form of dispute resolution that is both time efficient and cost effective, and these benefits are reaped by commercial parties, as well as by States through the savings in their administration of justice. In addition, mediation is conciliatory in nature, unlike litigation and arbitration which are fundamentally adversarial. Disputing parties can shape the way their disputes are resolved in a way that suits them and their needs. Mediation also offers the opportunity for disputing parties to preserve their commercial relationships, which can be particularly valuable in the context of long-term, large-scale, cross-border projects.
However, the lack of a cross-border mechanism for giving legal effect to international mediated settlement agreements has been a significant barrier to the use of mediation. A survey conducted in October and November 2014 by the International Mediation Institute found that 90.5% of those surveyed were of the opinion that the absence of any kind of international enforcement mechanism for mediated settlements either presented a major impediment or was one deterring factor to the growth of mediation as a mechanism for resolving cross-border disputes. In another survey, 74% of respondents indicated that they thought an international convention concerning the enforcement of settlement agreements would encourage mediation and conciliation.
Even without the Singapore Convention, consent awards have been utilised strategically, as a means of enforcing mediated settlement agreements under the umbrella of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the “New York Convention”). In many ways, this has been endorsed by the use of hybrid dispute resolution processes such as med-arb. However, there are inherent uncertainties in this “shoehorning” approach. For example, if an arbitration is only commenced after the parties have reached a settlement, in many jurisdictions, the resulting award would not be one that settled “differences” between the disputing parties. The resulting award would therefore not fall within the scope of the New York Convention. In addition, the New York Convention was designed for arbitral awards, and certain concepts do not sit well in the context of mediation or do not accommodate the specific features of mediation as a dispute resolution process.
Key features of the Singapore Convention on Mediation
The text of the Singapore Convention on Mediation was finalised and adopted by the United Nations Commission on International Trade Law (“UNCITRAL”) and the United Nations General Assembly in 2018, following a multilateral negotiations process that engaged representatives from different countries, cultures, languages, and professional backgrounds. It was an immense honour to have served as the Chairperson of the UNCITRAL Working Group that developed the Convention, and to have worked closely with the various representatives, including country delegations and delegates from numerous international government and non-government organisations.
1. Scope of application
Mediation is defined in the Singapore Convention on Mediation as a process “whereby parties attempt to reach a 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” (see Article 2(3)). The definition acknowledges mediation as a flexible process. There is no requirement for the mediation process to be “structured”. Mediations may include those administered by, or undertaken under, the auspices of an institution.
The Singapore Convention on Mediation addresses itself only to mediated settlement agreements and not to agreements to mediate. This is in recognition of how mediations are not necessarily commenced on the basis of agreements to mediate. Further, the Convention refers to “international” settlement agreements. The internationality of a settlement agreement is determined by reference to the places of business of the parties to the agreement, at the time of the conclusion of the settlement agreement (see Article 1(1)). It is not derived from the international or domestic nature of the mediation process.
In respect of what constitutes a “commercial” matter, the intention was for the term to be understood broadly. To this end, reference can be made to the illustrative list retained in footnote 1 in the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International Commercial Conciliation, 2002). That said, this is subject to the exclusions set out in the Singapore Convention on Mediation for settlement agreements concluded to resolve a consumer dispute, or relating to family, inheritance or employment law (see Article 1(2)).
Notably, the reference to “commercial” settlement agreements includes agreements involving government entities, in recognition of the fact that government entities do engage in commercial activities and may seek to use mediation to resolve disputes in the context of such activities. Unless a reservation or declaration is made under Article 8(1)(a) in relation to settlement agreements to which a Party to the Singapore Convention on Mediation, or its governmental agencies or agents, is party, the Convention would apply to such agreements. As such, the Convention is generally relevant and applicable in the context of investor-State mediation.
The Singapore Convention on Mediation may apply so long as the settlement agreement is in writing, signed by the parties to the agreement, and there is evidence that the settlement agreement resulted from mediation (see Article 4(1)). The “in writing” and signature requirements can be met by an electronic communication (see Article 2(1) and Article 4(2)). This caters for situations such as online mediation, or where the parties to a settlement agreement are not physically in the same location when the agreement is drafted.
Regarding evidence that the settlement agreement resulted from mediation, the Singapore Convention on Mediation provides an open, illustrative list as to what such evidence might be (see Article 4(1)(b)). The illustrative list provides guidance for a party relying on a settlement agreement, while preserving flexibility, as to what evidence may be supplied. In this way, different mediation practices in different jurisdictions are respected.
On a related note, there is no requirement in the Singapore Convention on Mediation for the parties to a settlement agreement to confirm their consent to enforce their obligations in the settlement agreement. However, it may be prudent for parties to a settlement agreement to do so, if it is assessed that their agreement is likely to be relied upon or invoked in a Party to the Singapore Convention that has entered a declaration, under Article 8(1)(b), requiring that the parties to a settlement agreement need to opt-in in order for the Convention apply.
3. Grounds of refusal
A key part of the Singapore Convention on Mediation are the grounds of refusal in Article 5, and these are limited to those set out in the Convention.
Some of the grounds of refusal were inspired by those in the New York Convention, but not all. For instance, there are grounds of refusal in the Singapore Convention on Mediation such as where there was incapacity of a party to the settlement agreement (see Article 5(1)(a)), which was inspired by Article V(1)(a) of the New York Convention; if the settlement agreement was null and void, inoperative or incapable of being performed (see Article 5(1)(b)(i)), for which inspiration was drawn from Article II(3) of the New York Convention; and if the settlement agreement was not binding (see Article 5(1)(b)(ii)), which draws from Article V(1)(e) of the New York Convention. Like Article V(2) of the New York Convention, enforcement can be refused on grounds of public policy or if the subject matter was not capable of settlement by mediation, and these grounds can be raised sua sponte by a court before which relief is sought (see Article 5(2)).
At the same time, it was clear that the different contexts and characters of arbitration and mediation meant that there were grounds of refusal in the New York Convention, such as excess of authority in Article V(1)(c) and procedural irregularities in Article V(1)(d), that would not transfer easily. There are thus no provisions in the Singapore Convention on Mediation that are equivalent to these.
Some of the grounds of refusal in the Singapore Convention on Mediation are specific to mediation. These concern the impact of the mediation process, and conduct of the mediators, on the enforcement procedure. The Convention provides that relief may be refused where there was a “serious breach” by the mediator of standards applicable to the mediator or the mediation, without which breach that party would not have entered into the settlement agreement (see Article 5(1)(e)); as well as where there was a failure of the mediator to disclose to the parties to the settlement agreement circumstances that raise “justifiable doubts” as to the mediator’s impartiality or independence, and such failure to disclose had a “material impact or undue influence” on a party, without which failure that party would not have entered into the settlement agreement (see Article 5(1)(f)). The causal effect, of a serious breach of applicable standards or a failure to disclose, on the disputing party entering into the mediated settlement, is key.
There are also grounds of refusal for when the settlement agreement has been subsequently modified (see Article 5(1)(b)(iii)); or the obligations in the settlement agreement have been performed or are not clear or comprehensible (see Article 5(1)(c)); or where relief would be contrary to the terms of the settlement agreement (see Article 5(1)(d)). While elements of the grounds of refusal may strike as being “too obvious to need to be stated”, and while certain of the grounds of refusal set out in Article 5(1) potentially overlap, the structure and content of Article 5(1) reflect the accommodation of the concerns expressed during the negotiations, from the perspective of different domestic legal systems.
The inclusive, multilateral process of the negotiations that developed the Singapore Convention on Mediation ensured that the Convention is not only tailored to the practice (and practical aspects) of mediation, but also accommodates different legal traditions.
Moreover, in order to ensure that the expedited enforcement procedure provided by the Singapore Convention on Mediation is not abused, the Convention’s provisions have been carefully calibrated. The Convention requires that there be evidence brought demonstrating the involvement of a mediator in the process that led to the conclusion of the settlement agreement (see Article 4(1)(b)). Additionally, in the event of fraud, the reliance on a settlement agreement that is sought may be refused. In the grounds of refusal, the reference to the settlement agreement being null and “void” was deemed, during the negotiations, to be broad enough to encompass elements relating to the capacity of the parties to the settlement agreement, including fraud, as well as duress, misrepresentation, and mistake (see Article 5(1)(b)(i)).
The Singapore Convention on Mediation offers certainty for the outcomes of international mediated settlements reached to resolve commercial disputes. It not only contributes to the multilateral rules-based global economy, but also promotes access to justice and the rule of law, in support of, in particular, United Nations Sustainable Development Goal 16 on peace, justice and strong institutions. May the number of Parties to the Convention continue to grow, in support of these outcomes.
By Natalie Y. Morris-Sharma,
Deputy Senior State Counsel, Singapore Attorney-General’s Chambers*;
* The views expressed herein are the views of the author and do not necessarily represent the views of the Government of Singapore.
 Digital Event to Commemorate the Entry into Force of the Singapore Convention on Mediation, available online at https://www.singaporeconvention.org/events/scm2020 (last accessed: 10 November 2020).
 International Mediation Institute, IMI survey results overview: How Users View the Proposal for a UN Convention on the Enforcement of Mediated Settlements, available online at: https://imimediation.org/2017/01/16/users-view-proposal-un-convention-enforcement-mediated-settlemen.... (last accessed: 10 November 2020).
 Stacey I. Strong, “Use and Perception of International Commercial Mediation and Conciliation: A Preliminary Report on Issues Relating to the Proposed UNCITRAL Convention on International Commercial Mediation and Conciliation” (2014) University of Missouri School of Law Legal Studies Research Paper No 2014-28 at 45.
 Article 2(3) of the Singapore Convention on Mediation. The term “mediation” is used with the intention that it be understood the same way as the term “conciliation”, as used in the context of UNCITRAL’s earlier work on conciliation. To address concerns over an inadvertent substantive change in meaning resulting from the use of the term “mediation” in lieu of “conciliation”, it was agreed that the text accompanying the Convention would explain the historical developments of the terminology in the UNCITRAL texts and emphasise that the term “mediation” is “intended to cover a broad range of activities that would fall under the definition as provided in article 1(3) of the Model Law regardless of the expressions used”.
 At the time of writing, Belarus, Iran, and Saudi Arabia, had entered reservations pursuant to Article 8(1)(b) of the Singapore Convention on Mediation. See UNCITRAL, “Status: United Nations Convention on International Settlement Agreements Resulting from Mediation”, available online at: https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/ (last accessed: 30 September 2020).
 At the time of writing, out of the 53 signatories to the Convention, only Iran had made a declaration upon signature, requiring that parties to a settlement agreement opt-in for the Convention to apply. None of the six ratifying countries have made this declaration. See UNCITRAL, “Status: United Nations Convention on International Settlement Agreements Resulting from Mediation”, available online at: https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/ (last accessed: 30 September 2020).
 See Natalie Y. Morris-Sharma, “The Changing Landscape of Arbitration: UNCITRAL’s Work On The Enforcement Of Conciliated Settlement Agreements” (2018) Austrian Yearbook on International Arbitration 123, at 136-137, and Bobette Wolski, “Enforcing Mediated Settlement Agreements (MSAs): Critical Questions And Directions for Future Research” (2014) 7 Contemporary Asia Arbitration Journal 87, at 98.
 Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements” (2019) 19 Pepperdine Dispute Resolution Law Journal 1, at 47.
 That there might be overlap amongst the grounds of refusal provided for in Article 5(1) was acknowledged by the negotiators. The intention is for the competent authorities to take this into account when interpreting the various grounds.