Mediation Agreements Now Enforceable Internationally By Valentino 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.

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