Mediation and Arbitration: The Process of Enforcement

Abstract

Mediation is an important means of resolving international commercial disputes. The mediators whom the parties appoint can help to avoid contentious, dilatory and costly conflicts, including by resort to arbitration and/or litigation. The problem is the recognition and enforcement of mediated agreements often diverges from one state to the next. This makes it difficult to predict whether a mediated agreement will be enforced in a particular jurisdiction. The draft 2018 Singapore Mediation Convention [SMC] seeks to address this problem by providing uniform rules to govern the recognition and enforcement of mediated agreements. The obstacle faced by the SMC is that leading commercial states, notably in the EU, have resisted signing onto the SMC. They argue that mediation is, and ought to be, regulated domestically; and that the SMC is likely to marginalize domestic conceptions of mediation. This article evaluates the significance of mediation in resolving international commercial disputes. It stresses the growing importance of mediation in international commercial dealings, how the SMC can assist to fill a void in regulating such mediation, and how it can prevent commercial disputes from regressing into protracted arbitration with ensuing enforcement complications. Focusing on the SMC's rules governing the enforcement of mediation agreements, it examines how those rules are likely to operate in law, and their perceived strengths and limitations in practice.