Mediated Settlement Agreements Research Articles

Enforceability of agreements to mediate and mediated settlement agreements in Albania

The article aims to examine the provision of the Albanian Mediation Law that provides mediation as a condition for the admissibility of the lawsuit in court when the parties have provided for it in the contract as a preliminary condition before addressing the court. This legal provision is addressed considering the right of access to court and aims to discuss how these agreements to mediate are enforced. In addition, since enforcement of mediated settlement agreements is also a guarantee for the effectiveness and success of mediation, this article also focuses on the analysis of the legal framework and the problems related to their enforcement, which differ depending on how the parties have resorted to mediation (voluntarily, due to the contract, or by referral from the court), and on the type of disputes, where mainly problems arise with conflicts of ownership over immovable property. Besides the analysis of the Albanian Mediation Law, following a comparative approach, the article also addresses the mediation laws of some foreign countries.

Free movement of mediators across the European Union: a new frontier yet to be accomplished?

Background: This article explores the challenges that stem from the existing national legislation in the field of mediators’ profession regulations on an EU level. It identifies some professional and training requirements in this area and analyses their impact on the freedom and quality of the mediation services offered from one Member State to the other. It further outlines the variety of regulatory models and accreditation practices that apply towards mediators having been certified in the Union or third countries and puts this in the context of spreading mandatory mediation models. The authors explore the different procedures that apply to training and accreditation to see the similarities and differences in the professional standards that apply and their impact on the mediation settlement agreements reached. Methods: Research commenced with a review of the existing scientific literature, a brief overview of the national regulation on the mediators’ profession, and a document analysis concerning the recognition and accreditation of mediators in the EU. This was followed by a comparative study of training requirements and court-related mediation procedures that exist in a number of jurisdictions like Bulgaria, Lithuania, and Italy to highlight some of the main differences. Results and Conclusions: The analyses of the existing national legislation in the field of mediators’ profession regulations on an EU level showed that it is hard or nearly impossible for mediators trained in one EU Member State to render mediation services in other Member States. The existing regulations, coupled with the diverse national training requirements, call for adopting uniform training standards with a synchronised and applicable curriculum across all states. The authors see this as one of the ways to increase the trust in the quality of the mediation service to be of a certain fixed standard and to support the numerous mandatory mediation schemes which in cross-border disputes raise the question of the suitability of the mediator assisting parties in such a dispute resolution process.

Looking Around: Should Thailand Promote Mediation Effectiveness and How?

Mediation as a form of alternative dispute resolution has many advantages compared to other dispute resolution methods, especially those of adjudicatory nature, such as litigation and arbitration. Thailand and Singapore share a similar policy of advocating the practice of mediation. That said, Thailand seems to focus principally on domestic mediation, while Singapore tends to position itself as a mediation hub for international disputes. In terms of the legal framework, both countries have enacted legislation and regulations that endorse, effectuate, and facilitate mediation. In both jurisdictions, these laws and regulations aim to uphold the principle of party autonomy, provide the necessary support, create a mediation-friendly climate, maintain the integrity of the process, and ensure the enforceability of valid mediated settlement agreements. This article, which is intended to be descriptive, discusses some important concepts and characteristics of mediation and explores the legal frameworks of mediation in Thailand and Singapore, as well as both countries’ experiences in dealing with this non-adversarial dispute settlement mechanism.

Требования к международному коммерческому соглашению, заключенному в результате медиации: Сингапурская конвенция и российское законодательство

Once Singapore Convention on Mediation was adopted in 2018 and it has become possible to facilitate performance of the international commercial settlement agreements resulting from mediation abroad interest to mediation as a means of settlement of the international commercial disputes started to grow. In the eyes of the lawyers such mediated settlement agreements have much in common with the awards of international commercial arbitration, the most popular dispute resolution tool for disputes arising during foreign trade activities. Today in the age of turbulence and chaos mediated settlement agreements allow to satisfy the needs of business in the expediate settlement of foreign trade conflicts on the terms acceptable for the parties and to obtain guarantee of quick, simple and cost-efficient performance of the agreements reached. For this reason, it is worth considering adjustment of the internal laws to the best world practices. Article considers the means available under the Russian laws to make mediated settlement agreement enforceable and the tests it would have to undergo on the way. Deeming it advisable for Russia to join the Singapore convention on mediation, author concludes that it is necessary to prepare the internal legislation for such step as it was done, e.g., in Belorussia. Possible solution could consist either in introduction of a special chapter on granting relief in connection with the performance of international commercial mediated settlement agreements corresponding to the provisions of the Singapore Convention on mediation and the UNICTRAL Model law on mediation in the Russian Code of Procedure with Commercial Courts or in the adoption of a separate law on international commercial mediation. Since international commercial arbitration and the internal arbitration are regulated in Russia by two separate laws taking into account the special features of the disputes resolved, it would be logic to keep dualistic regulation for mediation as well.

The Singapore convention on mediation to reinforce the status of international mediated settlement agreement: Breakthrough or redundancy?

AbstractMediation is a type of alternative dispute resolution (ADR) in which an impartial third party facilitates a voluntary negotiation. It is sometimes more desirable than traditional litigation or arbitration because of its timeliness, affordability, and tendency to preserve the disputant's relationship. Despite these advantages, global commercial mediation has traditionally suffered from one significant flaw: the difficulty for international mediated settlement agreements (iMSAs) to be enforced. The UN Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation or SCM) aims to address this issue by establishing a process that makes iMSAs ipso facto enforceable. While this is a desirable and long‐awaited development for mediation, this article will argue that the convention will not disrupt the present ADR market, but it may potentially compete with hybrid ADR—like the Arb‐Med‐Arb, at least until the SCM obtains wider recognition. The SCM should also have addressed the enforceability of both iMSAs and agreements to mediate, rather than just that of merely the former.

The Singapore Mediation Convention and International Business Mediation

Summary The article deals with the International Business Mediation and Singapore Mediation Convention on enforcing cross-border mediated settlement agreements. Mediation, as an alternative dispute resolution method, is widely preferred by parties with disputes in many countries. For this reason, in relation to ADR methods including mediation, both in Anglo-American Law and in Continental European Law, various technical and legal arrangements have been made. Mediation Laws in the EU have become one of the regulations bringing out rules that are in conformity with the new developments reflected also in the Singapore Convention on Mediation. Harmonisation initiatives in the EU and in the global world are not confined to intergovernmental activities. The same is also currently ongoing in the field of unification. Also, the private business sector, less restricted by jurisdictional boundaries, is increasingly driving harmonisation in mediation practice and law. As applicable national mediation law is often the same for cross-border and domestic applications, the Singapore convention introduces a contemporary definition of mediation procedural law and offers positive factors that shape it globally. Relevant national and international aspects are presented throughout the first part of this study, with specific sections on international business mediation and international instruments of private international law.

Opportunities and Challenges Created by the United Nations Convention on International Mediation Settlement Agreements

Opportunities and Challenges Created by the United Nations Convention on International Mediation Settlement Agreements

Prolegomena to the UN Convention on International Mediated Settlement Agreements Resulting from Mediation

Abstract This article aims to offer a detailed overview of the Singapore Convention on Mediation (formally known as the UN Convention on International Mediated Settlement Agreements Resulting from Mediation). The Convention establishes a unified, efficient system for the enforcement of international mediated settlement agreements—akin to the framework established for arbitral decisions by the 1958 New York Convention. This article offers a critical assessment of the Convention as well as some commentaries on how it will fit into the current alternative dispute resolution market. This contribution also assesses the Convention’s key features, how it is likely to be applied, as well as its perceived strengths and weaknesses.

Mediation and Appropriate Dispute Resolution

2019 was a significant year for mediation. On 7 August 2019, 46 states – an unprecedented number – came together in Singapore to sign the United Nations Convention on International Mediated Settlement Agreements Resulting from Mediation (“Singapore Convention”). The Convention, which comes into force on 12 September 2020, provides a legal framework for the recognition and enforcement of mediated settlement agreements across borders and thereby addresses one of the major criticisms of international mediation, namely, the lack of an internationally recognised expedited enforcement mechanism. The Singapore Convention aims to be for mediation what the Convention on the Recognition and Enforcement of Foreign Arbitral Awards is for arbitration. The Singapore Convention casts an even brighter spotlight on Singapore as a mediation and dispute resolution hub; with this attention comes increased interest in Singapore’s jurisprudence on mediation and other forms of appropriate dispute resolution (“ADR”). It is therefore timely to introduce a chapter on mediation and ADR to the Ann Rev. In terms of scope, this chapter will not deal with arbitration unless it forms part of a mixed mode dispute resolution process, which has mediation as an element. Further, the authors note that the body of jurisprudence on mediation and ADR-related subject matter is evolving. Thus, the categories of cases in this chapter will develop accordingly. In this inaugural chapter, the authors offer a review of cases in three categories. First, cases on the recognition and enforcement of negotiated and/or mediated settlement agreements are examined. Next, cases which address issues in mediation and ADR practice and ethics are reviewed. Finally, the authors consider cases dealing with civil procedure aspects of mediation, including disclosure of mediation evidence and the apportionment of costs.

The Singapore Convention on Mediation and the New York Convention on Arbitration: Comparing Enforcement Mechanisms and Drawing Lessons for Asia

This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context. Arbitration, Mediation, New York Convention, Singapore Convention on Mediation, International dispute resolution

A Matter of Interpretation? Understanding and Applying Mediation Standards for the Cross-Border Enforcement of Mediated Settlement Agreements

This article focuses on the future role to be played by mediation standards in view of the signing of the Singapore Convention on Mediation. It argues that the convention has elevated the standing of mediation standards from soft regulatory codes to quasi‐legal grounds impacting the enforcement of mediated settlements. However, the inherently generalized nature of mediation standards does not render them amenable to contextualized interpretation. More significantly, the courts may adopt the wrong frame when construing mediation standards. It is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross‐border understanding of standards.

Scope of Singapore Convention on Mediation Annotated

“The Singapore Convention on Mediation is the missing third piece in the international dispute resolution enforcement framework. This will help advance international trade, commerce and investment.” The significance of the Singapore Convention is that it facilitates the enforcement of settlement agreements climaxed via mediation conducted and culminated in foreign jurisdictions. It deals with instances wherein the parties' fail to adhere to the settlement which was agreed upon at the time of mediation, thereby, the parties' will now be able to enforce the agreement agreed upon in course of the mediation in the same vein as an arbitration award. Ergo, the cornerstone of the Singapore Convention on Mediation is to further bolster the role of commercial mediation as a dispute resolution mechanism. This research paper is structured as follows. The first part will lay out the scope of the Singapore Convention on Mediation as the overriding theme of the research paper. The second part will examine its role in accelerating the development of international business mediation. The third part will construct analysis of the concomitant issues apropos the new Convention on Mediated Settlement Agreements and evaluates the way ahead of the Convention. Lastly, the fourth part will be the conclusion followed by the researcher's comment vis-a-vis the understanding whether the Convention is a new string to the bow of international mediation.

A matter of interpretation? Understanding and applying mediation standards for the cross‐border enforcement of mediated settlement agreements

AbstractThis article focuses on the future role to be played by mediation standards in view of the signing of the Singapore Convention on Mediation. It argues that the convention has elevated the standing of mediation standards from soft regulatory codes to quasi‐legal grounds impacting the enforcement of mediated settlements. However, the inherently generalized nature of mediation standards does not render them amenable to contextualized interpretation. More significantly, the courts may adopt the wrong frame when construing mediation standards. It is therefore imperative that the mediation community find ways to bridge frames and facilitate the cross‐border understanding of standards.

The Singapore Convention for Mediation: From Promotion to Workable Standards by Way of New York

The Singapore Convention for mediation, which will come into force in September 2020, is often compared to the 1958 New York Convention for arbitration. The treaties share the common purpose of giving the force of international law to private means of disputes resolution. Under their terms, courts will enforce arbitral awards and mediated settlement agreements that resolve international commercial disputes. The New York Convention is considered to be the primary driver behind the success of international commercial arbitration. Supporters of the Singapore Convention hope that treaty will lead to similar success for international commercial mediation. While the New York Convention inspired the Singapore Convention and influenced its terms, there are key differences between the instruments and the processes they empower. This article analyzes those differences and considers how international commercial mediation might develop under the Singapore Convention from this vantage point. The analysis has implications for participants in mediations, courts applying the convention, and states considering whether to accede to the convention and make treaty reservations. The conclusion offers three broad prescriptions that would enhance the practical benefit of the convention beyond its value as a tool of promotion.

Enforcement of mediation settlement agreements in the EU and the need for reform

This article discusses the current status of EU law on cross-border enforcement of Mediated Settlement Agreements (MSAs) focusing mainly on non-family law matters. Directive 2008/52 states the form an MSA may take under the national legislation, as the basis of cross-border enforcement. Given (a) the polyphony of national legislation as to the form an MSA may take for enforcement purposes and (b) the meaning of “judgment” under EU private international law and the Solo Kleinmotoren case, it is suggested that a level playing field as to cross-border enforcement of MSAs in the EU is not guaranteed. Further, it is suggested that MSAs constitute the outcome of a third distinct dispute resolution category, next to judgments and awards, and are also distinct to contracts. It is concluded that a reform of EU law seems necessary in order to mitigate the above lack of an equal level playing field and to take into account the special character of MSAs.

Exploring and Using Business Solutions In Mediation Settlement Agreements

It has long been recognized that one of mediation's great strengths is that the parties are not limited to the narrow, binary win‐lose results available in litigated resolutions.

From Conventions to Protocols: Conceptualizing Changes to the International Dispute Resolution Landscape

Abstract The recently-concluded Singapore Mediation Convention and Hague Judgements Convention have aimed to facilitate the cross-border enforcement of mediated settlement agreements and court judgements in the same way that the New York Convention has facilitated the cross-border enforcement of arbitral awards. This shift in the international dispute resolution landscape is analysed on three levels: normative, strategic and operational. Drawing from theories of private international law, international political economy and comparative public policy, this article asserts that convergent public and private interests likely championed the elaboration of international conventions as a means of promoting harmonization in international dispute settlement. It demonstrates that while the conversion of court judgements and mediated settlement agreements into arbitral awards could also have facilitated their cross-border enforcement, the further development of new mechanisms that respond directly to commercial parties’ needs remains necessary to complement the evolving treaty framework.

Singapore Convention in Light of China’s Changing Mediation Scene

The Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation, or the “Singapore Convention”) is a new Convention developed by the UNCITRAL to provide a uniform and efficient framework for the cross-jurisdictional recognition and enforcement of mediated settlement agreements. Although the Convention has yet to come into force, it has already been expected to greatly improve and promote the use of mediation in commercial settings, in domestic and cross-border contexts. This article offers some China-specific analytics by taking a look at the likely impact of the Singapore Convention in three areas, mediation law, the international commercial court, and the Belt and Road Initiative, and discusses why the current legal environment in China provides some excellent opportunities for mediation to be more widely adopted in China following signing of the Convention. It concludes that the Singapore Convention will elevate the status of mediation to one of the top cross-border dispute resolution mechanisms in China. However, further observations need to be conducted to ensure continuous development of mediation in China will not undermine a rule-based legal infrastructure.

Singapore Case Note: Settlement Agreement Invoked as Shield

The Singapore Convention on Mediation makes clear that international mediated settlement agreements (iMSAs) may be used as a sword or invoked as a shield in judicial or arbitral proceedings (defence). In the post-Singapore Convention world, lawyers are looking closely at the extent to which courts may recognise settlement agreements, especially mediated settlement agreements, as a shield or a defence to arbitral or litigation proceedings.

Recognition and Enforcement of Mediated Settlement Agreements Internationally: Enhancing the Use of Arbitration

Recognition and Enforcement of Mediated Settlement Agreements Internationally: Enhancing the Use of Arbitration