ARTICLE 2: DEFINITIONS
3. “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.
Find the introduction and context of this blog series on the Singapore Convention here.
Click here for the complete annotation in Portuguese (Anuário – Ano 3).
Bianca Bregas
Joana Gonçalves
As enshrined in Article 1, paragraph 1, “this Convention applies to an agreement resulting from mediation”. Mediation is defined in article 2, paragraph 3, as “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”.
The genesis of the Singapore Convention is due to the recognition that mediation is an increasingly common practice in international commercial relations[1]. That is, the purpose of this statute is to stimulate the growth of the use of mediation as an efficient method of resolution of these disputes[2]. Thus, the term “mediation” is central to define the scope of its application[3]. However, the question remains: what, for these purposes, is “mediation”?
From Article 2(3), three elements make up the definition of “mediation”. It is i) a process that exists regardless of the term used, ii) where the parties seek an amicable resolution to their dispute, iii) being assisted by a third party who is not empowered to impose a solution.
With regard to element i), it should be noted that the UNCITRAL, in most of its instruments, does not differentiate between the terms “mediation” and “conciliation”[4] . The latter was even more commonly used, an example of which is the 2002 Model Law on International Commercial Conciliation[5]. At the beginning of the deliberation process on the Convention, the view was expressed that the instrument should use the term “mediation” rather than “conciliation”, on the grounds that “mediation” is more widely used in national legal systems – an argument with which the Working Group agreed. It was therefore acknowledged that the terms “mediation” and “mediator” are more widely used and that, therefore, the change in terminology would make it easier to promote the Convention[6]. This change therefore has no substantive or conceptual implications[7].
The irrelevance of this amendment is in line with the general irrelevance of the term used, advocated in the Convention. It follows from Article 2(3) that the name given to the case does not matter – it is the activity and not the label that matters[8].
In the same vein, the Convention employs a broad definition as an “umbrella” covering various types of processes[9].
In short, it has been established that “mediation” is the term used to refer to any process in which the parties request a third party to assist them in an attempt to reach an amicable settlement of a dispute.[10]
Some delegations also suggested narrowing the definition to specify that “mediation” must be a “structured” or “organised” process, a limitation that the Working Group decided not to accept. Adopting any other solution would not be feasible, as it would give rise to a discrepancy in the scope of the concepts of “mediation” and “conciliation”, particularly for States that have adopted the Model Law on Conciliation. Furthermore, specifying a procedure as “structured” or “organised” would restrict the flexibility inherent in this process[11].
Thus, not only is the name given to the process not important, but it is not necessary that the agreement be entered into as a consequence of a ‘structured’ or ‘organised’ process [12] .
Given that omnis definitio in jure periculosa est (every legal definition is dangerous), it is even instinctive that the concept in the Convention is deliberately broad13. It is based on a relatively vague understanding of “mediation”, which, despite its acknowledged advantage in terms of its broad scope, adds significant complexity to the method of determination of the application of the Convention.[13]
Nevertheless, the concept is not intended to be presented in any other way. A broad definition recognises the diversity, at international level, of this process[14]. The definition presented in Article 2, paragraph 3, allows us to encompass the most diverse realities of the practice of “mediation”[15], namely the facilitative, evaluative[16] , etc.[17]
In short, “mediation” is synonymous with flexibility[18] and this characteristic can only be safeguarded, when applying the Convention, through a definition that is broad enough to encompass this complex reality.
As this is such a wide-ranging concept, instead of trying to find a conclusive definition, a conceptualisation based on key characteristics and principles that allow for diversity is sought. By developing a concept based on five fundamental principles – voluntariness, confidentiality, neutrality, empowerment and exclusive solutions[19] – this objective is achieved.
Article 2(3) offers a definition that echoes those in other international pieces of legislation, such as the UNCITRAL Model Law on International Commercial Mediation or EU Directive 2008/52/EC, the common element being the irrelevance of the name by which the procedure followed by the parties is referred to, although the European Directive defines “mediation” as a “structured” process, something which, as mentioned above, was not adopted by the Working Group[20].
Mediation” is a process to which the parties voluntarily adhere and whose purpose is to assist them in formulating a possible agreement. As presented in element ii), the parties voluntarily seek an amicable resolution to their dispute, whose agreement, when reached, is also voluntary (voluntariness).
In this way, we have as an established point that “mediation” allows to find creative and adequate solutions (exclusive solutions) to conflicts through the mechanism of direct confrontation between the parties involved, favouring dialogue and respect through an independent and impartial third party that stimulates it (neutrality).
During this process, the parties, as illustrated by element iii), are assisted by a third party devoid of powers to impose a solution. As there is no order imposed by an authority external to the relationship, but a solution generated by the parties themselves, the “mediation” route is based on the private autonomy of the parties (empowerment)[21], in a win-win atmosphere that allows them to reach a personalised agreement – conceived by them and for them – which, therefore, guarantees greater satisfaction and a greater probability of success in its fulfilment.
Furthermore, an idea underlying this process is that it should take place without prejudice and without reservations, which is only possible through the guarantee of a confidential process (confidentiality). That is to say, everything alleged or written cannot be divulged – neither to a court, nor to third parties – besides the fact that no record can be kept[22].
Although the Convention defines “mediation” broadly to integrate various archetypes of processes, such as facilitative and evaluative, there are mechanisms that are excluded altogether, such as arbitration and adjudication[23].
As an example, arbitration is excluded because, as element (iii) of the definition shows, for the application of the Convention a neutral and independent third party, devoid of authoritative powers, is assumed. In contrast, arbitrators have the power to impose a solution and are therefore precluded from engaging in “mediation” under this definition[24]. The Singapore Convention could not be clearer on this point – arbitrators are excluded from its scope of application.
In short, the concept of mediation embraced is broad, purposely so as to cover the most varied processes, painting the picture of “mediation” through its core principles.
It is this broad concept of “mediation”, which imposes the need to verify, on a case-by-case basis, whether the process falls within its contours, that allows us to state that the Convention is an important step towards the development of harmony in international commercial relations[25].
[1] Ignacio Iturvide, “Reflexiones sobre La Nueva Convención de Las Naciones Unidas sobre los Acuerdos de Transacción Internacionales Resultantes de la Mediación (“Singapore Convention”)”, Revista de Derecho de la Universidad de Montevideo, no. 37, 2020, p. 4.
[2] Lela P. Love; Hal Abramson; Natalie Y. Morris-Sharma; Corinne Montineri, “Singapore Mediation Convention Reference Book”, in Scholarly Works, Cardozo Journal of Conflict Resolution, volume 20, no. 4, Benjamin N. Cardozo School of Law, New York, 2019, pp. 1-305, pp. 160-161.
[3] Lela P. Love; Hal Abramson; Natalie Y. Morris-Sharma; Corinne Montineri, “Singapore Mediation Convention Reference Book”, 2019, p. 170.
[4] Law Council of Australia, “Singapore Convention on Mediation – Consultation Paper”, in Commonwealth Attorney-General’s Department, 2020, pp. 7-8.
[5] Which has now been replaced by the Model Law on International Commercial Mediation.
[6] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary”, in Kluwer Law International, 2019, p. 3.; UN Commission on International Trade Law, “International Commercial Mediation: Draft Convention on International Settlement Agreements Resulting from Mediation”, Note by the Secretariat, 2018, p. 9.
[7] Lela P. Love; Hal Abramson; Natalie Y. Morris-Sharma; Corinne Montineri, “Singapore Mediation Convention Reference Book”, 2019, pp. 170-173.; Shaheen Banoo, “Scope of Singapore Convention on Mediation Annotated”, Symbiosis International University, Symbiosis Law School, 2020, p. 9.
[8] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary – Article 2. Definitions”, in Kluwer Law International, 2019, p. 6.
[9] Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, Pepperdine Dispute Resolution Law Journal, volume 19, no. 1, 2019, pp. 15-19.
[10] Ignacio Iturvide, “Reflexiones sobre La Nueva Convención de Las Naciones Unidas sobre los Acuerdos de Transacción Internacionales Resultantes de la Mediación (“Singapore Convention”)”, 2020, p. 5;
[11] Lela P. Love; Hal Abramson; Natalie Y. Morris-Sharma; Corinne Montineri, “Singapore Mediation Convention Reference Book”, 2019, pp. 173-180.
[12] Felipe Pavan Callejas, “The Singapore Convention on Mediation: What Everyone Should Know About It”, in Trabajos Finales de Máster, Universitat de Barcelona, 2019, p. 12;
[13] Clemens Treichl, “The Singapore Convention: Towards a Universal Standard for the Recognition and Enforcement of International Settlement Agreements”, Journal of International Dispute Settlement, volume 11, no. 3, 2020, pp. 409-429;
[14] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary – Article 2. Definitions,” in Kluwer Law International, 2019.
[15] Bryan Clark and Tania Sourdin, “The Singapore Convention: a solution in search of a problem?”, in Northern Ireland Quarterly forthcoming, 2020, p. 6; Clemens Treichl, “The Singapore Convention: Towards a Universal Standard for the Recognition and Enforcement of International Settlement Agreements”, 2020, p. 6.
[16] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary – Article 2. Definitions,” in Kluwer Law International, 2019.
[17] Shouyu Chong and Nadja Alexander, “An Introduction to the Singapore Convention on Mediation – Perspectives from Singapore”, in Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, 2019, p. 2.
[18] Ignacio Iturvide, “Reflexiones sobre La Nueva Convención de Las Naciones Unidas sobre los Acuerdos de Transacción Internacionales Resultantes de la Mediación (“Singapore Convention”)”, 2020, p. 4.
[19] Jing Zhi Wong, “Is Mediation a Process of “Law”? A Hart-ian Perspective”, Jurnal Undang-undang dan Masyarak, 2021, pp. 18-34. p. 19.
[20] Elisabetta Silvestri, “The Singapore Convention on Mediation Settlement Agreements: A New String on the Bow of International Mediation?”, Access to Justice in Eastern Europe, no. 3, 2019, p. 4; Agada Elachi, “The Singapore Convention on Mediation: Lessons and Prospects”, Chamber Telegraph, 2020.
[21] Jing Zhi Wong, “Is Mediation a Process of “Law”? A Hart-ian Perspective”, Jurnal Undang-undang dan Masyarak, 2021, pp. 18-34, p. 19.
[22] Oliver Browne and Philip Clifford, “The Singapore Mediation Convention: Will It Enhance Mediation’s Effectiveness?”, in Latham & Watkins International Arbitration Practice, no. 2797, 2020. p. 6.
[23] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary – Article 2. Definitions”, 2019, p. 2.
[24] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary – Article 2. Definitions”, 2019, p. 2.
[25] Mariana Soares David, “UNCITRAL bets on International Mediation”, in Lisbon Arbitration by Morais Leitão, 2018, p. 1.