ARTICLE 5 – GROUNDS FOR REFUSING TO GRANT RELIEF

1. The competent authority of the Party to the Convention where relief is sought under article 4 may refuse to grant relief at the request of the party against whom the relief is sought only if that party furnishes to the competent authority proof that:

(f) There was a failure by the mediator to disclose to the parties 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.

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).

There are two different annotations to this rule. Scroll down for the second one.

Maria João Fernandes

Vanessa Vale Cunha

1. Independence and impartiality; 2. the concept of “reasonable doubt”; 3. the concept of “material impact or undue influence”; 4. the causal link.

1. The mediator must be independent and impartial[1].

The impartiality of the mediator is reflected in his equidistance and neutrality, both in relation to the parties in dispute and to the object of the dispute. Indeed, the mediator cannot take a side, that is, he cannot defend, represent or advise any of the parties[2].

This principle is not to be confused with the principle of independence of the mediator, insofar as the latter aims at the “free and uncompromised exercise of the function”[3]. The principle of independence manifests itself in two dimensions[4]. On the one hand, in its external dimension, the principle of independence is reflected in the fact that there is no bond of subordination on the part of the mediator in relation to any instructions from third parties or even from the parties themselves. On the other hand, it has an internal dimension, which relates to the personal values and interests of the mediator. The mediator, in his mission of helping the parties to reach an agreement, has to distance himself from his own interests, prejudices or judgments. An example of this is the legal consecration, in the Portuguese legal system, in Article 6, paragraph 2, of the Mediation Law, of a duty of impartiality of the mediator. This dimension of the principle is concretized, in a very visible way, in the neutrality of the mediator in relation to the outcome of the procedure[5].

Although the mediator has no decision-making power over the dispute, he plays a fundamental role during mediation, since he leads the parties towards agreement. Naturally, there will therefore be “risks of manipulation arising from the role of the facilitator”[6]. It is thus desirable that the mediator act as innocuously as possible, but it is not possible or even desirable to “robotize” the mediator[7]. Although tenuous, it is necessary to draw a line between the mediation techniques used by the mediator and a real violation of his duties, namely those of impartiality and independence.[8]

2. It should be noted at the outset that the concept of “justifiable doubts” refers to the independence and impartiality of the mediator. Taking into account the Report of the Working Group[9] , no distinction is made between the duty of disclosure of an arbitrator and of a mediator, for the purposes of interpretation of the Singapore Convention. In fact, it may be said that this is a common requirement as regards arbitrators and that the Singapore Convention wished to apply also to the mediator, with the aim of endowing him with the minimum requirements of independence and impartiality which the parties are willing to accept[10]. Therefore, it is safe to resort to international arbitration guidelines for the determination of what will be “justifiable doubts”, namely the IBA[11] Guidelines on Conflicts of Interest in International Arbitration[12]. One may admit, then, that a personal or professional relationship of the mediator with one of the parties, any interest of the mediator in the result of the mediation (including financial interests) or even the fact that the mediator, or a member of the entity to which he belongs, has provided services, other than mediation, to one of the parties, are situations which may give rise to “justifiable doubts” as to the impartiality and independence of the mediator[13].

In any case, these are merely exemplary situations. In fact, the concept of “justifiable doubts” always implies an objective assessment of the actual circumstances existing in the specific case. In the context of each situation, the “justifiable doubts” which may arise as to the independence and impartiality of the mediator should be assessed according to standards of normality, experience and rationality, in the eyes of the bonus pater familiae[14] .

In short, it may be stated that the concept of “justifiable doubts” as to the independence and impartiality of the mediator requires that these are objectively justified[15] and are not based on conjecture or supposition[16].

3. The concepts of “material impact” and “undue influence” could be understood as meaning that the parties must prove that the mediator has committed a serious breach of the rules applicable to mediators or mediation (see Article 5(1)(e)). However, this does not seem to be the interpretation that should be made of these concepts in the light of the Singapore Convention. In this sense, we find the Report of the Working Group[17], where the distinction between the grounds to contest the mediation agreement for serious breach of the rules applicable to mediators or mediation, and the grounds relating to non-disclosure of the circumstances that could give rise to justified doubts as to the independence and impartiality of the mediator, was stressed. Thus, within the scope of paragraph f), what is relevant is the simple fact that the mediator has not revealed to the parties the circumstances that could give rise to justifiable doubts as to his independence and impartiality, thus dispensing with an analysis of the concrete conduct of the mediator, as is the case in paragraph e).

The party challenging the mediation agreement must prove to the court that the non-disclosure of circumstances that could give rise to reasonable doubts as to the mediator’s independence and impartiality had a “material impact” or an “undue influence” on the settlement of the dispute[18].

Regarding the concept of “material impact”, it has been understood that, given the context of each situation, the impact that non-disclosure causes on the party challenging the agreement must reach a substantial or significant level[19]. To this extent, “undue influence” may be defined as a type of pressure exerted on one of the parties. However, in the context of the rule, it has been understood that, in the measurement of this concept, it is particularly important to determine, in concrete terms, which powers or advantages were withdrawn by one of the parties (due to such “undue influence”) and that, in this way, placed the party that intends to challenge the agreement in a disadvantageous position.[20]

In the same way that, in most cases, the independence of the mediator is not assessed in the abstract, but only in the concrete case[21], we believe that also as regards these concepts, its verification may only be made on a case-by-case basis. Even so, we cannot fail to point out that a possible factor to take into account in this case-by-case assessment is trust in the mediator. Considering that the success of the mediation depends on the fact that both parties trust the mediator to identify, clarify and explore interests, positions and options, in order to help them to create their own solution, the fact that the mediator does not reveal a possible conflict of interests may jeopardise the trust that the parties place in him[22].

Thus, the concepts of “material impact” and “undue influence” must be analysed in order to know whether the non-disclosure of circumstances that could give rise to founded doubts as to the independence and impartiality of the mediator, still generates substantial and significant confidence in the mediator on the part of the party that intends to challenge the agreement. That is, to know whether, even if the mediator has not disclosed certain circumstances that would call into question his independence and impartiality, the party still has confidence in him. Moreover, we consider that, in essence, once this balance is made (between the non-disclosure and the confidence in the mediator), the essential translates into a balance between the interests of the parties and the impartial and independent conduct that the mediator must adopt[23] – as, moreover, is clear from the Report of the Working Group[24] .

It is important to note, however, that, in cases where the mediation agreement is drawn up without substantial intervention or facilitation on the part of the mediator – the parties being able, if they so wish, to be represented, throughout the process, by their lawyers -, the elements of “material impact” or “undue influence” may not be fulfilled[25] . That is to say, if the mediator intervened little or not at all in the mediation, it will be more evident that the non-disclosure, by the mediator, of circumstances that could give rise to founded doubts as to his independence and impartiality, does not fulfil the concepts of “material impact” or “undue influence”, taking into account what was referred to above. Even so, we must point out that, even in these situations, a case-by-case assessment will be necessary, given the silence of the rule as to specific assessment criteria.

There will no longer be a “material impact” or “undue influence” in cases where the circumstances that could give rise to reasonable doubts as to the independence and impartiality of the mediator have always been known to the party wishing to challenge the mediation agreement[26].

4. The provision also requires the establishment of a causal link between the non-disclosure of “circumstances that raise justifiable doubts as to the mediator’s impartiality or independence” and the conclusion of the agreement, demonstrating that the party would not have concluded the agreement if the mediator had disclosed those circumstances.

It is common to state that the causal link required here is distinct from the causal link referred to in Article 5, 1 (e), since the latter requires that the conduct of the mediator has a material impact on the active participation of one of the parties in mediation[27] . Differently, the causal link referred to in Article 5,1 (f), translates into the idea that, if one of the parties had known of the circumstances that could give rise to justifiable doubts as to the independence and impartiality of the mediator, he would not have concluded the agreement, or, making an extensive interpretation of the norm, would not even have opted for the initiation of the mediation process.

The Portuguese Law of Mediation, in its Article 27, establishes a duty of revelation of circumstances that may put in question the independence, impartiality or exemption of the mediator[28]. The mediator is required to disclose “at an early stage (before accepting his choice or appointment in a mediation procedure) or already in the course of the mediation procedure (as soon as he is aware of them) all circumstances that may give rise to reasonable doubts as to his independence, impartiality and exemption”[29].

It follows that, if the mediator, at an early stage, disclosed the suspicious facts[30], the party could have chosen not to start the mediation (principle of voluntariness). Similarly, and taking into account that the duty of disclosure remains throughout the process (Article 27, paragraph 2 of the LM)[31], if the mediator, during mediation, reveals to the parties such circumstances, again, by virtue of the principle of voluntariness, one of the parties may withdraw from the process and, consequently, not conclude the agreement.

The principle of voluntariness embodies a fundamental principle of mediation that can be analysed in four dimensions[32]. In the voluntary recourse to the mediation process, in the freedom to abandon mediation, in the conformation of the agreement which puts an end to the dispute and, finally, in the freedom to choose a mediator[33]. Thus, this interpretation is, as already mentioned, in accordance with the principle of voluntariness, to the extent that the circumstances that could raise founded doubts as to the independence and impartiality of the mediator are susceptible of conditioning the will of the parties to initiate the mediation process.

Another take on article 5, no. 1 (f)

Rita Marques

Joana Graça

Introduction; Analysis and article 5(1)(f): Grounds for refusal of requested Measures; Impartiality and independence: The duty to disclose and the concept of “reasonable doubt”; Non-disclosure and the supervening impact on the conclusion of the agreement; Concluding remarks.

As a starting point for the concrete examination of Article 5(1)(f) of the Singapore Convention, it is necessary to place it in context and allude to the preparatory work undertaken by the Working Group responsible for drafting it.

The Convention is characterised by having a perfectly delimited scope since it only applies to the enforcement of international commercial agreements.

According to the Singapore Convention, when a party concluding an agreement and residing in any of the signatory countries wishes to enforce the agreement before a competent authority, it must fulfil the requirements of Article 4, i.e. the submission of the signed agreement and proof that the agreement originated in mediation.

However, as set out in Article 5, there are situations in which the party against whom the agreement is sought to be enforced may request the non-enforcement of the agreement, based not only on substantive reasons, reasons related to the terms of the agreement or reasons invocable by the competent authority, but also on reasons directly related to the conduct of the mediator.

Focusing especially on paragraph f) of this article, which translates into the mediator’s failure to reveal circumstances that could give rise to justifiable doubts as to his independence and impartiality, some considerations for and against this understanding may be made. Miglé Žukauskaitė explains: “on the one hand, adding more safeguards can prevent unlawful agreements from being enforced. Hence, more states will be willing to become parties to the Convention. On the other hand, the Convention sets several grounds for refusal that require an in-depth analysis of the facts of the mediation. If these grounds were to be invoked frequently, it could render the Convention dysfunctional in practice”[34]. He further adds, in his view and specifically on the grounds relating to the conduct of the mediator, that these prove repetitive and unnecessary, for four reasons: (1) if the parties were actually affected by the conduct of a mediator to such an extent that there was no consensus, the mediation agreement would achieve no effect and would be void as a contract; (2) the mediator, unlike a judge or arbitrator, does not have a decisive power over the final outcome; (3) the effective control over the validity of a mediation agreement and the evaluation of evidence is delegated to the competent authorities, which, again, are not necessarily courts; (4) the reasons listed give the parties, who participate in mediation and who have the right at any time to withdraw from the process, a way to misuse this clause to try to evade or postpone their obligations[35]. Although we understand the concerns listed by this author, we disagree with his view, as we shall see below.

The extent of the arguments just mentioned serve to understand, in a first moment, that paragraph f) of Article 5.1 of the Singapore Convention is, in itself, quite complex, since it makes the rejection of the measures requested by Article 4 depend on a set of factors that in unison converge in a posture said to be “inadequate” of the mediator responsible for the mediation process in question, but without defining limits or characterising the concrete behaviours. Thus, it remains for us to analyse the article and investigate, in the light of International and national law, the challenges involved in its interpretation.

The first point we will address is related to the principles of impartiality and independence. As we well know, mediation is an alternative means of dispute resolution that may avoid the need to resort to judicial proceedings. We also know that mediation happens with the intervention and help of an impartial and independent third party, the mediator, who guides the parties in the mediation process, helping them to re-establish communication and dialogue (plays a facilitating role) and to focus on the discovery of their interests, always aiming at their cooperation, delegating to them the responsibility of resolving the conflict and, consequently, shaping a final agreement that is beneficial for both and simultaneously guarantees their equality[36] .

In this sense, we consider that such elements mentioned above, which are rooted in the principles of impartiality and independence underlying the mediation process, assume significant importance together with the principles of confidentiality and voluntariness of the parties. This is because, to some extent, we recognise that the credibility and integrity of the mediation process almost always depends on the neutrality, impartiality and independence of the mediator, not only as important guarantees for a fair, objective, constructive and comprehensive solution, but also as guarantees of the equality of the parties in the mediation process[37].

It is certain that the mediator does not perform the functions of a judge in judicial proceedings or of an arbitrator in arbitration proceedings, however, underlying the functions of any of the figures in question, is the duty to act under the aegis of these two elements. In this sense, we can find a communicating bridge between the mediation process and the arbitration process, in relation to these concepts. Thus, we may also have as a basis the understandings of António Menezes Cordeiro, when he points out that “independence translates into an objective quality, expressed in the fact that the arbitrator does not depend on anyone and, in particular, on none of the parties. Impartiality is expressed in a subjective quality: the arbitrator does not favour anyone; he only applies the law in the light of the facts which are demonstrated”[38].

Thus, although the mediator does not influence the decisions taken by the parties, it is well known that his guidance is essential to reduce the differences between them, so it is crucial that he is credible and exudes confidence, being extremely important that his conduct and intervention are always guided by impartiality and independence. Thus, as Mariana França Gouveia well concludes, in relation to the principle of impartiality, the mediator “cannot have (…) any connection with the parties”, that is, he must act with the greatest possible impartiality and avoiding the intention of favouring or preferring a certain party to the detriment of the other, refraining from influencing and imposing any solutions and remaining equidistant in relation to the mediated parties. On the principle of independence, the author explains that the mediator is required “independence inherent to his function and (…) responsibility for his acts”, and further, that he cannot have “any personal interest in the mediated conflict”, that is, being totally independent from the parties, or third parties, or from any bodies (that is, of any external influence), emancipating himself from any interest or connection to the litigation that he is mediating, be it of a professional or personal nature, which may put pressure and put in question the exercise of his function. Finally, Mariana França Gouveia concludes with the following statement, with which we fully agree: “the mediator does not decide, but his intervention in the litigation may be determinant, in that he leads the parties to the agreement”[39]. In Portugal, the Law of Mediation enshrines both principles, respectively, in Articles 6 and 7, that are also present in the Law of Small Claims Courts, the Law of Criminal Mediation and the European Code of Conduct for Mediators.

Inherent to the application and guarantee of these principles, is the duty of disclosure, by the mediator, of any circumstance that raises “justifiable doubts” as to his independence and impartiality, either at the time of his selection, or during the mediation process (in the face of any supervening information that compromises these).

The Singapore Convention does not indicate what is meant by “justifiable doubts”, but it should be noted that it was once again the subject of discussion. This time with regard to the adjective to be used in this context, ranging from “any doubt”, “serious doubt”, “significant doubt” to “unequivocal doubt”. However, we agree with Michel Kallipetis when he argues that “‘justifiable’ is an intelligent adjective, because it encompasses the concept of judicial determination and excludes arguments based on a subjective evaluation of the party that seeks to invoke it”[40]. This is because the party invoking this ground of exclusion should not base its claim on its perceived lack of impartiality and independence.

In fact, the party in casu must justify, and further prove, that objective doubts are at stake as to the lack of those elements. And because the Convention does not define the illustrative standards for any of the provisions in the articles and as there is no law on which the States may rely, the burden to define these standards is transferred to the competent authorities in each State. Here we can once again call to mind the Portuguese Mediation Law, namely, its article 27, (impediments and excuses of the mediator of conflicts), that establishes a list of relevant circumstances for an exercise of introspection and self-evaluation of the mediator about his impartiality and independence, e.g. those that translate into a family or personal relationship; a direct or indirect financial interest in the result of the mediation; a current or previous professional relationship with one of the parties, being that these are considered as those that are more likely to influence and put in question the maintenance of the two fundamental principles[41].

These circumstances create justifiable doubts, since, as mentioned above, impartiality and independence must be guaranteed in any mediation process. In addition to these relations, it may be the case that the mediator withdraws some interest from a certain solution, favouring the side that most suits him. A preventive mechanism is thus envisaged to ensure such principles[42], because if the impartiality or independence of the mediator is compromised, the entire mediation process will feel the negative impact embodied in the lack of confidence of the parties and consequent refusal to proceed with the mediation process, combined with the frustration of any agreement that could arise therefrom, calling into question the enforceability itself, since it denies the fundamental principles of the process.

In addition to the circumstance that may create justifiable doubts as to independence and impartiality, subparagraph (f) presents objective criteria as to the consequence that such justifiable doubts must have on the party that wishes to reject enforcement. The non-disclosure of the mediator needs to have a relevant impact or undue influence on one of the parties, without which they would not have concluded the agreement. That is, there has to be a strong causal link between the failure to disclose and the parties’ consent to enter into the mediation agreement. But what is the meaning of “relevant impact” and “undue influence”? Let us see.

In fact, the original text referring to the Mediation Convention uses the expression “material impact”, to which we attribute the equivalence, in Portuguese, to “relevant impact”, because, although the interpretation of the designation “material” diverges from context to context, depending on the international jurisprudence, the majority of cases converge on the idea that the most common meaning will be a significant/relevant change within the factual matrix of the case.

Opposite to this divergence is the concept of “undue influence”, as it is certainly a concept known in the scope of Common Law jurisdictions, as the situation in which an individual with more power or advantage exerts inappropriate pressure on the weaker party to induce it to enter into a contract against its will[43], something that will rightly justify the unenforceability of an agreement. Taking this second concept into account, and as an example to illustrate the scope of its application, let us focus our attention on the American case Olam v. Congress Mortgage Co[44].

Very briefly, it depicts the case of the plaintiff, aged 65, who suffered from various medical conditions and who claimed in court that during the mediation she felt dizzy, weak and in various pains. She also alleged that all the lawyers, including hers, together with the defendants, pressured her to reach an agreement at 1 am, during a mediation that lasted about 15 hours. The Court in question decided that these arguments did not sustain a situation of “undue influence” justifying the rupture of the agreement. Although this example does not coincide perfectly with the question under analysis, it is illustrative of how the conduct of a mediator may be instrumental[45], that is to say, it illustrates the extent of the influence necessary to demonstrate improper conduct, within the application of Article 5, no. 1 (f).

In fact, the key word here is: demonstrate. Based on the case at hand, it is possible to highlight the importance of demonstrating that the party does not want the enforcement of the agreement only due to a misconduct perpetrated by the mediator. For this, the existence of a causal link between the omission of significant circumstances and the concrete conclusion of the agreement must be proven, and this proof cannot be based on a merely presumptive fact, nor can mere superficial situations be identified only as an argument to get out of an agreement that now the party regrets having concluded[46]. From this, we can draw two ideas: on the one hand, the requirement of this proof allows the parties to reduce the possibilities of abusing this clause and, on the other hand, the other party is not left unprotected in a situation like the one we have just described.

In the travaux préparatoires of the Convention, the discussion within the Working Group focused incisively on the types of failings in the mediator’s conduct that could warrant a refusal to render the agreement enforceable and on the need to contemplate a provision comprising the mediator’s conduct as justification for refusal. Despite heated debate, a conclusion was reached: “as delegates searched for a proposal that met everyone’s concerns, it was suggested that the scope of challengeable behaviour be limited to when it has a ‘direct impact on the settlement agreement’, to ‘exceptional circumstances’, and to when the conduct has a ‘material impact’ or ‘undue influence'”, because only through this guarantee (supported by proof of the existence of these elements) could the parties be safeguarded. On the one hand, there is protection of the parties if they were treated unfairly by the mediator and, on the other hand, there is a reduction of the risk of the parties exploiting these guarantees to escape the commitments[47]. Thus, and as Shnabel notes, “article 5(1)(f) creates an autonomous standard that can be relied upon regardless of whether any “applicable” standards required disclosures “[48].

In short, in our view, subparagraph f) creates an important and significant limit in situations like these, that is, when there are inappropriate behaviours on the part of the mediator which, although rarely affecting the mediation process, as Abramson points out, could hypothetically arise and should be avoided[49]. This is because the mediator is in a vulnerable situation between having to guide but not taking control of the resolution, having to assist but not to participating (too much) in the communication and, furthermore, if there are external factors that influence the perspective on the parties or the dispute, such impartiality and independence may be jeopardised and, for that reason, all circumstances that may unbalance the proper conduct of the mediator should be disclosed.

However, in order to make it possible to avoid the unjustified refusal of an agreement, in addition to establishing that the circumstances must be disclosed, paragraph (f) outlines what has to happen for this to justify the non-enforceability of the agreement. Also, the requirements of relevant impact or undue influence prove to be crucial, because they end up narrowing the path of possible refusal to enforceability and this limit comes in line with what the Singapore Convention intends in the first place: to make mediation a legitimate, official and recognised form of dispute resolution. And for this to be possible, the facility to obstruct its enforceability cannot be a premise.

As final considerations and reaffirming our positive opinion regarding the consecration of this subparagraph f), let us recall the famous case of Chan Gek Yong v. Violet Netto[50], which portrays the importance of regulating in a strict manner the grounds for refusal of mediation agreements and the evidence offered for the same purpose before the Court.

[1] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 3rd edition, Almedina, 2020, pp. 59-60.

[2] Pedro Morais Martins, “Meios Alternativos da Resolução de Litígios”, in III Conference – Alternative Means of Dispute Resolution, Ministry of Justice – General Directorate of Extrajudicial Administration, 2004, p. 133.

[3] Dulce Lopes and Afonso Patrão, Lei da Mediação Comentada, Almedina, 2014, pp. 49-50.

[4] Dulce Lopes and Afonso Patrão, Mediation Law Commented, 2014, pp. 49-50.

[5] Pedro Morais Martins, ” Meios Alternativos da Resolução de Litígios “, 2004, p. 133.

[6] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 2020, p. 60.

[7] Anabela Quintanilha, “Um olhar sobre a mediação com menores na Lei Tutelar Educativa”, in Volume Comemorativo dos 10 anos do Curso de Pós-Graduação “Proteção de menores – Prof. Doutor F. M. Pereira Coelho”, 2009, pp. 165-183, p. 180.

[8] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, Contemporary Asia Arbitration Journal, no. 2, volume 13, 2020, pp. 436-477, p. 445.

[9] UNCITRAL, “Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6-10 February 2017)”, paras 76-78, 86.

[10] Bárbara Sánchez López, “La Eficacia Transfronteriza de los Acuerdos de Mediación y la Convención de Singapur: ¿Grandes Esperanzas?”, in Cuadernos de Derecho Transnacional, volume 12, no. 2, 2020, pp. 1406-1445, p. 1443.

[11] The IBA Guidelines on Conflicts of Interest, although they are not legal rules, are a reference regarding the interpretation of the arbitrators’ duty of disclosure. See Gary B. Born, International Arbitration: Law and Practice, Kluwer Law International, 2012, pp. 132-133.

[12] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, 2020, p. 466.

[13] UNCITRAL, “Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6-10 February 2017)”, paras 20-22.

[14] This is “the standard concept used in law as a reference point for the diligence required in conduct (…) this being the paradigm of the average citizen, reasonably careful, attentive, committed, qualified and skillful”. Cfr. Ana Prata, Dicionário Jurídico, volume 1, 5th edition, Almedina, 2009, p. 215.

[15] The limited scope of this concept was intended to establish an objective standard of analysis for “justifiable doubts”. Cf. Khory Mccormick and Sharon S.M. Ong, “Through the Looking Glass: An Insider’s Perspective into the Making of the Singapore Convention on Mediation”, Singapore Academy of Law Journal, no. 31, 2019, pp. 520-546, p. 544.

[16] Bárbara Sánchez López, “La Eficacia Transfronteriza de los Acuerdos de Mediación y la Convención de Singapur: ¿Grandes Esperanzas?”, 2020, p. 1443.

[17] UNCITRAL, “Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-seventh Session (Vienna, 2-6 October 2017)”, para 97.

[18] Michel Kallipetis, “Singapore Convention Defences Based on Mediator’s Misconduct: Articles 5.1(e) & (f)”, Cardozo Journal of Conflict Resolution, 2019, pp. 1197-1209, p. 1202.

[19] Nadja Alexander and Shouyu Chong, The Singapore Convention on Mediation – a Commentary, in Kluwer Law International, 2019, pp. 127-128.

[20] Rick Brigwood, “Undue Influence: ‘Impaired Consent’ or ‘Wicked Exploitation’?”, Oxford Journal of Legal Studies, volume 16, 1996, pp. 503-515, pp. 503-509.

[21] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 2020, p. 61.

[22] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, 2020, pp. 443 and 468-469.

[23] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, 2020, p. 468.

[24] UNCITRAL, “Report of Working Group II (Dispute Settlement) on the Work of Its Sixty-sixth Session (New York, 6-10 February 2017)”, para 78.

[25] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, 2020, p. 469.

[26] Khory Mccormick; Sharon S.M. Ong, “Through the Looking Glass: An Insider’s Perspective into the Making of the Singapore Convention on Mediation”, 2019, p. 544.

[27] Jeffrey Lung, “Violation of Mediators’ Duties as A Ground of Non-Enforcement Under the Singapore Convention”, 2020, p. 469.

[28] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 2020, p. 61.

[29] Dulce Lopes and Afonso Patrão, Mediation Law Commented, 2014, p. 162.

[30] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 2020, p. 60.

[31] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 2020, p. 61.

[32] In Portugal, authors do not usually identify the freedom of choice of the mediator as a fourth dimension of the voluntariness principle. On this subject, see, among others, Joana Campos, “O princípio da confidencialidade na mediação”, Scientia Ivridica – Revista de Direito Comparado Português e Brasileiro, volume LVIII, nr. 318, 2009, pp. 311-333, p. 314.

[33] Dulce Lopes and Afonso Patrão, Mediation Law Commented, 2014, pp. 28-29.

[34] Miglé Žukauskaitė, “Enforcement of Mediated Settlement Agreements”, in Vilnius University Press, 2019, p. 213.

[35] Miglé Žukauskaitė, “Enforcement of Mediated Settlement Agreements”, in Vilnius University Press, 2019, p. 213.

[36] Mariana França Gouveia, Curso de Resolução Alternativa de Litígios, 3rd edition, Almedina, 2019, pp. 56-57.

[37] Cf. Julie Barker, “International Mediation – A Better Alternative for the Resolution of Commercial Disputes: Guidelines for a U.S. Negotiator Involved in an International Commercial Mediation with Mexicans”, 19 Loy. L.A. Int’l & Comp. Rev. 1, 1996, pp. 9-11.

[38] António Menezes Cordeiro, Tratado de Arbitragem – Comentário à Lei 63/2011 de 14 de Dezembro, Almedina, 2015, p. 137.

[39] Mariana França Gouveia, Alternative Dispute Resolution Course, 2019, pp. 59-60.

[40] Michel Kallipetis, “Singapore Convention Defences Based on Mediator’s Misconduct: Articles 5.1(e) & (f)“, Cardozo Journal of Conflict Resolution – Singapore Mediation Convention Reference Book, 2019, p. 1202.

[41] Vide Law no. 29/2013, of 19 April – General principles applicable to mediation – Civil and commercial mediation.

[42] University of São Paulo, “Independence and Impartiality of Arbitrators”, 2014, p. 2, available at: https://edisciplinas.usp.br/pluginfile.php/214018/mod_resource/content/0/AULA%20imparcialidade%20arbitros.pdf.   

[43] DOCPRO LEGAL, “What is Undue Influence under Contract Law (with Examples)?”, 2021, available at: https://docpro.com/blog75/what-is-undue-influence-under-contract-law-with-examples.

[44] Olam v. Congress Mortg. Co. of 15/10/1999, No. C95-2806 WDB.

[45] Nadja Alexander and Shouyu Chong, “The Singapore Convention on Mediation: A Commentary”, in Kluwer Law International, 2019.

[46] 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, July 2019, p. 53.

[47] As referred to by Hal Abramson, “New Singapore Convention on Cross-Border Mediated Settlements: Key Choices”, in Mediation in International Commercial and Investment Disputes, 2019, p. 15.

[48] Timothy Schnabel, “The Singapore Convention on Mediation: A Framework for the Cross-Border Recognition and Enforcement of Mediated Settlements”, 2019, pp. 53-54.

[49] Hal Abramson, “New Singapore Convention on Cross-Border Mediated Settlements: Key Choices”, 2019, p. 15.

[50] See Chan Gek Yong v. Violet Netto, 2018, No. 751, as portrayed in The Singapore Convention on Mediation: A Commentary, which illustrates the pending dispute between Chan and his lawyer Violet Netto, on the allegation of professional negligence, and the ensuing mediation process, which resulted in an agreement. One week after signing the settlement agreement, Chan informs the Court that she wants to continue with other court proceedings, also concerning Violet, ignoring the settlement agreement previously signed in the mediation process. When confronted with the mediation agreement, Chan alleged that the mediators in the mediation process persuaded her to accept the agreement and rushed her into accepting it, as she had not signed it by the end of the mediation session that day; furthermore, she alleged that the mediators had said that “if they do not resolve the matter, there is a possibility of going to court again”, which, in her view, would entail further costs. Considering all the elements in question, the Court decided that there was no reason to understand that Chan was being pressured, as the mediators were only providing the warning that such a possibility was real, and the decision to sign or not the agreement was entirely in the hands of Chan. This case portrays the sensitivity of the issue of the grounds for rejection of the measures requested for enforceability of the agreement, since if not controlled minimally, in an objective manner, any reason could result in the rejection of the agreement and, consequently, would lead to a terrible insecurity in the use of mediation as an alternative means of dispute resolution.