The Singapore Convention on Mediation and Its Impact

Published: March 2021
By: Rosine M. Plank-Brumback

A new international instrument has joined the ranks of multilateral treaties governing the resolution of cross-border commercial disputes. Its official name is the United Nations Convention on International Settlement Agreements Resulting from Mediation. The treaty enables the enforcement of mediated settlements by its ratifying states. It aims to promote the use of mediation as an alternative to litigation and arbitration, to preserve commercial relationships, as well as to facilitate broadly international trade and investment, contribute to harmonious international economic relations, and promote access to justice for all by bringing greater certainty and stability to the international framework on mediation.

The treaty is known as the Singapore Convention (the “Convention”) as Singapore’s government played a key negotiating role and hosted the treaty signing ceremony on August 7, 2019. To date, 53 States have signed the Convention, including the United States, China, India, and South Korea. By signing, a State shows it intends to take steps to implement and be legally bound domestically by the treaty; i.e., ratification at the “national” level. The Convention entered into force on Sept. 12, 2020. To date only 6 States (Belarus, Ecuador, Fiji, Qatar, Saudi Arabia, and Singapore) are Parties to the Convention having ratified it at the “international” level; i.e., expressing to the international community they undertake the treaty’s obligations to enforce mediated settlement agreements, by “depositing” (or submitting) their ratification instruments with the UN.

The Convention applies to international settlement agreements resulting from mediation that are concluded in writing by the parties (to the settlement agreement) to resolve a commercial dispute. Specifically excluded from the Convention’s scope are: settlement agreements concluded by a consumer for personal, family or household purposes; settlements relating to family, inheritance or employment law; court judgements; and arbitral awards. States may also exclude from the Convention’s application settlement agreements to which they or any of their governmental agencies are a party, by entering a reservation.

A settlement agreement is defined as “international” generally when at least two parties to the agreement have their places of business in different States. A settlement agreement is “in writing if its content is recorded in any form” including by electronic communication. Mediation is defined 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.”

Each State Party to the Convention is obligated to enforce a settlement agreement “in accordance with its rules of procedure and the conditions laid down in” the Convention. Normally a party seeking compliance with a mediated settlement agreement has to litigate the matter as a contractual dispute. Under the Convention, the party only needs to supply to the “competent authority” of the enforcing State Party where relief is sought, the agreement signed by the parties and evidence that the settlement agreement resulted from mediation; e.g., the mediator’s signature on the agreement or the administering institution’s attestation.

The competent authority of the enforcing State Party may refuse to grant relief if the party against which relief is sought furnishes proof, for example, of the incapacity of a party to the settlement agreement, its invalidity, or circumstances that raise justifiable doubts about the mediator’s impartiality or independence. Other grounds for denying relief are public policy or the subject matter not capable of mediated settlement under the enforcing State’s law.

The Convention was the negotiating work product of many countries with different legal, social, and economic systems. It necessarily represents compromise and sometimes constructive ambiguity. Importantly, the enforcement of settlement agreements does not depend on the seat of the mediation process (it can be online) or whether the process was formally labeled as mediation. The Convention’s impact will depend of course on how it is operationalized, especially as much relies on the enforcing State’s procedural rules. The Convention does not establish professional or ethical rules of conduct for mediators or the mediation process but references the applicable national standards. These standards may differ, particularly for conflict of interest. There is no definition of “competent authority” nor provision for Parties to indicate which is their national competent authority for Convention purposes. Moreover, businesses are able to contract out of the Convention in their commercial contracts.

The Convention’s impact also depends on how many more states ratify it. A big lacuna is that no EU country has signed the Convention as the EU has its own enforcement directive. Local mediators and mediation attorneys may take greater pride in their work knowing that mediation is gaining in international respectability, enforceability, and recognition. But the practical extent to which business clients can enforce settlement agreements by pursuing assets of non-compliant parties in Belarus or Fiji is questionable. Perhaps the biggest value and impact of the Convention is that its mere existence deters non-compliance with mediated settlement agreements.

 


Rosine M. Plank-Brumback is a Florida attorney, trade policy consultant, and Consulting Senior Fellow at Georgetown University’s Institute of International Economic Law. She is a member of the International Panel of Arbitrators of the International Centre of Dispute Resolution of the American Arbitration Association and is on the rosters of arbitrators under several international free trade agreements. She has held positions at the Organization of American States, the GATT Secretariat, the U.S. Mission to the European Communities, and the U.S. Foreign Agricultural Service.

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/  

MAY APPOINTMENTS TO BE FILLED

ABA House of Delegates:  Two lawyers to serve two-year terms commencing August 2021, at the conclusion of the ABA Annual Meeting.  Applicants must also be ABA members.

Florida Legal Services, Inc. Board of Directors:  One lawyer to serve a three-year term commencing July 1, 2021.  This 15-member board provides judicial advocacy through co-counseling with local program attorneys and volunteer pro bono attorneys and provides legislative and administrative advocacy on policies impacting the legal rights of the poor, as well as providing civil legal assistance to indigent persons who would not otherwise have the means to obtain a lawyer.

Florida Lawyers Assistance, Inc. Board of Directors:  Three lawyers and two non-lawyers to serve three-year terms commencing July 1, 2021. This 15-member Board assists the legal community in securing counseling and treatment for emotional and chemical dependency problems for lawyers.

Persons interested in applying for this vacancy may click here to download the Application for Special Appointment or should call Bar headquarters at (850) 561-5757, to obtain the application form.  Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida, 32399-2300 or submitted via e-mail to specialapptapp@floridabar.org no later than the close of business on Friday, April 16, 2021.  Resumes will not be accepted in lieu of the required application.  The Board of Governors will review all applications and may request telephone or personal interviews.

FLORIDA BAR PRESIDENT-ELECT CANDIDATES FORUM

The Florida Bar will present a live president-elect candidates’ forum on February 22, from 12-12:30 p.m., via Zoom, to provide Florida lawyers an opportunity to virtually meet the candidates: Steve Davis of Miami and Gary Lesser of West Palm Beach. Davis and Lesser, both current members of the Board of Governors, will present opening and closing statements about their qualifications and visions for the Bar. They will also answer questions submitted in advance by Bar members. The forum will be moderated by former Justice Peggy Quince who served on the Florida Supreme Court from 1999-2019.

Visit the forum webpage for additional information.

See the Bar News story here.

9TH CIRCUIT JNC NOTICE OF COURT VACANCY

Gov. Ron DeSantis asked the Ninth Circuit Judicial Nominating Commission to provide him with names of highly qualified nominees for one county judge vacancy on the Orange County Court bench created by the elevation of Judge Gisela Laurent.

The Commission requires interested candidates to submit a complete application for consideration. Applicants must have been a member of the Florida Bar for the preceding five years and must be a registered voter. The individual appointed must reside in Orange County at the time that he or she is appointed.

Applications may be downloaded from the Office of the Governor at www.flgov.com. Applicants must include a recent photograph, preferably as a cover page. PLEASE NOTE: Effective July 1, 2020, the application has been substantially revised. Please be sure to download and use the current application. Any other version is obsolete and will not be accepted.

Applicants must submit a complete application to Jeff Aaron, at jeff.aaron@gary-robinson.com by Friday, Feb. 19, 2021, at Noon (12 p.m.). The Commission will be holding interviews on Friday, Mar. 5, 2021. The Commission encourages applicants to submit their applications as soon as possible. Any application received after the noon deadline will not be considered. Applicants who are in need of guidance may contact the Chair. Applications must be in .pdf form with a second .pdf version of the application with personal information not subject to public disclosure – such as the social security number – redacted as permitted by Section 119.071 of the Florida Statutes. The two .pdf files should be named in a “last name.first name” format. For example: Bob Smith should submit two file names: (1) Smith.Bob.pdf and (2) Smith.Bob-REDACTED.pdf. No paper applications will be accepted.

To assist the Commission in its review of applications, all questions on the application must be fully and completely answered. The submitted application must include the financial disclosures, a writing sample, and a recent photograph. Applicants must also include current contact information, including e-mail addresses, for all judges, co-counsel, opposing counsel, and references to facilitate the background investigation that members of the Commission will conduct.

Members of the bench, the Bar, and the public are encouraged to contact the members of the Commission concerning applicants for judicial positions. Letters of recommendation should be e-mailed or mailed to all Commissioners at any time before the interviews begin:

9th Circuit JNC Commissioners

Jeff Aaron, Chair
Gray Robinson, P.A.
301 E. Pine St., Ste. 1400
Orlando, FL 32801
jeff.aaron@gray-robinson.com
Office: 407-244-5644

Josh Grosshans
The Grosshans Group, PLLC
884 S Dillard Street
Winter Garden, FL 34787
josh@ggrouplaw.com
Office: 407-900-3261

Robert Holborn
Debevoise & Poulton, P.A.
1035 S. Semoran Blvd., Ste. 1010
Winter Park, FL 32792-5512
holborn@debevoisepoulton.com
Office: 407-673-5000

Matthew A. Klein
Signature Aviation
13485 Veterans Way, Ste. 600
Orlando, FL 32827
matthew.klein@signatureaviation.com
Office: 407-206-5291

Chris Posteraro
Walt Disney World Legal Dept.
PO Box 10000
Lake Buena Vista, FL 32830-1000
cposteraro@hotmail.com
Office: 407-828-1130

Michael A. Sasso, Vice-Chair
Sasso & Sasso, P.A.
1031 W. Morse Blvd., Ste. 120
Winter Park, FL 32789-3774
masasso@sasso-law.com
Office: 407-644-7161

Tim Schulte
Zimmerman Kiser Sutcliffe, P.A.
315 East Robinson Street, Suite 600
Orlando, FL 32801
tschulte@zkslawfirm.com
Office: 407-425-7010

Tara Tedrow
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Drive
Orlando, FL 32801
Tara.Tedrow@lowndes-law.com
Office: 407-418-6361

Interviews will be held on Mar. 5, 2021, at the law offices of GrayRobinson, P.A. in Orlando. Applicants will be notified by email as to their interview time and the address once the schedule is made after the application deadline. A complete interview schedule will be available on the Governor’s website at a later time. If there are any questions about the application process, please contact the Chair of the JNC, Jeff Aaron, at 407-244-5644.