Mediation as a Tool for Conflict Management
Presented by Justice Madan Lokur, Dr. Judith Knieper, Ms. Natalie Morris-Sharma, Dr. Nadja Alexander
Date: 27 May 2020
Time: 4:00PM IST
Justice Madan Lokur (Former Judge, Supreme Court of India), Dr. Judith Knieper (Legal Officer, UNCITRAL), Ms. Natalie Morris-Sharma (Director, International Legal Division Ministry of Law, Singapore) and Dr. Nadja Alexander (Professor of Law, Singapore Management University) gave an insightful presentation on the topic ‘Mediation as a Tool for Conflict Management’.
Justice Lokur opened the presentation with a brief overview of mediation in India. Although mediation was recognized under the Civil Procedure Code for a long time, the culture of mediation did not take off until 2005 under an initiative of then Chief Justice of India. Lawyers were initially reluctant to promote mediation as they were skeptical about the process. After several campaigns and trainings, lawyers then gained confidence in the mediation process, and they subsequently played a role in setting up mediation centers in district courts in New Delhi. These mediation centers have been successful in promoting mediation amongst end-users and to date, have settled thousands of cases. This has inspired the rise of private mediation when recently, some lawyers started mediation in their own chambers. Justice Lokur also referenced the role played by Lok Adalat in settling thousands of cases pending litigation.
Justice Lokur opined that though the Legislature has been active in promoting mediation through various domestic legislations such as the National Legal Services Authority (Lok Adalats) Regulations 2009, the Arbitration and Conciliation Act 1996, the Companies Act 2013, and the Consumer Protection Act 2019, the Executive has a long way to effectively implement them. Justice Lokur was positive that mediation could be the solution to the backlog of cases in the judicial system. However, India would need to form a regulatory body to regulate and ensure standards among mediation centers and mediators.
Ms. Morris-Sharma then spoke about the Singapore Convention on Mediation (SCM).1 The SCM was drafted to address the lack of a cross-border mechanism that would give legal effect to mediated settlement agreements. She shared that the United Nations Commission on International Trade Law (UNCITRAL) has been working on a legal instrument to facilitate enforcement of mediated settlement agreements since 2014. Its efforts took form in 2018 as part of a compromise proposal. The compromise proposal was a break-through moment during the drafting of the SCM as the following five important issues were decided:
To avoid the use of the term ‘recognition’ in the SCM but describe it functionally.
- To exclude settlement agreements concluded in the course of judicial or arbitral proceedings from the scope of the SCM.
- The SCM to automatically apply to international settlement agreements reached through mediation by default unless the ratifying State makes a reservation.
- To include the two grounds of refusal based on the conduct of the mediator.
- The legal instrument to take the form of a Convention.
Subsequently, the SCM opened for signatures on 7 August 2019. To date, 52 States have signed the Convention and four States – Singapore, Fiji, Qatar, and Saudi Arabia – have ratified it. As a result of the third ratification, the SCM will come into force on 12 September 2020.
Ms. Morris-Sharma stated that the SCM would overcome the difficulties of enforcing settlement agreements as contracts under different domestic legal systems. The SCM was modelled along the lines of the New York Convention and it is commonly referred to as the New York Convention for mediated settlement agreements.2
The scope of the SCM has been kept broad to accommodate the flexible nature of mediation. The Convention recognizes international mediated settlement agreements as long as the agreements are (i) ‘in writing’, (ii) signed by parties, and (iii) are the result of mediation processes. , However, the scope with which the SCM would apply is dependent on the reservations that each country adopts (see Article 8 of the SCM). Despite that, thanks to the SCM, depending on the subject matter and the urgency of the dispute, mediation is now a viable dispute resolution mechanism for end-users. Ms. Morris-Sharma was hopeful that more countries will sign and ratify the SCM in the near future.
Dr. Knieper provided an overview of the unique drafting process that the SCM went through under the UNCITRAL. She shared that an understanding of UNCITRAL and the drafting process of the SCM would be helpful in interpreting the provisions.
UNCITRAL’s sixty members were specially selected to represent the various regional groups and domestic legal systems. With that said, any member state of the United Nations can attend any UNCITRAL sessions, this is irrespective whether they are a member of UNCITRAL. For instance, over ninety states and fifty international organizations and non-governmental organizations were involved in the drafting of the SCM.
During legal drafting of the SCM, it was important for members to reach consensus. To achieve this, informal discussions during breaks played a huge part. On the other hand, to keep in line with a transparent drafting process, all formal discussions were reported.
UNCITRAL’s work on mediation has come a long way from the Model Law on International Commercial Conciliation 2002. In addition to the SCM, the International Commercial Conciliation was also amended and updated. UNCITRAL is also currently working other instruments to to complement the SCM and to promote mediation – the Mediation Rules, the Guide to Enactment and Use of the Model Law and the Notes on Mediation.
Lastly, Dr. Alexander addressed the topic ‘Why parties should mediate’. Whilst lawyers and legal advisors generally demonstrated preference towards arbitration due to the availability of an expedited enforcement mechanism under the New York Convention, parties themselves preferred a dispute resolution mechanism that focuses on neutrality. Dr. Alexander then shared some factors parties would consider when choosing a mediator. This included but are not exhaustive to ethics, language efficiency, industry knowledge, cultural familiarity, and cost.
Despite the preference for arbitration and litigation in international disputes, end-users displayed a higher satisfaction rate with mediation. Consequently, it is common for dispute resolution mechanisms to adopt hybrid processes such as Arbitration-Mediation-Arbitration. Such hybrid processes were devised to combine the advantages of mediation with the advantages of arbitration.
Some questions addressed during the session are as follows:
How would the new mediation legislation proposed to be drafted in India affect the flexibility of mediation?
- Could mediated settlement agreements be challenged under the SCM?
- How can mediators who are not legally trained be given voice in the mediation community when it is saturated with those who are legally trained?
- Should an “Introduction to Mediation” module be introduced in the legal curriculum in law schools?
If you would like to listen to the session, a copy is available here.
We would like to thank our friends at the UNCITRAL Regional Centre for Asia and the Pacific, the UNCITRAL National Co-ordination Committee India, the Manav Rachna University, Faculty of Law, and the Centre of Excellence on Alternative Dispute Resolution for having made this session possible.
1Officially named United Nations Convention on International Settlement Agreements Resulting from Mediation.
2Officially named United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.