Mediation has the potential to resolve disputes and maintain relationships, and the Singapore Convention marks a milestone for this approach, writes Richard Li
Harmony is a long-lasting belief in Chinese culture. Confucianism emphasizes “cherishing harmony”, while the Taoist Taiji diagram (Yin and Yang) reflects the traditional Chinese belief that two conflicting elements can merge into one harmonious unit.
Influenced by such culture, China has had a long tradition of using mediation to resolve disputes – not just in ancient times, but in modern China as well. The majority of cases accepted by mainland Chinese courts have been actually resolved by mediation.
But the popularity of mediation is not unique in China. As arbitration has become less efficient and more expensive, the penchant for mediation has become increasingly visible across the world. As the final draft for the Singapore Convention was approved by the United Nations Commission on International Trade Law (UNCITRAL) in June, 2018 is bound to be a milestone year for mediation.
“Recent years have seen states and parties move towards non-adjudicative methods of resolving disputes, including mediation and conciliation,” says May Tai, the Greater China managing partner at Herbert Smith Freehills in Hong Kong. “Alongside this shift … a recent series of surveys showed a clear desire among commercial parties, particularly in Asia, for more regulation of non-adjudicative processes like mediation.”
In June 2018, the Draft Convention on International Settlement Agreements Resulting from Mediation, and the Model Law on International Commercial Mediation and International Settlement Agreements resulting from Mediation, were adopted at the 51st session of UNCITRAL.
The mediation convention, once adopted by the General Assembly later this year, is expected to be open for signature at a signing ceremony hosted by Singapore on 1 August 2019. It is therefore also called the “Singapore convention” or “Singapore mediation convention” for short.
“The convention … aims to implement, for the first time, an international regime for the enforcement of mediated commercial settlements, similar to the 1958 New York Convention on the enforcement of foreign arbitral awards and the 2005 Hague Convention on the enforcement of foreign court judgments,” says Matthew Brown, a senior associate at Clifford Chance in Singapore.