Mediation filings have doubled since 2019: Singapore Law Minister K Shanmugam

Two years after the signing of the Singapore Convention on Mediation, the Law Ministry recently held the Singapore Convention Week 2021, which brought together leaders from the legal, business and government sectors in the international dispute resolution scene.

The conference themed ‘A World In Transition’ featured a number of experts from across the globe sharing their views on the future of mediation and dispute resolution in general.

Among those dignitaries was Singapore Minister for Law and Home Affairs, K Shanmugam. In this interview with Bar & Bench, the Senior Counsel speaks on the success of the Singapore Convention, how the COVID-19 pandemic had changed things, and more.

As of September 8, 2021, 54 countries are signatories to the Singapore Convention on Mediation. Has that number increased since then? What efforts have been taken to convince more countries to get on board?

Yes, we are happy to note that Australia has since signed the Convention, bringing the total number of signatories to 55. 7 parties have also ratified the Convention, namely, Singapore, Fiji, Qatar, Saudi Arabia, Belarus, Ecuador and most recently Honduras in September this year.

Singapore was amongst the first countries to sign and ratify the Convention, and has been sharing its experiences with States, businesses and practitioners on the benefits of mediation and the Convention.

We promote exchanges of views among practitioners on the mediation landscape in their countries and on the Convention. We assist in providing technical assistance to States who require it, and share with them the domestic legislation we have implemented to give effect to the Convention.

For example, we recently held a series of capacity-building workshops on the use and benefits of mediation and the Convention for government officials and industry representatives from around the world at the inaugural UNCITRAL Academy on September 7 and 8.

Has the cross-border enforcement of settlement agreements brought in by the Singapore Convention successfully prompted parties to opt for mediation as a first course of dispute settlement?

The Convention enables parties to a commercial dispute to easily enforce and invoke mediated settlement agreements across borders and plugs the gap in international mediation. With greater assurance that mediation can be relied on to settle cross-border commercial disputes, we expect that parties would be more inclined to opt for mediation as a first course of dispute settlement.

We see an increase in the use of mediation. For example, the Singapore International Mediation Centre (SIMC) has almost doubled the number of mediation filings from 2019 to 2020. There is also growing interest in mediation in India and elsewhere. The inaugural India-Singapore Mediation Summit, organised by SIMC, CAMP Arbitration and Mediation Practice, and Mediation Mantras in July 2021, saw over 6,500 live viewers from more than 60 countries including India, Singapore, Malaysia, US, UK and Australia.

Several businesses have taken a hit during the COVID-19 pandemic. How will the terms of the Convention help businesses navigate through these times of uncertainty?

The pandemic has shown us how quickly disputes can occur and how unexpected circumstances can lead to disputes. As businesses continue to face difficulties such as declining revenues and an uncertain future, mediation becomes an important tool.

The Convention can help businesses leverage mediation as a form of alternative dispute resolution, as it offers greater certainty on the enforceability of mediated settlement agreements. Mediation offers several benefits: it is fast, cost-effective, and non-confrontational. Most importantly, during these uncertain times, it helps parties to maintain business continuity by preserving relationships.

What are the implications of the pandemic on grant of relief to State parties in terms of Article 5(1) of the Convention?

We do not foresee the pandemic having implications on the grant of relief under Article 5 of the Convention. Article 5 includes an exclusive and exhaustive list of grounds on which a court can refuse to recognise or enforce a settlement agreement. Regardless of the pandemic, the listed grounds are exhaustive, and a State cannot enable its courts to deny relief on additional grounds not permitted in the Convention.

Under the Convention, signatory States can enforce settlement agreements in accordance with their own local rules, which may lead to difficulty. Could this be a barrier to the Convention’s success?

The Convention allows signatory States that have ratified or approved the Convention to enforce settlement agreements in accordance with their rules of procedure, subject to the conditions laid down in the Convention. This is meant to accommodate the range of legal systems and domestic rules of procedure across jurisdictions, while maintaining a common baseline and conditions for the grant or refusal of relief under the Convention.

In this way, rather than being a barrier, the Convention establishes a harmonised international enforcement framework for mediated settlement agreements, while still allowing different jurisdictions to utilise their own domestic rules to effect such enforcement.

One of the criticisms of the Convention is the absence of standards for who qualifies as a mediator. What do you see as being the solution to this?

The Convention contains exceptions which apply to the extent that there are applicable standards that governs the mediator or the mediation. For example, Article 5(1)(d) and (e) which provides a ground for refusal to grant relief if there is a serious breach of mediator or mediation standards without which the party would not have entered into the settlement agreement; and failure by mediator to disclose potential lack of impartiality or independence, respectively. Such standards could have applied based on the mediator’s licensing regime; or based on standards that might have applied due to the parties’ agreement with the mediator; or pursuant to the rules of the administering institution. A failure to meet these standards may be grounds for the competent authority of a party to the Convention to refuse relief.

Institutional accreditation and credentialing can offer greater assurance of quality standards. In Singapore, the Singapore International Mediation Institute (SIMI) provides accreditation and mediation standards. Through its credentialing schemes, SIMI certifies the competency of mediators and ensures their professionalism and quality. This serves as a mark of quality assurance for mediators and instils user trust and confidence in mediation services.

What role do lawyers play in ensuring that mediation becomes a more accepted form of dispute resolution?

The role of a lawyer is to advise clients on the best way to resolve their disputes to achieve their desired outcome, depending on the circumstances of the case – be it arbitration, litigation, mediation or even hybrid solutions like Arb-Med-Arb protocol. With the Singapore Convention on Mediation, lawyers can now confidently recommend mediation as a time and cost-effective tool for dispute resolution, as the mediated settlement agreements can now be more easily enforced in countries that are parties to the Convention.