Like a good wine, mediation can and does travel well. There will be different variations on mediation (be it commercial or workplace) often reflecting local palettes, however, the recognition of what mediation is and what it can do for the resolution of disputes has never been higher across many borders.

A starting point for understanding mediation’s growing presence is to consider where in the world mediation now has a formal status. Or to make the task easier, just ask the question – ‘Which countries do not formally recognise mediation?’ From Kazakhstan to Kenya or Brazil to Bangladesh there has been a change in that status of mediation where laws have been enacted, practice rules changed and mediation schemes adopted by courts. Most countries now, at least in theory, have a mediation presence. This is a dramatic update for a world where back in 2000 you could probably have counted on the fingers of two hands those countries where there was any formal recognition of mediation.

Asking a different question – “How many mediations are each of these countries doing?” – unfortunately brings a less satisfactory answer, for whilst certainly some jurisdictions are very active, when taken as a whole the picture is far less consistent. Nevertheless, if the development of mediation in the UK has shown anything it is that it is hard to change the status quo overnight and persistence, while frustrating, can bring change. In this light, the development of mediation internationally is not hopelessly slow but rather typically incremental when viewed in the longer term.

One of a number of catalysts for this change was the European Union’s ‘Cross-Border Mediation Directive’, which was mooted for over a decade and came into force in 2011, for disputes between parties within different member states. As a direct result of this development there is now undoubtedly more access to mediation across the European Union – however, quality and importantly usage remains uneven from state to state. There is definitely scope for still wider adoption whilst letting mediation retain the flexibility which makes it so useful and adaptable.

It is very important to note that the consequences of the Mediation Directive have been to develop internal capabilities in each member state to use mediation not just for cross-border disputes but in many other areas of commercial and civil disputes. Alongside this, the more recent EU Consumer ADR Directive, whilst not specific to mediation, has stimulated more activity in the field and a better understanding of mediation and its uses.

The net result of both these Directives has been positive across Europe for businesses and individuals (both as consumers and as employees). In Dublin or Dubrovnik there is now a greater understanding that, in most circumstances, a person has the right to access mediation to resolve their dispute whether it be a piece of commercial litigation, a customer seeking redress for their complaint or a solution to a workplace grievance.

A recent influence in the growth of international mediation is the work of the United Nations Commission on International Trade Law (UNCITRAL) Working Group II (Dispute Settlement). Most recently UNCITRAL has been reviewing as part of its remit, whether there should be a mechanism in international trade law which ensures there is standard legal enforceability across borders for mediated settlement agreements or should each jurisdiction be encouraged to enact a model mediation law. The Working Group has now been meeting twice a year for two years alternating between Vienna and New York UN offices currently developing both options within a flexible model where countries can choose either or both.

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The heart of their debate is whether mediated outcomes should have a similar status given to arbitral awards under the longstanding UNCITRAL Convention, which allows countries to sign up to the recognition and enforceability of international arbitral awards. The logic is obvious for arbitration at one level – ‘final’ resolution in an international commercial dispute, would be much less appealing if one could not guarantee that outcomes would be recognised by different national courts (and there are still some major jurisdictions where this is a major headache for companies operating across borders). A lack of finality undermines the rule of law and in turn international trade. Some 153 countries have signed up to the ‘New York Convention’ which sets out the legal framework by which this recognition and enforceability happens for arbitral awards.

Seeking to apply this same logic to mediated settlement agreements raises a raft of points of principle and detail. Is an instrument necessary? What happens if a settlement occurs just after a mediation and who certifies that a mediation has taken place? What rule applies if a mediated settlement has been already converted into a consent court order in one jurisdiction (terminating any trial)? What is the scope of the instrument and the definition of commercial mediation? The latter issue already is a prelude to an international language anomaly, as traditional UNCITRAL instruments refer to ‘Conciliation’ rather than ‘Mediation’ and this is likely to work through to any new UNCITRAL instrument despite the dominance of the word ‘mediation’ now.

Observing the debate, it is obvious that a great deal of care and attention is being put into the process by the many national delegations who are mainly from Ministries of Justice though some do include mediators. It is equally apparent that many jurisdictions have found the drive for a legal instrument somewhat bemusing as some countries are still relatively new to mediation compared to arbitration, and some struggle at times with in-depth understanding of the process.

Some in the mediation world might query whether any instrument on enforcement is necessary given that most mediated settlements are reached and implemented by consent, making mediation very different from imposed arbitral awards. However, the contrary case is that all commercial parties want their hard-fought outcomes to be legally binding and would normally be concerned if it was otherwise. Furthermore, an international instrument recognising the legal status of mediation is yet another foundation stone in the credibility and acceptance of mediation in the international order just as courts or arbitration. And thus the mediation, if it can adapt subtly to regional palettes, will mature into a fine vintage.

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