It is probably pure coincidence that 2019 marks both the 50th Anniversary of the first lunar landing and the signing ceremony for the Singapore Mediation Convention (“the SMC”). One may think that the similarity between these two events ends there, and perhaps it does. In respect of the lunar landing it has often been asked why such a momentous event occurred only 6 times, why only 12 men (and sadly no women) walked on the moon and why no person has returned to the moon since 1972¹. How will the SMC fare over the next 50 years? Will it be utilised on a regular basis or will it be fall into an unused and unvisited vacuum of space in the dispute resolution framework?

The passing of the SMC has been described as a game changer for mediation and its signing in Singapore on 7 August 2019 is being fêted and celebrated in style. And it should be. The SMC has the potential to revolutionise cross-border disputes and become mediation’s equivalent to arbitration’s New York Convention 1958 (“the NYC”), which is now in its 61st year. That of course is the optimistic hope and intention for the SMC. However, the reality is that there is a huge difference between arbitration and mediation and the application of the NYC to arbitrated disputes.

In arbitration, the parties have contractually predetermined their mode of dispute resolution. The NYC provides an additional layer of reassurance for parties who find themselves in a cross-border dispute. When their dispute is determined by an arbitral tribunal, a party knows that they will be able to enforce such determination. This is crucially important given that parties are unlikely to be on the best of terms post-arbitral decision. Contrast this with mediation, where parties’ having found themselves in dispute, voluntarily choose mediation as their dispute resolution mechanism. Parties who have committed to mediation are seeking a resolution and settlement that brings their dispute and conflict to an end. That primary aim can only be assured if the settlement reached is honoured by the paying party. Parties who have successfully mediated their dispute usually have an on-going interest in ensuring the implementation of the settlement agreed between them. As Kenneth Cloke says in ‘Mediating Dangerously’ – “Part of the success of mediation lies in the fact that, as a process, it encourages resolution and reconciliation.”²

Given this overriding ethos and spirit of parties who agree to submit their dispute to mediation it raises the question as to whether the SMC as an enforcement tool will encourage a greater use of mediation in cross border disputes, especially in regions where the take up of mediation is relatively low. This has to be the overriding intention of the creators of the SMC. I remain optimistic albeit slightly sceptical that this intention will be realised.³

I was recently asked to speak at the MENA Britain Trade Expo3 in London on cross border disputes and the use of mediation in the MENA region. Mediation in the MENA region has a low uptake especially when compared to arbitration which has seen a boom in the region especially over the last 20+ years. In the MENA region, this is surprising given that mediation has a long historical and cultural background. Mediation is rooted in Islamic law and traditions, where an independent person, often the village elder, was used to assist with the solving of conflicts, including commercial disputes. Despite this tradition the region as a whole has not embraced modern day commercial mediation.

It would be over-simplistic to think that the growth of cross border mediation has been restricted solely by reason of a fear as to the enforceability of any mediated settlement reached by parties in dispute. Of course, this may in some way have played a part, but it is not the driving force.

A review of what has made arbitration so popular assists in reviewing the reasons for the lack of support for mediation. In the MENA region arbitration is now widely recognised, understood and considered viable. It is culturally and judicially accepted, and its use is generally consistent both throughout the MENA region and globally. Contrast this with mediation which certainly does not have the same understanding, acceptance and consistency within the region. These are key elements necessary for the growth of any dispute resolution mechanism. In the absence of these key elements it is unlikely that the SMC means of enforcement of mediation agreements will be sufficient impetus to change the current cultural, educational and legal impediments to the use of mediation.

As a starting point there will need to be a greater understanding of the use and benefits of modern-day mediation, coupled with a greater encouragement by the relevant political and legal authorities, both in the MENA region and elsewhere. Crucially, the SMC will only have force in those countries that have adopted and ratified it. Adoption and ratification of the SMC will be a clear indication of a government’s support for the process of mediation. Given the MENA region’s historical familiarity with the concept of mediation it is hoped that governments in that region and of course in all other regions will be supportive. However, closer to home it is to be noted the United Kingdom’s government’s position is that it is currently not intending to ratify the SMC. This is despite the fact of the widescale use of mediation in the UK. It is unclear as to why this might be, but the UK government is not sending out the right mediation message to those parts of the world that have not yet embraced mediation. It is interesting to note that the UK did not ratify the NYC until 1975, some 17 years after its signing, and so it does not have a good track record of being a trailblazer. The NYC has now been ratified by 155 states.

Irrespective of the challenges ahead, the SMC can and should be described as a huge positive step forward for cross-border mediation. The SMC’s take-up and use is yet to be determined. That will be dependent upon those sovereign states that choose to ratify the SMC and additionally take steps to promote and advance the use of mediation in their country and internationally. And finally, keeping with the original theme of this article and remembering the words of my inter-galactic mediation hero… Captain (Mediator) Kirk…. the SMC offers us the chance to take mediation where no mediator has gone before. The future for mediation post-7 August 2019 remains uncharted, but incredibly bright.

¹Apollo 11, 12, 14, 15, 16 & 17 – July 1969 to December 1972. ²Mediating Dangerously – The Frontiers of Conflict Mediation – Kenneth Cloke – 2001 (@ p. 19)
³MENA Britain Trade Expo – 28 June 2019 – QEII Centre, Westminster London – “Cross Border Disputes in the MENA Region – Let’s talk Mediation.” (Middle East & North Africa)

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Andrew Miller QC has 30 years of experience of dealing with and resolving commercial disputes both domestically and internationally. He practices as a Mediator and Arbitrator in a wide range of commercial sectors. Andrew has acted as lead mediator in commercial disputes valued from £10,000 to £35 million.

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