The Singapore Convention: a solution without a problem?
The UK’s signing of the Singapore Convention has generally been welcomed, but it is unlikely to result in major changes for parties participating in mediation in the UK. John McElroy, committee member of the London Solicitors Litigation Association (www.lsla.co.uk) and Hausfeld’s Head of Commercial Disputes in London sets out how, while a welcome procedural advantage, the Convention is unlikely to result in major changes for parties participating in mediation in the UK.
In summary. It is rare for a mediated settlement agreement to require enforcement by courts, as the settlement terms have been agreed between the parties voluntarily. Where a party is in breach of a mediated settlement agreement, the other party can already enforce the agreement by suing for breach of contract. The undeniable benefit of the Convention, however, is the international streamlined mechanism to enforce mediated settlement agreements that it provides without requiring lengthy and costly proceedings to establish breach beforehand.
Parallel to the signing of the Singapore Convention, the English judiciary is increasingly encouraging parties to engage in mediation and other forms of ADR. The Civil Procedure Rules are designed to encourage settlement without the need for proceedings to be issued. For example, the Practice Direction on Pre-Action Conduct and Protocols makes clear that litigation should only be used as a last resort, and that parties should consider whether negotiation or other forms of ADR might enable the parties to settle their dispute.
In addition, on 25 July 2023 the UK government confirmed that it is proceeding with plans to automatically refer parties involved in county court civil disputes of up to £10,000 for a compulsory free mediation session provided by the HMCTS. The idea of compulsory mediation is controversial and may be less suited to resolving high-value, complex disputes. Another alternative could be for the civil courts to adopt the voluntary judicial mediation scheme now in place in the employment tribunals in England and Wales which could be piloted in the High Court and, if successful, could be expanded.
The article was first published by The New Law Journal in August 2023.