Supporting party autonomy in the enforcement of cross-border mediated settlement agreements: A brave new world or unchartered territory?

• Main Author: QUEK ANDERSON, Dorcas
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2019
• Subjects: UNCITRAL; Mediated settlement agreements; Access to justice; Enforcement; Mediation; Party autonomy; Arbitration; Dispute Resolution and Arbitration
• Online Access: https://ink.library.smu.edu.sg/sol_research/2909; https://ink.library.smu.edu.sg/context/sol_research/article/4867/viewcontent/Dorcas_Quek_Anderson_Supporting_party_autonomy_in_the_enforcement_of_MSAs_050618.pdf
• Institution: Singapore Management University

The last decade has seen a palpable rise of domestic and international instruments tofacilitate the enforcement of cross-border mediated settlement agreements. The EU MediationDirective required member states to provide for enforcement of such agreements. Common lawjurisdictions including Singapore, Ireland and Ontario have enacted legislation to allowmediated settlement agreements to be recorded as court judgments. Other countries haveprovided for such agreements to be akin to arbitral awards for enforcement purposes. Mostrecently, the United Nations Commission on International Trade Law (UNCITRAL) has agreedto create multilateral convention and to amend the Model Law on International CommercialConciliation to facilitate cross-border enforcement of commercial disputes via mediation. Itwas rightly observed in the Global Pound Conference series that there is a significant desire –notably in Asia – for enforcement legislation to be passed in order to increase the use ofmediation.The mediation process is one of many ways in which dispute resolution has beenprivatized and taken out of the formal court system. The first wave of privatization probablycommenced with the growth of arbitration, leading to the wide ratification of the New YorkConvention. Mediation now appears to be following the same path treaded by arbitration,spawning the growth of mediation regulations, professionalization systems and nowenforcement instruments. Both dispute resolution processes allow the parties to participatemore fully in comparison to litigation. Party autonomy is a common attraction shared in boththese processes. However, party autonomy plays a much more integral role within mediation.Under most mediation frameworks, the disputing parties not only choose their mediator andtype of mediation process, but also have to freely consent to the mediated settlement. In thisregard, the UNCITRAL’s current draft wording of a convention recognised that the mediator“lacks the authority to impose a solution upon the parties” and the parties must arrive at anamicable settlement.Parodoxically, the legitimacy of mediation “requires the use of the very litigation systemwhich the parties eschewed in the first place”. The exercise of party autonomy within thisprocess has to be validated through the courts’ willingness to enforce the mediated agreement across borders. Mediated settlement agreements require the courts’ support by ascribing legaleffect to them when the need arises. The efforts by UNCITRAL to create an expedited cross-border enforcement mechanism thus raise the crucial question about how best the litigationsystem can support the exercise of party autonomy within mediation.This article discusses both the great potential and likely difficulties faced in giving weightto consensual agreements reached through the private mediation process. Part II explores theneed for a mechanism to be created to support autonomy, while Part III provides an overviewof the key provisions of the convention. Two areas of tension will then be explored. Part IVdiscusses the difficulties in giving effect to party autonomy amidst the plurality of domesticand international mediation standards; and Part V examines the tension between respectingparty autonomy and giving weight to the enforcing state’s public policies.It will be argued in Parts IV and V that the challenges arising from the proliferation ofenforcement regimes are not insurmountable. The brave new world of cross-borderenforcement may bring about some unavoidable challenges. Nevertheless, the very effort tofacilitate international enforcement provides the much-needed impetus to overcome thesechallenges by encouraging greater convergence of mediation standards and more candiddiscussion about managing the relevant tensions. In navigating these tensions, the emergingenforcement regime may well usher in a promising sea change to the development ofinternational commercial mediation and mediation standards.