In December 2018, the UN General Assembly adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation, or the Singapore Convention. The Convention was open for signature on August 7, and Adeline Chong reports that forty-seven states, including the United States, have signed. Let me pause and express surprise and happiness that the United States has, in this era, signed any multilateral agreement on cooperation. Perhaps this flew under the radar of the political appointees. China, India, and of course Singapore, among others, have also signed.
From the perspective of a humble practicing litigator, the Convention seems much more modest than its peers, the New York Convention and now the Judgments Convention, or even the Choice of Court Agreements Convention. All of those conventions come into play when a dispute has arisen and the parties cannot be expected to agree on anything. But when the parties to a dispute, with the help of a mediator, agree on a resolution, typically (not always) they both are willing to carry out their agreement, and if there is a concern about enforcement the parties can address it in their settlement agreement in whatever way they think best. That said, the Convention provides some assurances that settlement agreements resulting from mediation will be enforced.
I haven’t followed the progress of the new Convention closely, nor have I read the travaux préparatoires. The basic idea of the Convention is surprising to me. Why does it make sense to distinguish settlement agreements reached with the aid of the mediator from other international settlement agreements, particularly when any third person can act as a mediator? The mediator has an authenticating function under Article 4 of the Convention; the Convention makes a mediator’s certificate sufficient evidence that the settlement agreement resulted from a mediation. But a notary public or another public official could just as easily certify that the parties had signed the written agreement. In other words, why privilege settlements reached with the aid of a mediator? (Mediation enjoys some similar protections in the local law of some or maybe all US states. In Massachusetts, for example, an evidentiary privilege attaches to communications made in a mediation if the mediator has taken the necessary training to be certified).