We are pleased to share this Mediation in Arbitration podcast, in which Craig Tevendale, Chris Parker and Rebecca Warder discuss the results of the Herbert Smith Freehills and London Chamber of Arbitration and Mediation (LCAM) Mediation in Arbitration Survey (discussed in this previous post). The podcast also covers potential barriers to mediation in international arbitration, how these might be overcome and the future of mediation in arbitration. Continue reading
The Herbert Smith Freehills arbitration team has partnered with the London Chamber of Arbitration and Mediation to conduct a snapshot survey of more than 50 mediators, exploring their experience of mediation in arbitration in 2019 and 2020. The results of the survey shed light on current take-up of mediation in arbitration, the stages of the dispute at which these mediations are most likely to occur, claim values, and settlement rates. In this blog post we discuss and reflect on mediator responses to the survey, examining what the survey results reveal about the current trends in mediation in international arbitration. You can also watch a short video summarising the key findings of our research here. Continue reading
The Mediation in Arbitration Survey is now closed and we are very grateful to the more than 50 mediators who have shared their experience with Herbert Smith Freehills and the London Chamber of Arbitration and Mediation. Continue reading
The Centre for Effective Dispute Resolution (CEDR) is inviting interested parties in the UK to take part in its Mediation Audit 2020. Continue reading
Herbert Smith Freehills is joining with the London Chamber of Arbitration and Mediation to conduct a new Mediation in Arbitration Survey. Continue reading
Tomorrow marks an important day for international dispute resolution as the Singapore Mediation Convention comes into force, just over a year after its signing ceremony on 7 August 2019. More formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation, the new Convention aims to establish a global enforcement regime for settlement agreements resulting from mediation of international commercial disputes, broadly akin to the 1958 New York Convention for the enforcement of arbitral awards.
To date, a total of 53 states have signed the Convention and 5 states have either ratified (Singapore, Fiji, Qatar and Saudi Arabia) or approved (Belarus). However, a key feature of the Convention that has not been widely appreciated is that it will apply to mediations conducted anywhere in the world, not just within jurisdictions that have ratified it. Any jurisdiction that ratifies/approves the Convention agrees to enforce any mediated settlement agreement covered by the Convention, regardless of where the mediation was conducted. Accordingly, the fact that it has not yet been signed by the UK or the EU does not mean that it cannot be relied on to enforce settlements resulting from mediations held in those jurisdictions.
Of course, at this early stage, the Convention can only be relied on to facilitate enforcement in the current member states. However, given that 48 other countries have already taken the first step of signing the Convention, it seems likely that this list could soon increase substantially. And the fact that those countries include the world’s three largest economies – China, the US and India – bodes well for the Convention becoming an important element of the global dispute resolution landscape.
By way of background, the Convention stems from a concern that the use of mediation to resolve international disputes has been impeded by the fact that, unless a settlement reached via mediation is in the context of a pending arbitration and can be converted into an arbitral award, parties could only enforce it in the same way as any other contract. That would usually involve bringing fresh proceedings for breach of contract. In an international context, this could involve potentially difficult (and usually lengthy) processes to obtain a court judgment and then enforce it in a foreign jurisdiction.
It is important to note that, in practice, enforcement of mediated settlements is in fact rarely an issue (at least compared to litigation and arbitration), given that both the decision to mediate and the agreed resolution are voluntary, rather than imposed upon the parties. Having negotiated and documented a resolution through a formal process, commercial parties do for the most part tend to stick to it. Nevertheless, it had become clear in recent years that the lack of a formal enforcement process could account for at least some of the patchiness with which mediation has been embraced across different jurisdictions globally. This is supported by our analysis of the data collected at the recent Global Pound Conference series. That project sought the views of thousands of dispute resolution stakeholders across the globe on various issues, including as to what would most improve commercial dispute resolution. Particularly in Asian jurisdictions, nearly two thirds of respondents said that what would be of most benefit would be legislation to aid enforcement of settlement agreements. In other regions, this was seen as less pressing than other factors but still received substantial support. The new Convention directly meets this call for regulation and certainty.
For detail on when and how the new Convention will operate, see our earlier post here.
For commentary on some practical issues for mediating parties to consider now, see an article by Jan O’Neill (Professional Support Lawyer, London ) published on the Practical Law Dispute Resolution Blog here. Also, click here to hear Jan more recently considering the implications of the Convention in a podcast discussion with the Managing Director of CEDR, James South.
For guidance more generally on incorporating mediation and other forms of ADR into your business, see our ADR Toolkit here.
Signatories as at 12 September 2020: Afghanistan, Armenia, Belarus, Benin, Brunei Darussalam, Chad, Chile, China, Colombia, Congo, Democratic Republic of the Congo, Ecuador, Kingdom of Eswatini, Fiji, Gabon, Georgia, Ghana, Grenada, Guinea-Bissau, Haiti, Honduras, India, Iran, Israel, Jamaica, Jordan, Kazakhstan, Laos, Malaysia, Maldives, Mauritius, Montenegro, Nigeria, North Macedonia, Palau, Paraguay, Philippines, Qatar, Rwanda, South Korea, Samoa, Saudi Arabia, Serbia, Sierra Leone, Singapore, Sri Lanka, Timor Leste, Turkey, Uganda, Ukraine, the US, Uruguay, Venezuela.
Ratified/approved by: Singapore, Fiji, Saudi Arabia, Belarus (approved with reservations), Qatar
On 22 July 2020, the Republic of Ghana became the 53rd country to sign the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Singapore Convention”) since it opened for signature in Singapore on 7 August 2019. Continue reading
The London Chamber of Commerce and Industry (LCCI) has expanded its dispute resolution services by launching the London Chamber of Arbitration and Mediation (LCAM) on 26 May 2020. Continue reading
In Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Anor  EWHC 1050 (Comm) (30 April 2020) (Wales), the High Court (the Court) disallowed a substantial part of a successful defendant’s costs as a result of its failure to engage in mediation. This is the latest decision in a number of recent High Court cases where the Court has shown willing to impose cost sanctions on the basis of a party’s refusal to participate in ADR (as discussed in a previous post here). Continue reading
We have previously reported on the Court of Appeal judgment in Lomax v Lomax  EWCA Civ 1467. In the Lomax decision, the Court held that it had the power to order an early neutral evaluation (ENE) even where one or more parties did not consent to that course. At the time we observed, among other points, (i) that the Lomax judgment had the potential to prompt an increase in use of ENE by parties (either on their own initiative or further to directions from the judge); and (ii) that the decision was of wider significance in the context of the debate as to whether the courts’ encouragement of ADR should extend into compulsion. Continue reading