Mixed Mode Procedures’ Potential Hijacking of the Singapore Convention on Mediation

Abstract: Mediation—commonly understood as a consensual process in which a neutral third party facilitates negotiation—has become a dominant conflict management mechanism. The U.N. Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention”), which entered into force five years ago, reinforces this trend by providing expedited enforcement of international commercial settlement agreements reached through mediation. This study examines the downstream consequences of the application of the Convention’s broad definition to mixed mode procedures, in which third-party neutrals combine facilitative, evaluative, adjudicative, or ministerial functions. Using comparative case studies of procedures in Japan, Israel, Singapore, and the United States, the study develops and applies a “Continuum of Third-Party Assistance” to determine which mixed mode outcomes would qualify for expedited enforcement under the Convention. It is argued that many existing mixed mode procedures are likely to hijack the Convention’s enforcement power and even undermine ratifying countries’ regulation of mediation and mediators.

Keywords: mediation, mixed modes, Singapore Convention