Oliver Carroll, Senior Associate in Dispute Resolution at international law firm Clifford Chance, looks ahead to what is in store for mediation in 2023.
Any mediation practitioner knows that while you can take warring parties to a mediation, you cannot make them settle. However, the trend in jurisdictions throughout the world to amend their civil procedural rules to mandate or render ‘compulsory’ a form of mediation has continued and will likely grow in 2023. While it may seem counterintuitive to mandate or demand that parties attempt to settle their dispute, in reality many of the rules which purport to compel mediation do significantly less than that.
Rules typically range from judicial tick-box exercises where parties are asked if they have attempted to settle before a case is allowed to progress to trial, to court-appointed conciliators liaising with parties (nominally or substantively) for a prescribed period, through to introducing sanctions on parties if they have not genuinely attempted to settle their dispute or otherwise explore their respective issues and concerns through mediation at an early stage. In the last year, following an extensive consultation on amendments to the civil procedure rules in England and Wales, the UK Government announced that mediation would be made compulsory for monetary claims of up to £10,000 – it is expected that up to 20,000 cases per year could be effectively taken out of the court room and settled under this new mechanism, making up to 7,000 judicial sitting days available.
International expansion of mediation
The United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the Singapore Convention) which was adopted on 20 December 2018 and opened for signature on 7 August 2019, now counts 55 states as signatories, 10 of which have completed their domestic ratification procedures, with Kazakhstan most recently adding to the group of ratified states. The Singapore Convention hopes to facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements reached through mediation across borders. Its signatory states will likely grow in number in the course of 2023: the United Kingdom recently completed a consultation on joining the convention and we await its outcome and proposals.
While the Singapore Convention has entered into force, neither the United States, nor China have completed their ratification procedures, and the European Union has not yet signed the treaty despite being closely involved in the negotiation of its terms. However, institutionalised mediation has continued to grow, with China recently announcing the that an office will open in Hong Kong to prepare for the establishment of an International Organization for Mediation in the Special Administrative Region, with the participation of numerous other states.
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