The Singapore Convention

The session began with a brief history and review of the main features of the Singapore Convention by Michel Kallipetis QC (Independent Mediator, United Kingdom) who highlighted some of the difficulties to overcome to make the Convention agreeable to participating states and to make it practical for day to day use. The work started four years ago because UNCITRAL had been reluctant to use mediation because of the difficulty in enforcing mediation agreements. Discussions took place in Vienna and New York and required a change of mindset from that of arbitration (which most delegates were familiar with) to mediation (with which they were less familiar). Due to a fortuitous snow storm in New York, which closed the UN, the discussions were moved from the traditional tiered meeting format to a meeting room where all the delegates sat at the same table and the session was conducted much like a real mediation!

Mr Kallipetis summarised the circumstances in which the Convention applies and when it does not as well as the requirements for enforcement.

  • The mediation must be international, both parties must be from different states, or at least have their businesses located in different states.
  • The agreement must be in writing and signed by the parties and there must be evidence the mediation actually took place in the form of a separate confirmation by the mediator (although the mediators should not sign the agreement itself) or administering institution.
  • The Convention does not apply where the settlement agreement arises from court or arbitral proceedings.
  • Where the Convention does apply, a participating state must enforce the settlement agreement in accordance with the rules of the Convention.

Article 5 of the Convention raises some particular difficulties in that any breach of standards by the mediator or failure to disclose circumstances that might have resulted in a party not entering into the settlement agreement, could lead to a situation where the agreement is not enforced. To overcome this, Article 5(1)(e) makes clear that any alleged breach by the mediator must be objectively assessed by the enforcing authority and that if a party, knowing of any breach, continues to take part in the mediation without raising any objection prior to the agreement being signed, it is deemed to have effectively waived the objection.

Finally, Mr Kallipetis explained, there was much discussion about the opt in/opt out provisions with states differing in their attitudes. The Convention currently allows a state to do either, according to its preference. A total of 52 states have signed up to the Convention to date, of which three have ratified it (Fiji, South Korea, and Singapore).1 It is to be hoped there is now no reason why participating states should not encourage parties to mediate, which is a much more cost-effective means of dispute resolution, than, for instance, arbitration, in the knowledge that qualifying settlement agreements will be enforced.

Understanding the emotions of the mediator

Mediator emotions were explored in depth by Jonathan Lloyd-Jones (Independent Mediator, United Kingdom), standing in for Claude Amar (Independent Mediator, France) who could unfortunately not attend the event. Mr Lloyd-Jones outlined the model used by Mr Amar, which comprises Gary Friedman’s ‘External Path’ (‘External V’) and ‘Internal Path’ (‘Internal V’).2 The purpose of the ‘External V’ is to enable parties to understand their options and to open up the problems in order to find solutions. It starts with the parties’ positions, the mediator’s exploration of what is important to them, descending down the left side of the ‘V’ to establish meaning and then having explored that, rising on the right-hand side of the ‘V’ to explore options leading to solutions.

The ‘Internal V’ is closely related to the emotional reactions mediators feel when listening to the story a party tells and by being aware of those reactions, the mediator can become empathetic to the parties themselves. At the start, the mediator is effectively an outsider but by descending down the left side of the ‘Internal V’ and recognising and responding to physical signals such as body language and breathing can begin to form judgments about the emotions (such as anger, fear, or pain) of the parties, leading to empathy with each of them. Then, rising up the right side of the ‘V’ the mediator can enable the emotions to be expressed in the process itself. It was emphasised though that whilst mediators can usefully be responsive to emotions this should not lead to a feeling of being responsible for everything the parties’ experience, because after all the dispute is owned by the parties themselves.

The next presenter, Thierry Garby (Independent Mediator and Arbitrator, France),3 explained that mediators gather information using their five senses. That information is processed by the brain and first passes to the amygdala, which is the centre for emotions, and then to the neo cortex, which converts the reactions to feelings. This means that when, for instance, we are in an art gallery, we experience emotions about the artwork before we really fully understand its underlying meaning. The combination of information, emotion and identity, together comprise perception. It was suggested that the core property of perception is identity.

Mr Garby then went on to explain how this works effectively when we use non-violent communication. He used the example of a parent complaining about the state of its child’s bedroom, in which the complaint comprises emotion, judgement (the state of the room and blaming the child), a request, observation and need. He then explored how the most objectionable part of this complaint, from the viewpoint of the child, is the ‘judgment’ (which implies blame) and how to restructure the complaint to make it more acceptable. The complaint might be restructured in a different sequence, for example: Observation, emotion, need and a request, in that order. It was considered that this approach could result in a much better outcome.

Applying this to mediation means that the mediator should try to incorporate and identify the emotions of all of the parties in the process; suppressing emotions is a direct way to ensure the mediation fails. After all, emotions are contagious and by starting with positive emotions, such as a smile, might bring a smile to all those in the room!

Emotions are the windows to interests and needs

Birgit Sambeth-Glassner (Mediator, Altenburger, Switzerland) continued the discussion with an example of a modern technology platform where disputes with a value below US$ 5,000 are resolved by artificial intelligence. The company promoting this has stated that it was important to remove emotion from mediation; it was suggested that fortunately this is not a common perception (at least among mediators). A parallel was drawn with shuttle mediation where parties meet only for a short period, if at all, and whether this was a good form of mediation as, in such an environment, emotions inevitably take second place.

The main part of this session took the form of a discussion with the audience. In response to the question ‘What do you need?’ by a mediator to a party, some thought parties generally do not know and simply go on to repeat their positions. Rephrasing this question and splitting it into two questions was thought to be more effective and more likely to result in a useful response: ‘What do you want?’ followed by ‘Why do you want it?’.

The session prompted some lively discussion and interesting anecdotes that resulted in the following answers.

It was noted, however, that mediators rarely utilise emotions proactively in mediations. Ms Sambeth-Glassner suggested some tools mediators might use to facilitate the discussion of emotions, including story telling, the use of picture cards, colours, sounds and taste, all of which can promote a positive atmosphere in the mediation.

Another useful tool which was discussed is co-mediation where two mediators – of possibly different gender – work together. Different mediators will have different reactions to the parties’ problem and it is a situation where ‘two heads are better than one’ (i.e. it is easier for two people who help each other to solve a problem than it is for one person to solve a problem alone). In particular, co-mediation increases the scope for recognising and utilising emotion in the process.

This successful and unprecedented session addressed the rarely discussed topic of emotion in mediations. The active participation from the audience certainly suggested that such topic could easily be developed and will no doubt be discussed further in various forums around the world.


1
As at 25 April 2020. Status of Signatures and Ratifications available at https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements/status.

2
See Gary Friedman, Inside Out: How Conflict Professionals Can Use Self-Reflection to Help Their Clients (American Bar Association, 2015).

3
Thierry Garby also authored Agreed! Negotiation/mediation in the 21st century (ICC Publishing, 2016) available at https://2go.iccwbo.org/ and https://library.iccwbo.org/.