46 signatories for the Singapore Convention on Mediation! Wow!

I felt strangely emotional watching the 46 government officials walk on stage one-by-one to sign the United Nations Convention on International Settlement Agreements Resulting From Mediation.

What a journey it has been, personally and globally.

What lies ahead? How can those of us who feel for the spirit of service in mediation actively shape the narrative?

There is no doubt that the Singapore Convention is an important milestone. Singapore Prime Minister Lee Hsien Loong viewed that the Convention will help advance international trade, commerce and investment. When jurisdictions start to develop a robust global framework to manage conflicts, we can jointly prevent international commercial disputes from escalating unnecessarily or causing unintended consequence.

As the New York Convention did for arbitration, the Singapore Convention will foreseeably result in an increase in the use of mediation for conflict resolution over the next 10 years.

When more see the value that mediation can bring to their communities, there will be an exciting inflow of global talent to the mediation sector. This will re-define the narrative for mediation practice, and, at the higher level, the norms for conflict resolution.

The Asian Voice

Of the 46 jurisdictions that signed the Convention on the first day, 20 were Asian and this included China and India. That’s more than half the world’s population. Compared to the arbitration convention, when only 3 of the first 24 signatories in 1958* were Asian (India, Pakistan, and Philippines), the significance is more than symbolic. It is more than a mere coincidence that an Asian jurisdiction was chosen to host the signing of the Mediation Convention.

Asia has the world’s fast growing middle class and will continue to be a key driver for the global economy for this Century. Critically, most Asian jurisdictions are only at a very early stage in the development of their commercial mediation infrastructure. In these jurisdictions, mediation remains primarily the domain of court-annexed centres and carried out by judges or court volunteers with minimal proper training and independent accreditation.

This is set to change. Commercial mediation is poised to explode in Asia, driven by the sheer volume of economic activity and by the strong preference for pragmatic solutions that take into account reputation and collective good. International mediation standards will have to evolve to more properly take into account Asian communication norms.

Asian governments have already made efforts to seize the initiative. Even before the Convention was signed, the Chinese government had emphasised that mediation will be an important part of the China International Commercial Court and the resolution of disputes arising from the Belt Road Initiative. The Indian government had also passed legislation to mandate that commercial disputes be first mediated.

The objectives are clear: Quickly develop an extensive pool of local mediation talent, establish leadership of international mediation, and shape a global dispute resolution platform in a way that is more synchronous with Asian values.

This desire to influence global norms should not be given an unfairly sinister overtone. On contrary, I think that it is an important acknowledgment of responsibility that flows from international economic leadership. With the extensive reach of Asian economies and businesses, the global dispute resolution platforms must be designed in an inclusive way so that the values and norms of this large group are given due respect.

A deep distrust of international courts and arbitration tribunals has underlied the resistance by some Asian leaders to have their disputes referred there. The sense is that the problem-solving and decision-making processes in adversarial processes would not properly give weight to the Asian priorities of harmony, reputation, and order.

The preference for consultation and collective decision-making suggests that if Asian governments take a more active leadership role in shaping the mediation standards, those standards would more readily give regard to the situation of the minorities and those who were previously regarded as “underdogs”. If they can succeed to develop standards which are fair and accepting of cultural standards of different jurisdictions, it would be a true mark of humanity’s progress.

I am quietly confident of this.

One must believe that with the signatories’ collective wisdom and resource, we can move away from binary processes which are highly attritive.

Technology and the growth of Mediation

This leads me to consider the other important element that arises from Asia taking the lead on mediation: the growing influence of digital technology. China, India, Japan, South Korea and Singapore are all home to some of the best tech minds in the world and their technology expertise are developing at breakneck speed.

In the next decade, there will be a further leap in artificial intelligence. The internet of things may well enter mediation practice. Many new devices and apps will be created to allow organisations and individuals to predict and prevent disputes from escalating, and to resolve disputes even more quickly. The advancements in communication and problem-solving tools will be beyond our imagination. I always thought that just as there’s “Face App” that can make an immediate prediction on how we look at different ages, I think in no time there’ll be a “TalkNicely App”** that can help us to immediately reframe some of our angrier spur-of-the moment comments and also detoxify some of the same comments of others directed to us.

Technology will make the mediation process even more agile, strengthening its advantage of cost and time savings over traditional adversarial processes like litigation and arbitration (whose best use of technology for “online dispute resolution” has, in the past years, been tragically constrained to e-filing of documents and video-conferencing). Mediation-lingo will change. And, with the assistance of advanced data-analysis, the quality of mediated outcomes will be enhanced. Mediators will be able to deliver results which are even faster, more out-of-the box, and reach deeper than we can currently imagine.

I should qualify that I don’t believe that mediators will be replaced by robots and artificial intelligence. The complexity of human interactions and our need for a human contact suggests that a face-to-face encounter with a fellow human seems best for problem-solving. (I must admit though I was somewhat impressed by the “robot priest” at the Kodaiji Temple where the Japan International Mediation Centre in Kyoto may conduct some of their cases.)

The Heart of Mediation: the Mediators

Which brings me to the last and most important point of this long post.

A lot of the publicity has surrounded the enforceability of the mediated settlement agreements between the jurisdictions which ratify the Convention (read more here). With the US also being one of the first signatories, that also means more than half the global economy has signed. It’s only a matter of time that the other half does.

I feel, like many other passionate mediation supporters, that it is a privilege to witness the Mediation Convention signing in our lifetimes. It will indeed lend much credibility to our work as mediators.

However, it is also important to be constantly reminded that in the end, the mediated settlement agreement is always first and foremost a contract. What makes a contract enforceable should not be the threat of legal enforcement. Enforceability should be hinged on the signatories to the settlement agreement seeing the advantages to themselves if they performed their obligations under the contract.

Even as mediators take the Convention into account for their training, I think the overarching priority for accreditation should not change. A good mediator must always be recognised by his ability to uplift the spirit of the disputants from the dark despair that they confront when they have run out of tools to resolve the dispute on their own, to instil in them the hope that all is not lost, and to give them the power to transform that hope into a sustainable and real solution.

The Convention will move mediation beyond the realms of small claims conflict, and motivate individuals to make more than superficial investments of their time to develop expertise in mediation practice. There’s definitely more than one good reason to be optimistic and excited for mediation’s future.

*There were in fact only 10 jurisdictions which signed the NY Convention on Day 1. But, it’s probably fairer to allow some discount as air-travel and communications were not as straightforward as it is today.

**If this hasn’t already been developed, I’m staking claim to the originality of the idea right now!

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