46 jurisdictions signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (the “Mediation Convention”) at its inception on 7 Aug 2019. In the subsequent 4 years, less than 10 new jurisdictions signed up. One key factor for the slow progress was the COVID-19 pandemic. As governments rightly focused attention on overcoming one of history’s worst global health crisis, activities around international trade-related treaties took a back seat. However, as history has repeatedly shown, major pandemics often precede a dangerous rise in trade and political tensions.
While the world recovers from COVID-19, we are today confronted with conflict-based threats. Widening inequalities are leading to riots and government failures. Aggressive nationalism has led to armed conflict between states in possession of nuclear weapons. Observing these developments, it is tempting to conclude that any international treaty proposing amicable and practical resolution of disputes is a doomed tool. This is an unnecessarily cynical and pessimistic view that focuses too much on the fallibility of human nature. It is one we must counter because cynicism has a nasty tendency to be self-fulfilling.
When there is such a sharp rise in conflict and tensions such as the current times, mediators need to work harder to bring to fruition the ideals and hopes of the drafters of the Mediation Convention.
Styled as a dialogue between a budding young mediator (“EH”) and a professional international mediator from Singapore (“AG”), this article explores what are the possibilities for mediation and looks at how mediation professionals can collectively overcome the foreseeable obstacles to the growth of mediation for international commercial disputes.
EH: I first came to know mediation when I reached out to Sage Mediation to conduct an introductory workshop in my school for students interested in the study of law. At a previous internship in a law firm, I had seen the impact of litigation proceedings. I recall witnessing very bitter exchanges. This and the high legal fees in Singapore created great stress for the clients. I also sat in for a mediation. I felt immediately drawn to it because, in contrast, it appeared as a collaborative and cheaper way of resolving disputes. Parties could walk away amicably, or at least, without further acrimony.
As an intern at Sage, mediation has excited me not only because of its merits. I am seeing that the way we choose to resolve disputes reflects our personal values and cultures. I think the world needs more problem- solving that is inspired by active listening, empathy, and respectful adaptation.
Aloysius, you have been working as a professional mediator for some time. What drew you into this field and what is the promise of mediation to you?
AG: I really like your observation that the way we choose to resolve disputes reveals our personal values. May be for this reason, I had struggled when I was in Law School. Like many, I had been drawn to the study of Law on the idealistic notion of pursuing Justice – with a capital “J”. It became evident to me after reading many case precedents that Law and Justice were, at best, cousins. They did not mean the same thing.
The law does not always offer just and meaningful solutions to human disputes. In practice, in the last few years, this reality has been even starker.
The law, be it as a code in Civil Law, or precedent-based in Common Law, is necessarily backward looking. Parliaments legislate and courts adjudicate based on situations brought to their attention and where it is clear that human conduct requires guardrails. So the behaviours that the laws pertain to needed to happen first. They needed to happen on a sufficient scale and it needed to cause sufficient concern because of the potential good or harm if it happened on a larger scale.
This was fine before the internet when change spread relatively slowly. Legislation could be passed and court precedents could be created before a large number of people engaged in the activity. These could then guide future human conduct. However, modern human community has been evolving new frontiers at a pace which parliaments and courts cannot respond to in time.
From self-driving cars, to cryptocurrency, to AI tools like Chat GPT, regulation has not caught up. And, it will likely continue to fall further behind.
This creates a critical need for dispute resolution processes which can lead parties to fair and sustainable outcomes despite the lack of clear guidance. In the face of growing gulfs between the generations, and between people from different social classes and cultures, mediation is a necessary counter force to encourage empathy and to try to prevent the social fabric from fraying.
For me, mediation has proven attractive because it combined legal principles with creative dialogue and building empathy. Mediation is more than a process. It is a mindset that drives us to use human ingenuity to craft outcomes which are fair, efficient and sustainable. At a time of growing polarization, mediation reminds us that discovering differences can be opportunities for deepening trust and inspiring grace.
As a mediator, I have seen grandsons insulting grandmothers in family disputes. On the other hand, I have also seen leaders apologise and seek forgiveness so as to put an end to bloody feuds. Their wisdom, humility and courage create a path of peace for the future generations. Conflict brings out the best and worst of humanity and mediation offers the means for every member of the community, young and old, rich and poor, to take ownership in defining their Justice and shaping their Peace.
EH: You make mediation sound very ideal. I think that promoting wisdom, humility, and courage is especially relevant for youth. Schools in Singapore feel like they are becoming increasingly individualistic and competitive. Despite many different initiatives to encourage group-work, empathy, and healthy communication, students do not prioritize these over training in individual academic excellence. We are often reminded by parents and teachers of the dangers of falling behind our peers.
I do not want to be too cynical but it does seem like the world generally rewards those who are outstanding in the measurables. It seems like there are winners and losers and the win-win narrative I often hear associated with mediation is just too good to be true.
Do you think this is why mediation has not become more popular? Is this cynicism not why so many jurisdictions have still not signed the Mediation Convention and invested in mediation infrastructure?
AG: While I would more likely brand myself as an idealist than a cynic, I like to think that I am not a naïve idealist. And, I think not being naïve as a mediator is the critical factor in being successful in our pursuit of peace and justice.
This is connected to your earlier insight on how our choices reflect our world view. Many of our leaders and teachers propose a scarcity narrative or the “fixed-pie mentality”. They believe that there is very limited resource in the world, i.e. the pie to be shared is only this big. We need to compete for these limited resources and anyone who comes in second will only get the crumbs. It is not because they are cynics. It is because of the context within which they were raised. And, it is not altogether untrue. In many countries, the top 1% control more than 60% of the country’s wealth.
The flip of the scarcity narrative is the abundance narrative. Some of us call this, expanding the pie. Instead of fighting, we work together to make the pie bigger so even the “crumbs” would be enough to satisfy.
I think most mediators, including myself, would, on a spectrum, lean more towards the abundance narrative. However, many political leaders of today lean towards the scarcity narrative. This is manifested in slogans that propose making one great again and that fire up fears of mediocrity. It is as if a life without power and visible achievement is not meaningful. Such rhetoric appeals to the public. It is populist. And such populism is a dangerous mutation of democracy because it is premised on mobilising the majority by enflaming their fears and resentment of the weakest in the minority. Many of its proponents argue that the scarcity narrative drives excellence while the abundance narrative leads to complacence.
I think the scarcity narrative is what creates rifts and drives wedges between families, businesses, and governments. And, I think the abundance narrative actually supports innovation through the open sharing of ideas.
Win-win may be too good to be true in most cases. However, if we do not give dialogue and collaboration a chance, that is when we really lose. There are many different reasons why different governments have not yet come forward to sign the convention. I served with the government for nearly 2 decades. Policymaking is complex. My guess is that for many governments, it is simply a case where there had been too many other priorities that the governments are confronting, bearing in mind there was the pandemic.
That said, I have also seen a lack of understanding of what mediation is amongst government officials from different jurisdictions. Some of this misunderstanding is sown by individuals and organisations which thrive on the continuation and escalation of conflict. Some examples of such misleading characterisations of mediation include suggestions that it enables the powerful to bypass justice. I have also read critics describe how mediation undermines the rule of law because it denies judges the chance to pronounce their views on evolving situations.
The Singapore Chief Justice Sundaresh Menon once explained that mediation was needed because it ensured access to justice. He encouraged a broader definition of Justice that included and centralized Social Justice. Many disputants today do not have the financial means and time to pursue litigation or arbitration, even if they may have a winning case. Mediation gives them a chance to be heard and gain closure. If you believe, as I idealistically but not naively do, that one of the foundational purposes of the Law is that to protect everyone in society, especially those most vulnerable and marginalized, then modern judicial systems around the world should, as a matter of good, inclusive jurisprudence, include mediation.
EH: What you have explained is the philosophical part of why some jurisdictions may not have incorporated formal mediation processes. You mentioned to me that much of your work today is to help developing nations set up their mediation infrastructure. What is “mediation infrastructure”? Is it complicated to create good infrastructure to promote and provide high quality mediation services?
AG: Building any infrastructure starts with laying the foundation. The more I practice mediation, the more I appreciate it as a craft, and the more I see that good mediation starts with good education. Investment in high quality education in the law schools is key. In the information age, good education is no longer about having the best questioning or process management techniques. It is about helping your students to discern, distil, and personalise what works for them in different contexts.
I once attended a Japanese tea ceremony. It was held in a simply furnished room. Very zen. The master brewer quietly explained the origins of the tea he was using. With skillful and gentle motions, he moved cup, tea leaves, and hot water before me. It was as if I was watching a mix of tai-chi, ballet, and Master Chef. He was clearly enjoying himself and feeling a deep peace as he shared his craft and passion. I think of my practice as a mediator as being like the master brewer.
Good foundations come with learning, reflection, and practice. Mastery comes with a hunger to always seek greater wisdom and perfection. It is a hunger motivated not by egoistic desire to be superior over others but by a desire to see what the craft reveals about ourselves and the world.
It is excellent that many law schools are including mediation in their undergraduate syllabus. It is great that these schools are fostering an exchange amongst academics, judges, and practitioners on what defines good mediation practices in their communities. These investments are what will produce good local mediators.
The second critical infrastructure is a professional mediation centre. To me, a professional mediation centre is one that focuses on delivering prompt and effective mediation services to the public. Because one of the key advantages of mediation is its flexibility, mediation centres must always be improving their delivery to keep mediation accessible.
For this reason, I am annoyed when I hear from individuals that they decided not to mediate because they could not get facilities or they could not afford mediation. Those are terrible excuses not to mediate. And, I think, if true, they reflect on the failure of the mediation centres. There are enough technologies and mediation expertise to increase efficiencies and lower costs for disputants. If we allow cost to become an excuse for not enabling mediation to take place, we lose a key advantage we had over the adversarial processes.
Last but not least, I think a key infrastructure is a standards body. When Singapore launched the Singapore International Mediation Centre in 2014, we launched the Singapore International Mediation Institute on the same day. This was deliberate. Standard bodies assure mediation clients that local mediators have proven themselves competent according to global best practices. They help to raise the quality of mediation practice by aggregating, discerning, and pronouncing what may work best for that time, age, and place. Their work inspires and enables mediators from different contexts to dialogue and enhance the quality of their practice.
Good schools, professional mediation centres, and a world-ready standards body. It may sound like a lot of capital investment is required. And, there is no doubt that some government funding will help to kick start what is arguably a public good. But, it need not, and does not cost a bomb. Good infrastructure takes time, planning and prioritisation. It is not complicated. Each initiative will make some mistakes that require adaptation to one’s context. But, as always, one must never let the pursuit of perfection keep you from the good.
EH: As we have discussed, mediation can have a real, positive impact on varying groups of people, including the youth, legal professionals and organizations who use mediation to resolve their business disputes. With the impact on society in mind, do you think that governments should make it a priority to sign the Singapore Convention?
AG: My biased opinion is yes, in the least, signing the convention sends a strong and powerful signal. To the domestic audience, it shows that the government is interested and committed to the preservation of harmony. In reality, social justice requires the collaboration of everyone in the country. To the international audience, it shows that the government supports efficiency and creativity in problem solving.
Mediation can co-exist with litigation and arbitration. Courts and judges are still needed to provide clarity on the principles by which our communities should live. What signing the convention simply means is the government acknowledging that conflicts come in different shapes and sizes, and societies should have that sophistication and maturity to find the right processes for the conflict.
EH: Now that we understand what governments can do, I think it’s also relevant to consider the other stakeholders who can play a part in fulfilling the promise of mediation. Can you suggest what mediation professionals in the private sector can do to fulfil the promise of mediation?
AG: What has changed since 12 September 2020 when the Mediation Convention came into force is that there is now that added possibility of easy enforcement of mediated settlement agreements. What has not changed is that what really ensures the performance of a mediated settlement agreement is that signatories to the mediated settlement agreement see the benefits of performing the obligations therein. It is not because of the Mediation Convention.
Ironically, the Mediation Convention should motivate mediators to work hard at improving our skills so that their mediated settlement agreements do not need the Convention to be applied. It should be an agreement that truly meet the needs of the signatories and has their full buy-in to the terms.
A major responsibility of mediation professionals is to keep their practice relevant to client needs. Experienced international mediators, recognize that what defines a conflict depends a lot on the context, culture, and age of the parties. Keeping the practice of mediation relevant requires mediation professionals to continually dialogue with an open mind, and to not be too quick to dismiss different practices as unethical or of poor quality.
Private mediators should try to work with state entities and vice versa. In many jurisdictions, I have encountered private mediators and state entities trading blame for the low awareness of mediation. This is not helpful. Promotion of mediation use and protection of the field from rogue practices are shared responsibilities.
For mediation to be professionalized and credible, mediators must be able to state clearly and unequivocally what is good ethics. The Mediation Convention has set general markers for this: the process should be confidential and the mediator should not be imposing outcomes on the parties, which means parties must take ownership of the solutioning.
Mediation professionals should work with government and judicial officers as well as research bodies to actively update what constitute mediation’s best practices, and educate users on these standards.
EH: Thank you for sharing all that you have. I understand from this that the Mediation Convention is the beginning. It is at best a catalyst for an evolution that was already taking place in dispute resolution.
AG: Absolutely correct. While governments and courts move to mandate mediation use, lawyers need to evolve their practice to be more sophisticated in their mediation advocacy where they help to persuade based on empathy-building rather than convince based on empirical data and expert opinion. Law schools and research institutions should be more than aggregators of best practices and should think of what are society’s evolving conflict resolution needs and how mediation can be further adapted to meet those Needs.
This collective effort will be what really enables mediation to fulfil its promise as a counterforce to the many social divisions and a method of resolving conflicts that keeps humans at its center.
Article written by:
Aloysius Goh and Esther Huang
