The ability to quickly and conveniently enforce a settlement agreement concluded at mediation is important. Otherwise the efficacy of mediation as a dispute resolution process is undermined. This is even more significant where the dispute has a transnational component, such as where the parties reside/operate in different territorial jurisdictions.

Any settlement agreement in a dispute between parties who both reside in Ireland is simply a contract. As with any other type of contract, enforcement must be by way of court proceedings for specific performance of that contract. A court judgment is required, and thereafter that judgment can be enforced in the various ways normally open to a plaintiff, and depending on the nature of the settlement. Enforcement of a mediated settlement agreement in this way, even though it involves court proceedings in the Irish courts, will inevitably involve further cost, time, delay and stress to the aggrieved party.

Where there is a transnational element to the dispute, those enforcement issues are further exacerbated by the fact that an aggrieved party must bring separate enforcement proceedings in the foreign jurisdiction where the delinquent party resides.

Ireland for Law was established by the Irish Government as part of its drive to attract foreign companies to establish operations in Ireland, and to attract foreign investment here generally. It is described in its website as “the Irish Government’s International Legal Services Strategy”. Huge efforts have been made towards this end, and with considerable success. Ireland has been promoted as a great place to do business in, especially now that we are, for all practical purposes, the only remaining English-speaking common law country within the European Union following Brexit.

Given that mediation has become such a mainstream implement in the dispute resolution toolbox in Ireland, in much the same way as Arbitration, it is a pity to say the least that the European Union (and by extension Ireland) have not signed up to and ratified the United Nations Convention on International Settlements Resulting from Mediation (‘The Singapore Convention’) which would greatly enhance the ability to enforce Irish mediated settlement agreements in commercial disputes in other signatory states. In the words of Dr Ronan Feehily in his article in the Law Society Gazette (September 2022) entitled “A Land Imagined”: “This new international framework for enforcement will serve to raise the international profile of the commercial mediation process, giving it increased credibility and visibility, and the promise of greater regulatory robustness”.

The Singapore Convention would achieve for the enforcement of mediated settlement agreements largely what the New York Arbitration Convention has successfully achieved for the enforcement of Arbitral Awards. In broad terms it would, subject to satisfying certain conditions, enable mediated settlement agreements in one signatory state to be recognised in another signatory state, so that it is directly enforceable in that other signatory state without the additional obstacle of having to issue fresh proceedings there in order to enforce it. The Singapore Convention would operate between signatory states in much the same way as the Brussels/Lugano Conventions operate successfully between EU/EFTA states in relation to the enforcement of court judgments.

As of May 2023, it appears that some 56 countries had signed the Convention, including the United States, United Kingdom, Singapore, China, India, Quatar, Saudi Arabia, Israel, Republic of Korea, and Nigeria. However, few of the present 56 signatories have yet completed a ratification process, including the United States and United Kingdom, though it is worth noting that Japan has now ratified the Convention since October 2023, so that it will come into force there on 1st April 2024. Japan is only the 12th signatory country to actually ratify the Convention.

The European Union, and therefore none of the EU Member States, have yet even signed the Convention. Clearly it would be of great benefit to Ireland’s ongoing efforts to attract foreign direct investment if the Singapore Convention was ratified by the European Union as soon as possible. This is particularly so now that the United Kingdom has advanced its process as far as signing up to it. I would imagine that ratification will follow without much further delay.

Ireland seeks to gain advantage from the departure of the united Kingdom from the European Union. There are many reasons why it should be in a position to do so for all the reasons that have been urged by, inter alios, the Irish Government through Ireland for Law, and its promotion of Ireland as a place to do business. It has been rightly highlighting the advantages of the Irish common law legal system and its unique position within the European Union as the only English speaking common law member state (other than Malta). It has constantly and strongly emphasised the quality of legal services available in Ireland, including the efficiencies associated with the Irish Commercial Court, the quality of the expert legal advice available within the legal professions, and the quality of the Irish judiciary.

It would be worthwhile adding to that list of competitive advantages the expertise also available in Ireland in both Arbitration and Mediation. These are important dispute resolution tools which are to the forefront of dispute resolution in major world economies in which Ireland competes for foreign direct investment.

Curiously the Convention does not define “mediator”, nor does it give any indication of what accreditation would be considered adequate for the purpose of ensuring that any settlement agreement reached at mediation, and which is sought to be enforced in accordance with the provisions of the Convention, has been conducted by a suitably qualified and bona fide mediator. Nor does the Convention prescribe any particular process that would be recognised as mediation as we have come to know it here. This leaves open the possibility that different signatory states may have different concepts of what constitutes a mediation and what qualification or accreditation (if any) is required of the person who has acted as the mediator.

Nevertheless, the Singapore Convention in my view represents a very good starting point in the effort to facilitate the enforcement of transnational or cross-border settlement agreements oof a commercial nature which have been reached through mediation. There are some conditions to be fulfilled. The mediated settlement agreement must be international in character and in relation to a commercial dispute. Excluded from the ambit of the Convention are disputes by consumers for personal, family and household purposes, or relating to family, inheritance or employment law.

Where enforcement is sought under the terms of the Convention, the competent authority may refuse the relief on certain grounds:

  • If a party to the settlement agreement was under an incapacity;
  • If the settlement agreement is not binding, null and void, inoperative or incapable of being performed under the law to which it is subjected, or has been subsequently modified;
  • If there was a serious breach by the mediator in terms of applicable mediator standards, or failure to disclose circumstances that raise doubts as to mediator impartiality or independence without which the party would not have entered into the agreement;
  • If granting the relief would be contrary to the public policy of the Party state.

In the vast majority of cases none of these exclusions are likely to be present. The Singapore Convention is an instrument that would greatly enhance the ability to enforce a mediated settlement agreement in a commercial dispute having an international dimension. Ireland would benefit from the Convention, just as the United Kingdom is likely to do in the near future.

I urge anyone who agrees with me to support calls to the Irish Government to use its undoubted influence at European Union level to try and expedite the process by which the EU would become a signatory to the Convention and then to quickly ratify it.