SMU SIDRA Survey Report 2020

Comparing User Perspectives of Factor Importance The chart refers to the respondents who indicated the considerations for selection were “Absolutely Crucial” and “Important” in their choice of a dispute resolution mechanism. 4.2.1 While enforceability, impartiality, finality, speed and cost were relevant to the selection of all dispute resolution mechanisms surveyed, there were some notable differences. 4.2.2 For example, fewer mediation users (67%) ranked enforceability of outcome as an absolutely crucial or important factor, compared to arbitration (87%) and litigation users (85%). This likely reflects the fact that mediation users do not expect there to be an expedited enforceability mechanism to be available for mediation. Unlike foreign arbitral awards that may benefit from the long-standing New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘ New York Convention ’), 1 international mediated settlement agreements still lack an internationally recognised and effective expedited enforcement mechanism. Mediation is more likely to be selected where users form the view that there will be a high chance of compliance with a dispute resolution outcome. Conversely, where possible non-compliance with the outcome of a dispute resolution process is a concern and enforcement mechanisms are therefore a priority, mediation is less likely to be selected. It follows that the new Singapore Convention on Mediation (the ‘ Singapore Convention ’) – a mediation convention equivalent to arbitration’s New York Convention – may influence user selection of dispute resolution processes in the coming years. Fifty-two states, including the world’s two largest economies, the United States and China, and three of the four largest economies in Asia, China, India and South Korea have signed the Convention, which will enable the enforcement of mediated settlement agreements amongst the signatory countries. After the Convention comes into force on 12 September 2020 and as more jurisdictions commit to it, it will offer a real alternative to current users of litigation and arbitration for whom enforceability is a significant factor in dispute resolution forum selection. 4.2.3 Fewer mediation users (65%) also ranked finality as an absolutely crucial or important factor, compared to arbitration (80%) and litigation users (82%). Mediation does not offer finality in the sense that parties may choose not to reach a settlement agreement. Thus, where finality is an important factor, users are more likely to select a determinative forum such as arbitration or litigation. 4.2 Comparing User Perspectives of Factor Importance and User Satisfaction Exhibit 4.2.1 Enforceability Impartiality/Neutrality Cost Speed Finality 87% 85% 80% 72% 67% 67% 86% 65% 85% 81% 85% 84% 82% 78% 72% Arbitration Mediation Litigation 1 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21.3 U.S.T. 2517 Importance Percentage Score SIDRA INTERNATIONAL DISPUTE RESOLUTION SURVEY 9