SMU SIDRA Survey Report 2020

Point of Interest Ethical standards applicable to mediators have become the focus of international attention since the adoption of the Singapore Convention. Article 5 of the Singapore Convention contains grounds for refusing to enforce international mediated settlement agreements, two of which are related to mediator conduct. Specifically, Article 5(1)(e) of the Singapore Convention sets forth that enforcement may be refused if there was a serious breach by the mediator of standards applicable to the mediator or mediation, without which the settlement agreement would not have been signed. Further, Article 5(1)(f) specifies that enforcement may be refused if the mediator failed to disclose information that gives rise to justifiable doubts regarding the mediator’s impartiality or independence and had the mediator disclosed such information, the parties would not have signed the settlement agreement. The Singapore Convention neither contains substantive ethical obligations applicable to mediators nor does it make any reference as to how to determine such standards. Mediators’ ethical standards are usually found in institutional rules and codes of conduct provided by mediation institutions and private accreditation organizations. By way of example, the Singapore International Mediation Institute (‘ SIMI ’) provides a code of professional conduct, which is applicable by default to any mediation process conducted by SIMI’s certified mediators. The code contains obligations pertaining to mediators’ diligence, neutrality, independence, impartiality, fairness and the ability to respect the confidentiality of the process. In another example, the International Mediation Institute (‘ IMI ’) provides a code of professional conduct, which contains similar obligations and it is applicable by default to IMI certified mediators. However, it may not always be clear under which standards mediators are operating during any given mediation; mediators may also be subject to mandatory provisions such as those imposed by the applicable law. Looking forward, this remains an important topic for users, practitioners and lawmakers. It remains to be seen how Courts will determine the applicable ethical standards for the purposes of Article 5 of the Convention. Satisfaction with Choice of Mediator Exhibit 7.3.2 All Users Good ethics Industry/issue-specific knowledge Language Cultural familiarity Efficiency Cost Formal qualifications Dispute resolution experience Mediator from a third-party country 77% 73% 71% 68% 68% 65% 63% 60% 54% The chart refers to the respondents who indicated they were “Very satisfied” and “Somewhat satisfied” with their choice of Mediators. SIDRA INTERNATIONAL DISPUTE RESOLUTION SURVEY 57