Explainer, International, Mediation, Arbitration
How a mediation is administered
A mediator does not impose a decision, yet a mediation runs under a rulebook like any case, and since the Singapore Convention its settlement enforces across borders.
Published Last reviewed 3 min readBy SpyroLex
A mediation is administered under a rulebook like an arbitration: the institution appoints the mediator, sets the timetable and holds the fee. What differs is the end: the parties reach their own settlement rather than take an imposed award. Since the Singapore Convention, in force from 2020, an international commercial settlement can be enforced directly across borders.
Mediation ends in agreement, not an imposed decision
Mediation is different in kind from arbitration. A mediator does not decide the case or hand down an award; they help the parties reach their own settlement, and if the parties do not agree there is no decision to impose. The output is a settlement agreement, a contract the parties make between themselves, rather than a ruling made for them. That difference runs through everything else about how a mediation is administered.2
It is still administered under a rulebook
Although the parties control the outcome, the process is run under rules. An institution adopts mediation rules that set how a mediation starts, how the mediator is appointed, the timetable and the fee, the same administrative spine as an arbitration. The UNCITRAL Mediation Rules (2021), which replaced the 1980 Conciliation Rules, do exactly this. Appointing the mediator, scheduling the sessions and holding the fee are rulebook tasks, so a body that runs both arbitration and mediation runs two rulebooks, not two systems.3
The settlement is enforceable, by a different route
A mediated settlement is a contract, and that once made it harder to enforce across borders than an arbitral award, which travels under the New York Convention. The Singapore Convention on Mediation closed the gap. The United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) lets a party enforce an international commercial mediated settlement directly before the courts of a contracting state, the counterpart to what the New York Convention does for awards. It was adopted on 20 December 2018 and entered into force on 12 September 2020.14
A model law sits behind the convention
States also have a template to adopt at home. The UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation (2018) amended the older 2002 Model Law on International Commercial Conciliation, adding a section on the enforcement of settlements and renaming conciliation as mediation. The Model Law gives a state the domestic rules; the Singapore Convention gives the cross-border enforcement. Together they put a mediated settlement on a firmer footing than a bare contract.12
| Arbitration | Mediation | |
|---|---|---|
| Who decides | The tribunal imposes an award | The parties reach their own settlement |
| The output | A binding award | A settlement agreement, a contract |
| Run under | Arbitration rules | Mediation rules |
| Cross-border enforcement | New York Convention (1958) | Singapore Convention (2018), in force 12 September 2020 |
A mediation is not a looser process than an arbitration. It runs under its own rulebook; what changes is who makes the decision at the end, the parties rather than a tribunal.
Why mediation is the same administrative work
For an institution that offers both, a mediation is another rulebook to run: the mediator is appointed, the sessions are scheduled, the fee is charged and the settlement is recorded, all under the mediation rules. It is the same pattern as administering a case on your own rulebook, with the parties, not a tribunal, making the decision at the end, and a record that shows the process the rules required was followed.3