Accountability when settlement is reached during mediation
Accountability when settlement is reached during mediation
Mediation is the least explored method of alternative dispute resolution (ADR) in Southern Africa. For various reasons it is considered (wrongly, in our view) a mostly futile exercise. One of the reasons parties tend to shy away from mediation is because it is viewed as toothless – in that any settlement agreement is not immediately executable should one or the other breach the terms of the agreement. Whereas with arbitration and litigation there is an award or an order obliging the parties to comply, failing which there are court sanctioned consequences.
At a glance
- Mediation is an underutilized method of dispute resolution in Southern Africa, but it is gaining traction due to the adoption of court-sanctioned mediation and the commercial viability of resolving disputes through mediation.
- Court-annexed mediation addresses concerns about enforceability, as settlement agreements reached through mediation can be made an order of court, allowing for immediate execution in case of breach.
- The United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention on Mediation) provides a framework for the recognition and enforcement of mediated settlement agreements in international commercial disputes, offering a solution to enforcement concerns. However, the Convention has been ratified by only a few African countries, including Eswatini.
However, for various reasons African mediation is gaining traction, while the concerns surrounding mediation are also being addressed at international levels. The most poignant reasons for the increase in mediation are that (i) many African jurisdictions are adopting court sanctioned mediation; and / or (ii) for commercial reasons it is not viable for the parties to resolve their disputes through either the acrimonious process of litigation or arbitration.
In many countries lawmakers are recognising that mediation is a useful ADR tool. It is, amongst other things, the least harmful for party relationships. If successful, it is much more efficient than litigation and arbitration – saving not only money, but also time, and the dispute is settled by the parties themselves and not a third-party arbitrator or judicial officer. It also eases the burden placed on courts by reducing the number of disputes they need to adjudicate. These are just some of the reasons for an increasing number of jurisdictions writing court-annexed mediation into law. For example, South Africa, Lesotho, Namibia, Zambia, Kenya, Uganda, Tanzania and Rwanda have implemented court-annexed mediation. Parties are either encouraged or compelled to appear before a mediator. It is, however, not mandatory that a settlement is reached at the end of the process.
Making agreements an order of court
Court-annexed mediation has, to a large extent, alleviated the concern regarding the lack of execution in terms of mediated settlements. Most countries with court-annexed mediation allow for settlement agreements reached through mediation to be made an order of court, in turn allowing for immediate execution in the case of parties breaching the terms of settlement.
In certain jurisdictions it is also possible, even if settlement is reached through private mediation (not court-annexed), to make the settlement agreement an order of court. In such jurisdictions the terms of the settlement agreement should contain a provision allowing the parties to make application to court to specifically obtain this order.
When it comes to international commercial disputes, the most revolutionary aid to encouraging parties to consider mediation is the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation (otherwise known as the Singapore Convention on Mediation) (Convention), introduced by the UN Commission on International Trade Law.
Disputes covered by the Convention
The Convention provides for the recognition and enforcement of settlement agreements reached through mediation. However, there is a clear restriction as to which mediated disputes are covered by the Convention if ratified by signatory states. The dispute must be both international and commercial in nature.
A mediated settlement agreement is recognised by the Convention as being international in nature if:
- at least two parties to the settlement agreement are in places of business in different countries; or
- the country in which the parties to the settlement agreement have their places of business is different from:
- either the country in which a substantial part of the obligations under the settlement agreement are to be performed; or
- the country with which the subject matter of the settlement agreement is mostly connected.
A settlement agreement is recognised as being commercial in nature for so long as it does not resolve disputes:
- arising from transactions between one party for a personal, family or household reasons; and/or
- relating to family, inheritance or employment law.
Enforcement shall be in accordance with the rules and procedures governing the settlement agreement and under such conditions as prescribed by the Convention.
In most instances, like the 1958 New York Convention for Arbitration, countries ratifying the Convention shall most likely prescribe that the settlement agreement can be made an order of court, and thereby become executable.
This Convention therefore resolves one of the major concerns parties would have had in referring their international commercial disputes to mediation – lack of enforcement.
Setting aside all the “softer” reasons for considering mediation (e.g. rescuing relationships), parties now, in most instances, should have a mechanism to ensure that mediated settlements can be enforced if breached – whether in a domestic, private, commercial and/or international dispute.
Unfortunately, only 13 African countries, and only Eswatini in Southern Africa, have signed the Convention to date, all of which have yet to ratify and adopt it into law. Hopefully this will increase once the shock-waves of the COVID-19 pandemic and the Russia–Ukraine war settle.
Considering the ramifications both of these events have had and will continue to have on commercial contractual relationships across Africa, there is an increased need for mechanisms to be put in place for parties to settle disputes outside the realms of litigation and arbitration. Now, more than ever, procedures and systems are required to allow parties to settle their disputes (created by circumstances often beyond their control) in a less litigious environment. The Convention is precisely the tool to allow this, and governments are encouraged to consider, sign and ratify the Convention as soon as possible.
The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to our full terms and conditions. Copyright © 2023 Cliffe Dekker Hofmeyr. All rights reserved. For permission to reproduce an article or publication, please contact us email@example.com.
We support our clients’ strategic and operational needs by offering innovative, integrated and high quality thought leadership. To stay up to date on the latest legal developments that may potentially impact your business, subscribe to our alerts, seminar and webinar invitations.Subscribe