Mediation week

Guest blog: What’s on the horizon for mediation in 2022?

  • 2 February 2022

In the lead up to ICC’s largest educational event of the year, the ICC International Commercial Mediation Competition, Clifford Chance’s Oliver Carroll shares his three predictions for the alternative dispute resolution mechanism in 2022.

Clifford Chance’s Oliver Carroll
Oliver Carroll, Dispute Resolution Associate, Clifford Chance

Virtual mediation: What now?

As the world continues to grapple with the COVID-19 pandemic, lawyers and parties the world over have grown used to innovative ways of deploying remote technology to resolve their disputes. Just as COVID will eventually become endemic in epidemiological terms, so too will its impact on the world of ADR. Many jurisdictions have embraced remote and hybrid proceedings in litigation – not least because of the cost and time efficiencies which judicious use of such technology can offer. Mediation too has created a ‘new normal’, where parties meeting virtually for some or all of a mediation will likely be a permanent fixture of the ADR landscape – in particular where international travel can be avoided and the disruption to parties’ day jobs minimised by conducting mediations from their desks.

Considerable investment into online platforms which cater for mediation, including allowing for splitting parties into different virtual rooms, virtual flip charts, and confidential chat functions, combined with the growing confidence with which mediators are able to operate in these platforms, means that the virtual mediation will be slicker and more accessible than ever. It will be incumbent on practitioners to align themselves to this ‘new normal’, and embrace the skills which are necessary to make a success of online advocacy, including in the world of mediation.

Institutionalising ADR

One side effect of the COVID-19 pandemic has been an increased backlog of civil cases in courts around the world, with litigation resulting from the pandemic compounding courts’ rising workloads. Claimants – especially in courts dealing with the likes of consumer disputes and insurance claims – face ever-growing waiting times. As justice delayed is justice denied, this has brought into focus the potential for mediation to provide governments and parties with a means of resolving vast swathes of disputes at low cost and outside the institutional confines of judicial systems which remain under severe pressure.

In England and Wales, the Ministry of Justice has consulted on the introduction of formalised mediation in a broad range of disputes, stating that “[a]s we recover from the impact of the pandemic, we want to make the justice system better able to resolve disputes in smarter ways, combining pre-claim portals and court processes with integrated mediated resolution interventions.” In the European Union, the “P2B” (platform-to-business) regulation includes provisions for online platforms to establish their own mediation schemes for resolving disputes with counterparties, meaning that many disputes which would ordinarily clog up small claims courts will fall away before lawyers are even instructed.

Further institutionalisation of ADR will likely occur in the course of 2022. However, it remains to be seen the extent to which parties will respond enthusiastically, or merely treat institutionalised mediation as another pre-action hoop through which parties must jump through before their day in court.

The Singapore Mediation Convention

The United Nations Convention on International Settlement Agreements Resulting from Mediation –  (also known as the Singapore Convention) which was adopted on 20 December 2018 and opened for signature on 7 August 2019 – now counts 55 states as signatories, nine of which have completed their domestic ratification procedures. That number will continue to grow in the course of 2022. Much like the New York Convention for arbitration, the Singapore Convention hopes to facilitate international trade and commerce by enabling disputing parties to easily enforce and invoke settlement agreements reached through mediation across borders. While the Singapore Convention has entered into force, neither the United States, nor China have completed their ratification procedures, and the European Union has not yet signed the treaty despite being closely involved in the negotiation of its terms. Until these large economic powers embrace the Convention, it remains to be seen whether it will do to mediation what the Hague Conventions did for international litigation or the New York Convention for arbitration proceedings.

*Disclaimer: The content of this interview does not reflect the official views of the International Chamber of Commerce. The opinions expressed are solely those of the authors and other contributors.