On 20 December 2018, the General Assembly of the United Nations adopted the United Nations Convention on International Settlement Agreements Resulting from Mediation (known as the “Singapore Convention on Mediation”) (hereinafter the “Singapore Convention”). A signing ceremony was held in Singapore on 7 August 2019, which witnessed the signing of the treaty by many major economies in the world, including the United States, China (PRC), India, Australia, Brazil, Nigeria and South Korea. The EU member states, the UK and Japan have not signed the treaty, but it is likely that they will sign it in the near future. The Singapore Convention went into force on 12 September 2020. As of 9 November 2021, the Convention has 55 signatories, of which 8 has deposited their ratifications.

The Singapore Convention was intended to be a uniform and efficient framework for the enforcement of international settlement agreements resulting from mediation, like the New York Convention on arbitration (the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958). It promotes mediation, inter alia, to a status as important as arbitration.

Mediation or conciliation? Are they referring to two different types of dispute settlement mechanism or just one same thing? Many have argued that conciliation is different from mediation. Upon a careful examination, however, I found that the most important differences so discussed are as follows: (a) They have different statutory bases in certain jurisdictions; and (b) Conciliators are considered capable of playing more active roles than mediators.

If my observations are correct, there are no differences between mediation and conciliation in China. For one thing, mediation has a deep root and long history in China and mediators in China have always been capable of playing all active roles as may be necessary for working out a resolution to the dispute at issue. In contrast, mediation started late in certain foreign jurisdictions and the roles of mediators have always been carefully watched and intentionally contained. Even if the roles of conciliators in certain foreign jurisdictions may still be subject to more restrictions than those of the mediators in China.

For another, there is only one proper Chinese terminology for either mediation or conciliation, which is called “Tiaojie” (调解). When Hong Kong drafted the Mediation Ordinance, the drafters were said to try to find but could not find two ostensibly different Chinese terminologies respectively referring to mediation and conciliation.

Even in English literatures, “mediation” and “conciliation” are now at times used interchangeably. When the UNCITRAL first adopted its model law on mediation in 2002, it was called the Model Law on International Commercial Conciliation. By the time the Singapore Convention was adopted in 2018, the UNCITRAL changed the name of that model law to be the Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation.

Mediation is a tradition and is everywhere in China. The Chinese tradition prefers morality over law, harmony over confrontation, and mediation over adjudication. Even with the reestablishment of a legal system in 1979, mediation has always been an important part of dispute settlement in China. Government officials conduct mediation for labor disputes. Police conducts mediation for neighborhood disputes. The People’s Mediation Committees conduct mediation for civil disputes in their communities. Arbitrators conduct mediation in the arbitration process. Judges conduct mediation in the trial, appeal and enforcement process. In the 1980s and 1990s, judges were even encouraged to avoid judgments and to mediate as many settlements as possible.

Surprisingly, there has been no uniform or framework mediation legislation in China. The law concerning mediation is scattered in many statutes, including the Civil Procedure Act and the Arbitration Act. There is one uniform People’s Mediation Act, but this Act concerns only with mediation of civil (used here as against commercial) disputes by the People’s Mediation Committees which are organized by the lowest level of government.

Further, most, if not all, mediations in China are very closely related to governmental, judicial or arbitral authorities. Mediators on their own have no authority to empower the mediated settlement agreements for enforcement. The parties to such settlement agreements have to rely on the contract law to sue for breach if the settlement agreement is not performed. Although, for the settlement agreements mediated by the People’s Mediation Committee, the parties may jointly apply for affirmation by the court within a very limited period of time.

The Singapore Convention and the discussions leading to the signing of the convention have made the Chinese rethink about mediation. Professional commercial mediation centers have since been on the rise. As early as in 1987, the China Commission for the Promotion of International Trade (“CCPIT”) set up a commercial mediation center, which was called the “Beijing Mediation Center”. The CCPIT has since renamed this center as the “CCPIT/CICC Mediation Center”, and spread such mediation centers to all of its local branches. It is reported that the CCPIT mediation centers received around 3,000 cases in 2019, 514 of which being international. In the 2000s, the Supreme People’s Court of China initiated a “Diversified Dispute Settlement Mechanism Reform” project, and propelled the setup of many commercial mediation centers in China, with the Shanghai Commercial Mediation Center inaugurated on January 8, 2011, which has since become a Member of the US-based JAMS, an internationally well-known mediation services.

Also, some Chinese arbitral institutions have since started to create commercial mediation centers. In 2006, the China Maritime Arbitration Commission established a maritime mediation center. In 2018, the China International Economic and Trade Arbitration Commission set up a mediation center. The Beijing Arbitration Commission and other arbitration commissions have set up their mediation centers as well.

Further, with the publicity of the Singapore Convention in 2018, more and more commercial mediation centers have been set up in many Chinese cities, especially those with special economic development zones, such as Shanghai, Shenzhen and Haikou.

As discussed, mediation has always been popular in China, but its effective use, to a large extent, relies on the governmental, judicial or arbitral authority in a particular case. Stand-alone mediation, directly enforceable at the court, has been rare, if any, in China.

The Singapore Convention, once ratified by the national legislature in China, has the potentials to boost international commercial mediation in China and other countries. Although the EU countries, the UK and Japan are not signatories to the Singapore Convention yet, the EU, the UK and Japanese companies operating in a signatory country may still avail themselves with the enforcement mechanism under the Singapore Convention.

Also, the Singapore Convention may inspire domestic commercial mediation in China. As discussed, currently there is no direct enforcement mechanism for settlement agreements resulting from commercial mediation in China. Such agreements must be litigated for enforcement or entered as an arbitral award or judgment before they could be directly enforced. If the Singapore Convention is ratified in China, with the principle that mediated settlement agreements can be directly enforced, settlement agreements resulting from domestic commercial mediation in China may also become directly enforceable at the Chinese courts. That would make mediation a truly attractive dispute settlement mechanism paralleling arbitration and litigation.

In summary, mediation may have a deep root and long history in China, but mediation or conciliation would remain a process concomitant to arbitration, litigation or other adjudication without a rule that duly mediated settlement agreements may be enforced directly. The very idea that a mediated settlement agreement may be enforced directly is the cornerstone of the Singapore Convention; and it is that idea that has been changing the perception of mediation in China, and may lead to substantial changes in commercial mediation in China soon.