IBA Maritime and Transport Law Committee‘s 50th birthday mediation panel

Tuesday 18 October 2022

Jonathan Lux

Lux-Mediation, London


Bruce Paulsen

Seward & Kissel, New York


Co-author Jonathan Lux advises that he is proud to have been the Chair at the end of the last millennium of what diehard IBA Maritime Committee members still fondly call Committee A. The current Chairs of the Committee took on the wonderful project to commemorate the 50th anniversary with a book chronicling those first 50 years. This was launched at the special Maritime Committee conference in Singapore in June this year, with a characteristically eclectic program – including the session on mediation, which Jonathan was asked to moderate.

There were to be speakers presenting from Brazil (Olympio Carvalho), China (Henry Li Hai), Europe (Mark Clough, KC), Singapore (Bazul Ashhab), the UK (Dave Andrewartha) and the USA (Bruce Paulsen). Unfortunately the state of Covid restrictions in China in June this year was such that our speaker from China was unable to be with us.

Jonathan set the underlying theme for the panel’s speakers to be this: ‘We can anticipate an upsurge in claims due to Covid and climate change issues/COP 26 and green pledges made. What role does mediation have to play and what stance should we take on issues such as compulsory mediation; facilitative v evaluative mediation; and enforcement (Singapore Convention)?’

Any detailed discussion of this theme was bound to take too long, and therefore Jonathan distilled matters down to four questions which each speaker was asked to focus on, namely:

  1. The state of mediation in your jurisdiction; how actively was it encouraged and supported by law and the Courts?
  2. whether the Singapore Convention has been ratified in your jurisdiction and whether you consider, as some suggest, that it will do for mediation what the New York Convention has done for arbitration?
  3. how the Covid pandemic has impacted mediation and its practice. Will virtual (green) mediation be here to stay – in the interests of a more environmentally sustainable future?
  4. The Russian invasion of Ukraine has come close to threatening a third World War and is certainly having a significant impact on world trade. What role do you see for mediation in keeping the wheels of commerce turning?

This led to excellent presentations from each of the speakers and fascinating panel discussion (not without disagreement here and there) during the Q&A.

A good bit of time was spent by the panellists discussing the state of mediation in their various jurisdictions, ranging from the United States, where arguably the concept of modern mediation began, to jurisdictions such as England where mediation is arguably now more greatly utilised than in the United States, where it has a long history as a voluntary, consensual process. It was mentioned that mediation has a long history as a consensual process in England too, but the suggestion that in England mediation ‘is delivered under the shadow of the court’s power to penalise parties who resist the invitation to mediate’ prompted a lively discussion.

On this topic, it was noted that in the short period before the conference there were further developments in England and Wales whereby the government is not only clearing the path to ratify the Singapore Convention on Mediation but also now of a mind to make mediation mandatory – initially for small claims but also for larger ones as well.

The panellists also conducted a full discussion on the ratification of the Singapore Convention, the architecture of which is like the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards , and which would permit the international recognition of settlements reached through mediation (although one panellist pointed out that this seemed to be a bit unfair to settlements reached through other means). Under the Convention, the party seeking enforcement must produce a copy of the agreement and provide evidence that the agreement was reached through the use of mediation.

If these requirements are met, each contracting state must recognise and enforce the agreement, thus avoiding further litigation. The US has signed the convention, the EU and the UK have not, and it would still need to be ratified, which at this point, seems a long way off. That said, the Convention is in force internationally and that already provides valuable enforcement opportunities.

The panellists also addressed at length the impact of Covid on mediation, the continued utility of virtual mediation and the impact of the war in Ukraine on maritime mediation.

The panel provided the audience with detailed information concerning the state of mediation in their various jurisdictions, where it appeared largely to be alive and well.

It is almost trite to observe that we live in a very troubled world – Russia/Ukraine and China/Taiwan, along with the overarching existential issue of the climate crisis. The panel observed that mediation may not solve these issues (although mediated negotiations may well have a useful role to play) but mediation may just help to keep the wheels of commerce turning in these ever so challenging times.

Let’s lift a glass to Committee A’s next 50 years!