Defining The Contours Of Non-Mediability

Abstract

In recent years, interest in mediation as a tool of dispute resolution has revived at both local and global level. The Singapore Convention on Mediation has changed the essential character of mediation from being just an alternative to a mainstream choice for the disputing parties. Some States have also introduced mediation specific laws to enforce mediated settlement agreements. While, the popularity of mediation has increased, there is no clarity as to what can be mediated or what can’t be mediated. This paper introduces the concept of ‘non-mediability’ to refer to disputes which are not capable of settlement through mediation. There are hardly any guidelines in national laws or international instruments on what is capable of settlement through mediation. Therefore, this paper examines the concept of non-mediability at national and international level to identify disputes which are non-mediable. At national level, framework of mediation in jurisdictions such as Australia, Hong Kong, India and Singapore are examined. At international level, the concept of mediability in Singapore Convention and UNCITRAL Model Law on Mediation is analysed. Based on the analysis of legal frameworks, this paper propose categories of disputes which are not suitable for mediation. It also carves out the distinction between mediation and processes akin to mediation.