COVER FEATURE
Enforcing Mediation Settlement Agreements in Practice : Pitfalls and Possible Solutions
By Ir . Harbans Singh K . S
COVER FEATURE
Notwithstanding the many benefits of mediation extolled by the proponents of this mode of alternate dispute resolution , it is undeniable that in practice there is much concern and scepticism by practitioners and parties alike vis-à-vis proven shortcomings which mar its effectiveness . While this short article does not permit a detailed discussion on all of the said shortcomings , nevertheless it is pertinent to address one of the most notable drawbacks of mediation which may most likely be encountered during the mediation of construction disputes , this being the enforceability of settlement agreements reached by the parties at the end of the mediation process .
Many a party has complained that since the results of the mediation process are not guaranteed by the courts , be they local ( for domestic disputes ) or foreign ( for international disputes ), the enforceability of settlement agreements is adversely compromised and the entire mediation process rendered an exercise in futility . This is often the case when one of the parties refuses to honour the results reached through the mediation process , thus leaving the other party with limited options to proceed further after expending considerable effort , time and costs . The question is : is this true across the spectrum of all the different types of mediation , or is it confined to only a particular type of mediation ?
It is undeniable that the issue of the enforceability of the results of the mediation process is of little or no concern to the parties in court-based mediations ( CBM ) which comprise principally judge-led mediations ( JLM ) and courtannexed mediations ( CAM ). For JLM , the judge who acts as the mediator will record the result of the mediation process as a consent judgement on the terms agreed to by the parties ( provided these are lawful and enforceable ), which consent judgement will be enforced by the courts . For the latter , i . e . CAM , if the mediation process is successful , the result of the process will be formalised in a settlement agreement which will be referred to the relevant court to record as a consent judgement ( also provided the terms of the settlement agreement are lawful and capable of being enforced ); the said consent judgement being thereafter also enforceable by the courts .
The above is reflected in Section 14 ( 2 ) of the Mediation Act 2012 ( Act 749 ) which states “….. If proceedings have been commenced in court , the settlement agreement may be recorded before the court as a consent judgement or judgement of the court ”. Essentially for CBMs , be they JLMs or CAMs , the results of the mediation process are guaranteed by the courts which ensures enforceability . Owing to this positive attribute , in practice , only CBMs have produced effective and enforceable decisions , which bears testimony to the rapid expansion of CBMs in this country .
The above positive enforceability attribute for the CBMs are sadly not reflected in the other types of mediations , be they of the “ ad hoc ”,
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