UNCITRAL Notes on Mediation (2021)

Introduction

Purpose of the Notes

1. The Notes list and briefly describe matters relevant to mediation. Prepared with
a focus on international mediation, they are intended to be used in a general and
universal manner by mediation practitioners and parties to a dispute.
2. Given the flexibility that characterizes mediation, procedural styles, practices
and methods to foster a settlement between parties vary. Each approach has its own
merit. Therefore, the Notes do not seek to promote any particular practice as best
practice.
3. The Notes seek to assist parties in better understanding mediation including the
wide and flexible range of possible outcomes. The parties and the mediator may use
or refer to the Notes at their discretion and to the extent they see fit and need not adopt
or provide reasons for not adopting any particular element of the Notes. The Notes do
not impose any legal requirements binding upon the parties or the mediator and are
not suitable to be used as mediation rules.

Main features of mediation

4. Mediation is an efficient and cost-effective dispute settlement mechanism. It
allows parties to prevent or settle a dispute taking their interests into account and
avoiding a win/lose outcome.
5. Mediation can be used for solving a wide range of disputes. Its use results in
significant benefits, such as facilitating the administration of international
transactions by parties and reducing the instances where a dispute leads to the
termination of a commercial relationship.

Non-adjudicatory process
6. Mediation is not formal and in contrast to any adjudicative proceed ings, it does
not rely on complex rules of form and procedure. Indeed, the manner in which a
mediation process unfolds is not legally predetermined.
7. In successful mediation, the parties frequently shift from an adversarial (“one
party against the other”) to a solution-oriented (“both parties against the problem”)
mindset. Even if the parties do not reach a settlement agreement, the process can still
allow them to gain a better understanding of the issues at stake and overcome
unrealistic expectations.

Flexible process
8. Mediation is a flexible process, which allows parties to tailor it as they wish,
taking also into account their needs as well as the circumstances of the case. As a
result, mediation is usually less time and resources consuming than adjud ication.
9. The parties focus on their underlying concerns and interests. They can resolve
potential misunderstandings and develop the basis for a longer term business
relationship.

Voluntary process based on party autonomy

10. Mediation relies on party autonomy. Indeed, the parties retain full control of
their participation in a mediation. Unless mandatory requirements apply under a
relevant source of law, the parties are usually free to:

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 - Agree on the mediator;
- Agree on the conduct of the mediation procedure;
- Determine the scope of issues to be submitted to mediation;
- Develop their own solutions;
- Solve their dispute holistically or agree on a partial solution; and/or
- Terminate the mediation at any time.
11. The following chart provides an overview of the mediation steps.

Invitation to mediation (under

mediation clause, multi-step dispute
resolution clause, or stand-alone
Pre-dispute agreement to mediate) Mediation procedure, which may
contractual OR include:
negotiations Mediation triggering event • organizational discussion;
(mediation clause or (statutory triggering event, or court- • opening statements by the parties on
multi-step dispute ordered mediation) the issues
resolution clause • communication thereon;
including mediation) Party negotiations on • option-development; and
mediation logistics (e.g. place, • drafting of settlement agreement.
Dispute Discussion on Possible duration of mediation: single
time, agenda)
arises content with Enforcement
and day or multiple days.
mediator begins proceedings, if
Appointment of mediator Conduct of mediation: joint session,
private meetings. necessary and
available

Mediation
terminates

Agreement on the conduct of Parties submit their

mediation between the parties explanatory notes on the
and the mediator (e.g. time, Settlement
case to the mediator
place, remuneration of agreement
(subject of the dispute,
mediator) needs, expected outcome of
the mediation)

Without
settlement
agreement

Possible re-opening of
mediation

Legal framework
Singapore Convention on Mediation
12. The United Nations Convention on International Settlement Agreements
resulting from Mediation (“Singapore Convention on Mediation” or “Convention”),
adopted by the United Nations General Assembly on 20 December 2018, 1 applies to
international settlement agreements resulting from mediation, concluded by parties to
resolve a commercial dispute, as defined in the Convention. 2 It provides a uniform
and efficient framework for the enforcement of international settlement agreements

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1
General Assembly resolution 73/198 of 20 December 2018.
2
Article 1(1) of the Convention reads as follows: “This Convention applies to an agreement
resulting from mediation and concluded in writing by parties to resolve a commercial dispute
(“settlement agreement”) which, at the time of its conclusion, is international in that: (a) At least
two parties to the settlement agreement have their places of business in different States; or
(b) The State in which the parties to the settlement agreement have their places of business is
different from either: (i) The State in which a substantial part of the obligations under the
settlement agreement is performed; or (ii) The State with which the subject matter of the
settlement agreement is most closely connected.”

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 resulting from mediation and for allowing parties to invoke such agreements. It
ensures that a settlement reached by parties becomes binding and enforceable in
accordance with a simplified and streamlined procedure.
Mediation laws
13. Mediation laws, such as those modelled on the UNCITRAL Model Law on
International Commercial Mediation and International Settlement Agreements
Resulting from Mediation (the “Model Law on Mediation”) usually define mediation
as a process where parties are assisted by a third person or persons in their attempt to
negotiate and reach an amicable settlement of their dispute. The mediator is to assis t
the parties in their communication so that they can find a solution, and has no
authority to impose a solution on the parties.
14. Essentially, mediation laws seek to strike a balance between protecting the
integrity of the mediation process, for example, by ensuring that the mediator would
make the necessary disclosures, while also providing maximum flexibility by
preserving party autonomy. The laws are designed to accommodate procedural
differences. Therefore, they usually include default provisions on the mediation
procedure. They often focus on domestic mediation, and include provisions on access
to mediation, the establishment of mediation institutions or organizations, the
appointment and accreditation of mediators and the protection of confidentiality.

Mediation rules
15. The parties may agree to use a set of mediation rules. Such rules usually
determine the procedural framework of the mediation. They also contain model
mediation clauses that can be easily adopted by the parties in their commercial
contracts. For example, the UNCITRAL Mediation Rules are a set of procedural rules,
that can be used without an institution administering the mediation, and that parties
are free to modify and adapt as they wish. Parties can also decide to have the
proceedings administered by an institution. Most institutional rules also give parties
a high degree of flexibility.

List of matters for possible consideration in organizing a

mediation

1. Commencement of the mediation

(a) Various basis
(b) Agreement of the parties
(c) Invitation to mediate
(d) Date of commencement of the mediation
(e) Institutional support

2. Selection and appointment of a mediator

(a) How to select and appoint a mediator
(b) Availability, skills and background
(c) Ethical requirements

3. Preparatory steps
(a) Terms of reference, fees and other costs
(b) Administrative assistance
(c) Parties’ attendance and representation
(d) Addressing confidentiality

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 (e) Determining the location and the timing of the mediation
(f) Agreeing on the language of the mediation

4. Conduct of the mediation

(a) Role of the mediator
(b) Initial consultations
(c) Submissions and supporting documents
(d) Mediation sessions and active negotiations

5. Settlement agreement
(a) Settlement proposals
(b) Drawing up the settlement agreement
(c) Enforceability

6. Termination of the mediation

Annotations

1. Commencement of the mediation

(a) Various basis
16. Mediation can be used successfully at different stages of a dispute, either before
or during any arbitral, judicial or other dispute resolution proceedings.
17. Mediation can be carried out based on an agreement between the parties whether
reached before or after a dispute has arisen (see below, paras. 19–22). Mediation often
represents the last possible attempt to find a solution to settle a dispute before formal
proceedings are initiated, or after they are concluded (for example, for the purposes
of enforcement of an arbitral award or a judgment).
18. Mediation can also be carried out based on an obligation established by an
international instrument or by law, or by a direction or suggestion of a court, arbitral
tribunal or competent governmental entity.

(b) Agreement of the parties

Pre-dispute agreement
19. It is advisable for the parties to include in their contract a mediation clause. Such
a clause usually provides that the parties will seek to solve any dispute under the
contract through mediation. Parties usually tailor the me diation clause to their needs.
They may choose to refer to a set of mediation rules (see above, para. 15). Further,
they may indicate the language of mediation and the place of any mediation (see
below, paras. 52–54).
20. A pre-dispute mediation clause can be included in a contract either as a simple
clause, as part of a multi-tiered dispute resolution clause where mediation is one of
the initial tiers, or in a clause which provides that mediation shall proceed
concurrently with arbitral, judicial or other disp ute resolution proceedings. In case of
a multi-tiered clause, it is advisable for the parties to determine periods during which
they must comply with certain actions as part of the multi-tiered process, indicating
steps regarding both timing and the process.

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 Agreement to mediate an existing dispute
21. If there is no pre-existing agreement to mediate, a party can request mediation
at any stage, even if arbitral, judicial or other dispute resolution proceedings are
ongoing.
22. Where a mediation takes place during arbitral or court proceedings, the
arbitration or litigation may be stayed to allow time for conducting the mediation,
unless prohibited by the applicable law. In certain cases, the parties may agree to
proceed concurrently with mediation and arbitration or litigation.

(c) Invitation to mediate

23. The party that wishes to commence a mediation usually sends an invitation to
mediate to the other party or parties.
24. At this preliminary stage, subject to any agreed or mandatory procedure, it is
useful to indicate the following in the invitation to mediat e:
(i) A brief outline of the subject matter of the dispute;
(ii) Any contract or other legal instrument out of or in relation to which the
dispute arises or, in the absence of such contract or instrument, a brief
description of the relevant relationship;
(iii) The identification of the basis for the mediation such as whether the
invitation is made under a mediation agreement or on a different basis;
(iv) The applicable mediation rules, if any, or mediation procedure; and
(v) A period after which if no acceptance of the invitation is received, the party
may elect to treat this as a rejection of the invitation to mediate.

(d) Date of commencement of the mediation

25. It is advisable for the parties to determine the date of commencement of the
mediation for several reasons, including that this date marks the starting point of the
obligation of confidentiality.
26. The commencement date is often the day on which the parties to the dispute
agree to engage in the mediation.

(e) Institutional support

27. The parties may consider referring their disputes to a mediation institution.
Mediation institutions may handle mediation generally or be specialized in certain
types of disputes, such as construction, infrastructure, intellectual property disputes,
or certain mode of settlement, such as online dispute resolution.
28. The availability, nature and cost of institutional support vary depending on the
institution. Support may include:
(i) Providing guidance on the organization of the mediation (for example on
procedural steps and costs);
(ii) Helping select and appoint a mediator;
(iii) Assisting with administrative and logistical matters (for example,
reserving conference facilities and translation services);
(iv) Providing data protection or cybersecurity measures (in partic ular for
online mediation); and
(v) Certifying that a mediation took place.

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 2. Selection and appointment of a mediator
(a) How to select and appoint a mediator
29. After the parties have agreed to engage in a mediation, they usually proceed
with the selection and appointment of the mediator. The parties may agree on a
mediator or on a procedure for appointing the mediator. The advantage of the parties
first seeking to mutually agree on a mediator is that this approach respects the
consensual nature of mediation and provides the parties with greater control and
autonomy, and therefore confidence in the mediation process.
30. Generally, the practice is to appoint a single mediator in order to allow for a
speedy and inexpensive process. Sometimes, the parties appoint two or more
mediators, for example, in cases where:
(i) Special expertise is needed in more than one area if the dispute is complex
(in which case the parties may also choose to appoint an expert instead);
(ii) A single mediator may not be sufficiently familiar with the law and trade
usages, languages or cultures with which an international transaction is
connected; or
(iii) Multiple parties are involved.
31. Certain sets of mediation rules provide for the involvement of an appointing
authority when the parties cannot agree on a mediator. In these cases, the parties may
request an institution or a person to recommend a suitable mediator or to directly
appoint the mediator. 3 In recommending or appointing an individual to act as mediator
in international mediation, the appointing institution or person may consider whether
it is necessary to choose a mediator of a nationality other than the nationalities of the
parties and should strive to respect geographical diversity and gender.

(b) Availability, skills and background

32. When selecting a prospective mediator, the parties may consider the following
elements:
(i) Availability;
(ii) Training and experience in the field of mediation and ability to conduct
the mediation;
(iii) Background such as nationality and legal tradition;
(iv) Any relevant accreditation and/or certification awarded by a recognized
professional mediation standards body; and
(v) Professional expertise and qualifications, including expertise in the subject
matter in controversy, languages and technical skills.

(c) Ethical requirements

33. A mediator usually shall be independent and impartial, and shall not have any
professional, financial or other interest in the dispute and its outcome.
34. From the time of appointment and throughout the mediation, a mediator is
usually required to disclose any circumstances likely to give rise to justifiable doubts
as to her/his impartiality. If the parties have been informed of potential conflicts of
interests and have given their informed consent to appoint the mediator, the mediator
can proceed with the mediation.
35. Many jurisdictions do not allow the mediator to act as an arbitrator or judge in
a dispute that was or is the subject of the mediation or for another dispute that has
__________________
3
For example, the UNCITRAL Mediation Rules foresee in article 3(3) that the parties can refer to
an institution or a person for the selection of a mediator, which the parties may subsequently
appoint.

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 arisen from the same or any related contract or legal relationship, unless othe rwise
agreed by the parties. Laws and mediation rules also often require that the mediator
shall not act as a representative or counsel of a party in any arbitral, judicial or other
dispute resolution proceedings in respect of the dispute that is the subje ct of the
mediation.

3. Preparatory steps
(a) Terms of reference, fees and other costs
36. Once a mediator is selected by the parties, the appointment of the mediator
should be confirmed. The parties may send an appointment letter to the mediator. It
is also common for the parties and the mediator to sign terms of reference which cover
various elements of the mediation and mediators’ involvement in the process. The
terms of reference may contain an outline of the dispute, relevant rules de termining
the conduct of the mediation, such as the ethical standards applicable to the mediator
and relevant disclosure obligations as well as the parties’ agreement regarding
confidentiality (see below, paras. 45–51).
37. The parties and the mediator should agree at the outset on the determination and
allocation of the fees of the mediator and the mediation costs. The fee of the mediator
may or may not be dependent on the outcome of the mediation or the amount in
dispute. Furthermore, regardless of the outcome, the parties should agree from the
outset that the mediator will be paid. The costs of mediation usually include:
(i) The fees of the mediator;
(ii) The fees of the institution administering the mediation, if any;
(iii) The expenses incurred by the mediator, such as for travel, accommodation,
administrative and technological support, if not directly covered by the parties;
(iv) The expenses occurred by experts, if any; and
(v) Other expenses including translation and interpretation costs.
38. The mediator may require the parties to deposit an amount as an advance for
costs and may suspend the mediation until such a deposit is paid. Mediation rules
often have provisions regarding these matters, including whether the deposit should
be made in equal amounts by the parties and the consequences of the failure of a party
to make the required payment. 4 Where the mediation is administered by a mediation
institution, the institution’s services may include fixing the amount of the deposit as
well as holding, managing and accounting for deposits. If the mediation institution
does not offer such services, the parties or the mediator will have to make necessary
arrangements, for example, with a bank or other external provider. In any case, it is
useful to clarify matters, such as the type and the location of the account in which the
deposit will be kept, how the deposit will be managed and whether interest on the
deposit will accrue.
39. Regulatory restrictions may have an impact on the handling of deposits of costs,
such as restrictions in professional and ethical codes, financial regulations relating to
the identity of beneficiaries and restrictions on trade or payment.
40. Allocation of costs is usually agreed by the parties or provided for in the
applicable mediation rules. Generally, if no allocation method is agreed upon, costs
in respect of the mediation are borne by the parties in equal shares. 5 In multiparty
proceedings, an agreement on “equally sharing costs” would need to be further
specified.

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4
See, for example, article 11, paragraphs 3 to 5 of the UNCITRAL Mediation Rules.
5
See, for example, article 11, paragraph 2 of the UNCITRAL Mediation Rules.

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 (b) Administrative assistance
41. The mediator may need administrative support to facilitate the conduct of the
mediation. The parties, or the mediator with the consent of the parties, may arrange
for administrative assistance by a suitable person or institution.

(c) Parties’ attendance and representation

42. If a party has a limitation on the authority to settle (for example, where any
settlement will need to be approved by a board of directors, a ministerial committee
or an insurer), the party should, at the outset, inform the mediator and the other parties
of this limitation. This allows the mediator to discuss these issues with the parties in
advance of the mediation. Producing a power of attorney may be required.
43. Participants in the mediation may include person s who can assist in the
resolution of the dispute.
44. It is common, particularly in international disputes, for a counsel to assist parties
in some or all parts of the mediation process. Legal representation is not required in
all cases as negotiation between the parties is generally interest based and not limited
to legal considerations. Participation by counsel is recommended where there is a
need to discuss the party’s legal rights and obligations, analyse the legal implications
of offers and options for settlement and draft the settlement agreement.

(d) Addressing confidentiality

45. It is advisable for the parties to consider at the outset of the mediation the extent
to which they wish the mediation to remain confidential, and to check the applicable
law and rules to ensure that the confidentiality obligations are clearly spelled out and
sufficiently safeguarded. The parties should consider agreeing on how confidentiality
should be dealt with, covering the following aspects.

The mediator and those involved in the mediation

46. The mediator is generally expected to keep the mediation, including any
information related to, or obtained during, the mediation, confidential. The duty of
confidentiality usually not only applies to the mediator but also to others involved in
the mediation (such as those representing or assisting the parties as well as those
providing administrative support). It is advisable that all those involved in the
mediation should be covered by a confidentiality agreement.

Between the parties

47. The parties may agree on the desired confidentiality regime to the extent not
precluded by the applicable law. They may determine the extent to which the
mediation itself and any information exchanged or disclosed during the mediation
should remain confidential.
48. An agreement on confidentiality may cover one or more of the following
matters: (a) the material or information that is to be kept confidential (for example,
the fact that the mediation is taking place, the identity of the parties an d the mediator,
written and oral communications, the content of the settlement); (b) measures for
maintaining the confidentiality of such information and the duration of the obligation
on confidentiality; (c) circumstances in which confidential information may be
disclosed in whole or in part to the extent necessary to protect a legal right; and
(d) other circumstances in which such disclosure might be permissible (for example,
information in the public domain, or disclosures required by law or a regulator y
body).

Between the parties and the mediator during the mediation

49. The parties should agree on how the mediator will deal with the information
received from a party during the mediation. For example, the understanding could be

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 that the mediator may disclose the substance of that information to any other party to
the mediation where such disclosure is likely to assist the parties in resolving their
dispute. However, when a party gives information to the mediator, subject to a request
that it remains confidential, such information shall not be disclosed to any other party
to the mediation. 6

Admissibility of evidence in other proceedings

50. Any documents prepared primarily for the mediation, any suggestions made
regarding the settlement, or any admissions made by a party in the mediation should
not be admissible as evidence in arbitral, judicial or other dispute resolution
proceedings.
51. The inadmissibility of evidence in other proceedings is to ensure that no party
has a disadvantage resulting from her/his openness regarding substantive information
or views expressed to bring the parties closer to settlement. The inadmissibility of
communications and information exchanged in the mediation as evidence and the
inability to call a mediator as a witness in any post-mediation procedure should cover
all subsequent proceedings that relate to the dispute that is or was the subject matter
of the mediation. Nevertheless, such information usually may be disclosed or
admitted as evidence if required under the law or for the purposes of implementation
or enforcement of a settlement agreement.

(e) Determining the location and the timing of the mediation

52. The parties should determine, at the outset, where the mediation will take place.
When deciding on meeting locations, the following may be considered:
(i) The convenience and neutrality of the location for the parties and the
mediator, including travel to the location;
(ii) The availability and cost of support services; and
(iii) Whether the venue includes separate rooms for each party and a large room
for holding joint meetings with all parties.
53. Mediation can also be conducted fully or partially online, limiting the contact
between the parties and the mediator to virtual meetings. In these cases, the
determination of the applicable law may be affected, and thus predetermination of the
law applicable to the mediation process and the settlement agreement might be of
particular importance.
54. The parties can determine the timing, including agreeing on a time-table and
time frame for the mediation, so as to be able to be properly prepared.

(f) Agreeing on the language of the mediation

55. The parties normally also agree on the language or languages in which the
mediation will be conducted. When multiple languages are to be used during the
mediation, the parties and the mediator need to decide whether the languages are to
be used interchangeably without any translation or interpretation, or whether some
documents and communications (or some relevant sections thereof) need to be
translated into all languages.

4. Conduct of the mediation

(a) Role of the mediator
56. In general, the role of mediators is to build trust between the parties and in the
process so as to reach a settlement of the dispute. Mediators aim, at the outset, to
create a safe, neutral and supportive atmosphere for effective negotiation. Mediators
apply varying degrees of influence in accordance with the parties’ expectations, the

__________________
6
See, for example, article 9 of the Model Law on Mediation.

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 circumstances of the case and different practices. The neutral status of mediators
makes them uniquely qualified to react to parties’ allegations and arguments and aids
the parties in assessing the credibility of their positions. Mediators also assist the
parties in identifying and prioritizing their needs and interests, leading to informed
negotiations and tailor-made solutions to the dispute.
57. Mediators have a variety of methodological techniques and tools at their
disposal to overcome deadlocks and move the process forward. Throughout the
mediation, mediators assist the parties and provide guidance on the discussions, often
helping the parties to think innovatively, thereby empowering them to consider a
range of possible outcomes and find solutions, including creative or otherwise
suitable solutions, which might not be available in court or arbitration.

(b) Initial consultations

58. Once a mediator is appointed, the parties and the mediator typically hold a
preparatory meeting (which can take place in person or remotely, for example,
through a conference call), during which the parties and the mediator work out the
best arrangements for the case, including the procedural conduct (the parties may
choose from the variety of rules available and adapt them to their needs) 7 and
logistical matters. Such initial consultations are intrinsic to the consensual nature of
mediation and are normally undertaken with respect to most organizational decisions
addressed in the Notes, in particular those covered under Note 3 (Preparatory steps).
If the parties have agreed on these matters before the mediation starts, or even in a
pre-dispute mediation agreement, the parties may then confirm their decisions.
59. Further, the initial consultations help clarifying the parties’ expectations on the
conduct of the mediation and allow the parties to assess whether the mediator’s
approach, methods and style fit to the dispute at stake, and to assess the
reasonableness of the fees and costs involved. Therefore, initial consultations are
crucial, even in an institutional mediation where logistical issues might have already
been taken care of.
60. If the parties have not agreed on a procedure to be followed by the mediator or
on a set of mediation rules to govern the mediation, the mediator and the parties can
design the procedure together. The parties may leave it to the discretion of the
mediator to determine how the mediation should be conducted, subject to mandatory
provisions of any applicable law. In particular, at an early stage, the parties
occasionally may have difficulties agreeing on procedural matters, and may request
the mediator to decide on those matters. Some mediators consider that engaging the
parties on routine procedural matters is a first and necessary step to establish
confidence in the process.
61. The parties should seek to clarify various questions at an early stage of the
mediation, including whether the mediation constitutes a bar to initiate arbitral,
judicial or other dispute resolution proceedings. They may also consider questions
regarding the legal framework for the conclusion, implementation and enforcement
of a settlement agreement.

(c) Submissions and supporting documents

62. The parties are free to agree on how the information on their case should be
provided to the mediator and in what form. As part of the mediation process, the
parties usually exchange short papers (sometimes called position papers, mediation
statements, briefs or case summaries).
63. If any such written summary is prepared, it is usually meant to be used only in
mediation with a view to finding a settlement and it is not meant to be used in any

__________________
7
See, for example, article 7, paragraph 1 of the Model Law on Mediation. Examples of the “set of
rules” that may be agreed upon by the parties to o rganize the conduct of the mediation include
the UNCITRAL Mediation Rules and rules of mediation institutions.

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 further litigation. The summary may be submitted by each party or jointly, and it
would usually contain:
(i) The dispute history;
(ii) An explanation of the issues; and
(iii) What the party seeks to obtain in mediation.
64. The parties may agree on documents to be provided that will support their
arguments or clarify the dispute. Such documentation may include contracts and
correspondence, as well as any other relevant information.
65. The parties and the mediator may consider whether it would be helpful to agree
on practical details such as the form in which the information will be conveyed (for
example, in hard copy, electronic form or through a shared platform), including their
format (for example, specific electronic format, with search features).
66. The use of electronic means of communication can make the mediation more
expeditious and efficient. However, it is advisable to consider whether all parties have
access to, or are familiar with, such means. The parties and the mediator may need to
consider issues of compatibility, storage, access, data security as well as related costs
when deciding on electronic means of communication. The parties and the mediator
also need to ensure that electronic communications are adequately protected.

(d) Mediation sessions and active negotiations

67. A solid understanding of key facts and possible outcomes should emerge from
the mediation process. To that end, the mediator usually organizes one or seve ral
meetings, in person or remotely by using, for example, an appropriate platform that
allows for joint and private meetings (referred to as “mediation sessions”). It may be
advisable for the mediator, in consultation with the parties, to determine the ti me to
be allocated to the mediation sessions.
68. Such mediation sessions may be held with all parties present or may be held
separately with each party alone (often referred to as caucus) or a combination of both
joint and private meetings. For example, a mediator may start with a joint meeting
where the parties discuss their views on the dispute and then caucus with the parties
separately. Ex parte communications are not prohibited and, on the contrary, are
considered useful in mediation. However, the mediator is expected to maintain a fair
treatment of the parties and to disclose to any other party that an ex parte
communication is taking place. Fair treatment does not mean equal treatment, as a
mediator may need to spend more time with one party than the oth er. It is
recommended that the parties participate in mediation sessions.
69. The number of mediation sessions and their duration depend on the complexity
of the issues and can be adjusted to the case and the approach favoured by the
mediator and the parties. For exploring the issues and identifying a lasting and
sustainable solution, taking the necessary time is critical.
70. In complex mediations, more attention is required regarding the organization of
mediation sessions. Following the prior and express consent by the parties, interested
stakeholders and/or experts may be invited to attend and participate as necessary. The
issue of maintaining confidentiality in such cases needs to be addressed, e.g. by
confidentiality agreements.

5. Settlement agreement
(a) Settlement proposals
71. The mediator cannot impose a settlement on the parties, but she/he will assist
the parties in reaching an amicable settlement of their dispute. Settlement proposals
can be made directly between the parties or through the mediator.
72. The mediator may, if requested by the parties, recommend terms of settlement.

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 (b) Drawing up the settlement agreement
73. If the parties agree to settle their dispute, they will prepare a settlement
agreement. Depending on the applicable law, the mediator may, if so requested, assist
the parties in preparing the settlement agreement, for example by providing a
summary of the agreed terms. Usually, settlement agreements are made in writing; it
is advisable for the parties to check how this requirement can be satisfied. 8
74. The settlement agreement should be clearly worded, for example, the conditions
of performance should be unambiguously identifiable.
75. When agreeing on the law applicable to the settlement agreement, and when
considering the place where the obligations in the settlement agreement are connected
to, the parties may keep in mind the legal consequences attached thereto, as well as
more generally the legal framework, including the Singapore Convention on Mediation .

(c) Enforceability
76. Generally, the parties comply voluntarily with the obligations set forth in the
settlement agreement. Nevertheless, the parties should consider any requirement as to
the form (including language requirements), content, filing, registering or delivering
of the settlement agreement set forth by the applicable mediation law, the relevant
law at the place(s) of enforcement and the applicable mediation rules.
77. If necessary, the settlement agreement may be enforced in accordance with the
procedure of the State in which enforcement is sought. Such procedure varies in
different jurisdictions.
78. States that are party to the Singapore Convention on Mediation and States that
have enacted legislation based on the Model Law on Mediation presumably follow
the enforcement procedure defined therein. While drafting the settlement agreement,
the parties may take note of the relevant provisions and requirements under the
Singapore Convention on Mediation and the Model Law on Mediation. 9 A list of
reservations made by State parties under article 8 of the Convention can be found on
the UNCITRAL website. 10
79. It is advisable that the parties state their understanding that the settlement
agreement can be used as evidence that resulted from mediation, and that it can be
relied upon for seeking relief under the applicable legal framework.

6. Termination of the mediation

80. After the parties have engaged in mediation, the mediation is usually terminated
by:
(i) The conclusion of a settlement agreement by the parties, on the date of the
agreement, or such other date as agreed by the parties in the settlement
agreement;
(ii) By a declaration of the mediator, after consultation with the parties, if the
required deposits are not paid in full by all parties within a reasonable period
set by the mediator, on the date of the declaration;

__________________
8
For example, article 16, paragraph 6 of the Model Law on Mediation provides as follows:
“A settlement agreement is ‘in writing’ if its conte nt is recorded in any form. The requirement
that a settlement agreement be in writing is met by an electronic communication if the
information contained therein is accessible so as to be useable for subsequent reference.”
9
See, in particular, articles 4 and 5 of the Convention and articles 18 and 19 of the Model Law.
10
Under article 8(1)(a) of the Singapore Convention on Mediation, a State Party may declare that it
shall not apply the Convention to settlement agreements to which it is a party, or to whic h any
governmental agencies or any person acting on behalf of a governmental agency is a party, to the
extent specified in the declaration; under article 8(1)(b) of the Singapore Convention on
Mediation, a State Party may declare that it shall apply this Convention only to the extent that
the parties to the settlement agreement have agreed to the application of the Convention.

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 (iii) A declaration of the mediator, after consultation with the parties to the
effect that further mediation efforts are no longer justified on the date of the
declaration;
(iv) A declaration of the parties addressed to the mediator to the effect that the
mediation proceedings are terminated, on the date of the declaration;
(v) A declaration of a party to the other party or parties and the mediator, if
appointed, to the effect that the mediation proceedings are terminated as to that
party, on the date of the declaration; or
(vi) At the expiration of a defined period in the applicable international
instrument, court order or mandatory statutory provision, or as agreed upon at
the outset by the parties.
81. It is advisable that any termination be clearly and unambiguously recorded as it
may constitute the starting point of subsequent procedures or it may have an impact
on the running of limitation periods applicable to the claim that is the subject matter
of the mediation.

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