Pictured: Lady Carr

The lecture, topical as the UK became a signatory in 2023 but has not yet ratified the Convention, was delivered at the British Institute of International and Comparative Law.

Lady Carr highlights that mediation “is likely to play an important role in promoting the rule of law, both domestically and internationally – as is happening with the promotion and development of international commercial courts”.

In her speech she started by positioning mediation against the broader canvas of alternative dispute resolution (ADR), highlighting that conciliation – also known as mediation – had been, historically, the preferred method for resolving international commercial disputes. The journey into history started with Plato considering the type of judge that, following a family dispute, would reconcile the family for the future and create the environment for keeping family members on good terms with one another.

Lady Carr agreed with the position of Lord Neuberger, expressed, in 2010 that ADR, in general, had a “supplementary and complementary role” to that of litigation.

Lady Carr noted that, in a circular, historical way, the commercial world reinvented mediation when the growth, almost a boom, of international arbitration brought the problems that persistently trouble courts, cost and time. The pandemic added an additional factor: managing commercial contract disputes at times when the survival of the market-place becomes even more critical than the enforcement of the rights of parties, citing the “Breathing Space” initiative undertaken at the Institute where we considered how the legal and business communities might respond to the pandemic in order to foster economic recovery.

Turning her attention to the Singapore Convention, Lady Carr stressed the role it could play in promoting the rule of law, saying that “the bedrock of democratic governance [and] the means by which just law is given effect … the basis on which individuals and businesses thrive within the framework of rights and obligations imposed by legislation and, here, the common law”.

It is wrong, falling back into “old and bad habits: to view litigation, arbitration, mediation and other forms of consensual dispute resolution as standing in opposition to each other: as competitors, with the success of one harming or hindering the success and efficacy of the others. The better view is that the rise of mediation does not mean the fall of litigation. Quite the contrary: mediation can only exist so long as litigation leading to judicial decision-making flourishes.”

On the conditions for the successive introduction of mediation, Lady Carr pointed to experiences from a number of jurisdictions, including India and Singapore. She discussed the development of International Commercial Mediation Centres, but particularly underlined the training of mediation enablers, requiring investment in courts and judiciaries.

Highlighting the need for a “a holistic approach to international mediation, arbitration and litigation” she queried whether there was a need for the establishment of a London Dispute Resolution Committee to make recommendations on how best we can provide for the success of the system as a whole. The introduction of similar initiatives could also support England and Wales becoming a leading international mediation centre.