Interdisciplinarity Mediation and the Singapore Agreement

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On December 20, 2018, the General Assembly of the United Nations adopted the United Nations Convention on International Transaction Agreements resulting from Mediation, authorizing the celebration of an opening ceremony for the signing of the Convention on August 7 of 2019 in Singapore, and recommending that the Convention be known as the “Singapore Convention on Mediation”.

 

Undoubtedly, this new international regulation has a great significance for cross-border trade in general and for ODR in particular, since in response to the specific characteristics of the Singapore Convention, we can see that it is a regulatory system that establishes rules for the execution and recognition of the transactional agreements resulting from a mediation, being applicable to any agreement resulting from the mediation that has been concluded in writing by the parties in order to resolve a commercial dispute (“transaction agreement”) and that, at the time of celebration, it has been  international.

And, it is precisely this possibility of judicial enforceability of cross-border Agreements, that are emerging from Mediation the one that places us in a field of legal considerations by imposing the following questions: Do the mediators who assist the parties in the conclusion of cross-border agreements need legal knowledge to such effects? Can interdisciplinarity be applied to this category of mediation considered in the Singapore Convention?

In order to find a correct and informed answer to these questions, we need to perform the following analysis:

1.The Essence of Mediation: As Alicia Millan [2]says, mediation involves the opportunity to communicate, it is a collaborative, agile and unstructured way of dealing with conflicting social situations. It foresees the intervention of a neutral third party, the mediator, that promotes the interaction between the parties without the power to make decisions, but with the knowledge and skills necessary to conduct the process properly, thus contributing to a harmonious coexistence, a value that society demands as a pillar of life in democracy. Mediation focuses on the future, the participants cooperatively co-construct mutually beneficial agreements, the mediator who does not judge or decide, conducts the process that belongs to the parties, who, reserving their prominence, seek the satisfaction of their interests.

2. Interdiscipline: We think like Adriana Patricia Arboleda López and other authors [3] that society requires people with  service vocation and a high social commitment, because basic education is not enough to consolidate a process of insertion into the complex dynamics of life and coexistence. This implies that the disciplinary training, and its complementarity must print on the people a new logic of action and reflection of reality, through useful tools to contribute to the construction of healthy and peaceful coexistence, across the empowerment of mediation as interdisciplinary context. It’s  indisputable the preponderant nature of mediations and their emerging didactic scenarios, supported on the basis of knowledge construction in context.. However, its theoretical and practical configuration responds to the needs of a social subject, which generates structural transformations in the society and in themslves, maintaining a level of social awareness enough for the consolidation of a state of citizenship and development of rights and obligations for the social management of knowledge and equity.

The aforementioned authors say that learning strategies are assumed from the complex and interdisciplinary vision of the virtues and capacities of transformation of thought and social action, where the actors are an active part of the construction and management of the guidelines and contexts of alternative resolution of conflicts, giving a social and structural nuance to such magnitude, that its result generates dialogical relationships and cognitive mediations enough  to transform everyday practices and ways of perceiving reality.

3. Legal Formation and / or Objectives Criteria: we consider, like the authors previously exposed [4], that not only legal training is mediated by this type of transformative actions; people's daily reality is highly influenced by scenarios of tension and contingencies that can be assumed as a tool for transformation and social equilibrium, thus interdisciplinary mediation implies conceptual construction actions and prospective processes of reality, a new logic in the interpretation and argumentation of the problems, and the reorientation of the spinal axes of citizen training.

Alicia Millán [5]says that it is undeniable that the conflict has multiple articulations, therefore there is no profession that is able to cover them in their entirety, consequently transform or prevent them; it involves need to analyze the issues from different perspectives.

Every action of life implies a movement of the framework of human rationality, of the interdisciplinarity of things, because it is linked to countless facts and actions of life.[6]

In this regard and underlining interdisciplinarity, Aiello de Almeida [7] affirms that the goals proposed in the training of mediators have been formulated around the contributions provided by law, psychology, sociology, philosophy – especially ethics – and relationships international – in particular its systematization to structure its negotiation methods. We must not forget the contributions of politics, history and the economy, which link alternative methods with actions aimed at achieving peace in disputes between countries.

The above leads us to consider the objective criteria as a very important resource in the field of interdisciplinary mediation. The objective criteria (or standards), are considered at  Harvard School as the reference framework and the anchoring of mediation, approached by professionals specialized in certain subjects to provide specific elements in order to grant viability, reasonableness and legitimacy to the agreement.

4. By way of conclusion: In accordance with the above, we believe that the intervention of neutral professionals from different disciplines is possible in the mediation processes applied to cross-border trade cases, with the only condition that they have training in conflict resolution . The mediator who does not have legal training, could resort to the use of objective standards provided by a lawyer specializing in Commercial Law or Private International Law, in the course of the process, in order to grant the agreement the legitimacy conditions that it must have for the purposes of the judicial enforceability under the terms of the Singapore Convention.

BIBLIOGRAFY

Aiello de Almedia, María Alba. Mediación y algunos aspectos clave. Ed. Porrúa, México, 2001, p. 18

ARBOLEDA López Adriana Patricia; Gloria Lucia ARANGO Pajón; Luis Fernando GARCÉS Giraldo; Jovany SEPÚLVEDA Aguirre- “ Estrategia educativa para la mediación Interdisciplinaria” – Revista ESPACIOS- Col.39- Nº 15-año 2018- pag. 3- https://www.revistaespacios.com/a18v39n15/a18v39n15p03.pdf

ELISAVETSKY Alberto “La Mediación a la luz de las nuevas Tecnologías” Ed. Erreius- BsAs

Millan Alicia. “MEDIACION E INTERDISCIPLINA”- Ed. Buyati- http://cpcen.org.ar/v2/wp-content/uploads/2013/09/3-Mediaci%C3%B3n-e-Interdisciplina.pdf

Mnookin, R. et al. Mediación. Una respuesta interdisciplinaria. Ed. EUDEBA, Argentina. 1997