THE MEDIATION CLAUSE AND THE PRINCIPLE OF VOLUNTARINESS UNDER THE SINGAPORE CONVENTION

Abstract

It is of the essence of the mediation process that it is voluntary. However, there may be in the
contracts a mediation clause, which states that, in case of dispute, the case should be brought to the
mediation sphere before judicial or arbitration proceedings are instituted. In this sense, the Singapore
Convention was signed in August 2019, from which, in civil and commercial contracts, this clause is
now precisely inserted. The purpose of this article is to verify whether the existence of this clause
violates the principle of voluntariness. For this analysis, a literature review was made, observing the
process of mediation, its phases and principles, especially voluntariness, as well as the arbitration
clause itself in the light of Portuguese law (Law No. 29/2013, April 19) and the Singapore Convention.
It follows that the existence of the mediation clause, as well as the requirement to determine that, in
the event of a dispute, in the case of the signatory countries of the Convention, the contract is to be
executed in the context of mediation, does not violate the principle of voluntariness. however, the
parties are referred to the pre-mediation phase, which is mandatory, but may not be followed up or
may abandon the process at any other stage, complying with the principle of voluntariness.