On The Influence Of The Mediator's Misconduct In The Commercial Mediation On The Settlement Agreement

As an increasingly popular dispute resolution method,commercial mediation has the advantages of confidentiality,flexibility,and self-determination of the parties.The exertion of these advantages depends largely on the behavior of mediator.However,unlike judges and arbitrators,mediators are not decisive about the outcome of mediation.Thus in the study of international commercial mediation,people tend to pay more attention to the procedures and techniques of mediation,while ignoring the influence of mediators.This article takes the mediator's misconduct as the main topic.First,it defines the meaning of the mediator's misconduct by sorting out the types and contents of the laws or norms concerned with the behavior of mediators.Secondly,starting from the three main mediators' standard behavioral models of confidentiality,neutrality and impartiality,this paper analyzes the influence of the misconduct on the settlement agreement.Thirdly,by analyzing the United Nations Convention on International Settlement Agreements Resulting from Mediation(hereinafter referred to as the "Singapore Convention")and the provisions on judicial confirmation in China's judicial practice,it introduces the way and characteristics of the impact which the mediator's misconduct bring to the settlement agreement in granting relief and in the confirmation.Finally,starting with the regulation and challenges of mediation and Med-Arb in China,we will explore ways to improve the conduct of Chinese mediators in order to reduce their impact on the settlement agreement and prepare for China's future participation in the convention.The ways include improving quality of the mediators,ensuring that the standard behavior norms are effective,dealing with some challenges which may be unfavorable to China's implementation of the Convention in the future,like fraud mediation and using the status of the mediator to force the parties to accept the settlements.