Mediation

Mediation procedure

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ICC Mediation procedure steps include:

  1. The procedure with a Request for Mediation filed with the ICC International Centre for ADR:
  1. The Centre acknowledges receipt of Request once it has received the complete Request including the documents and the filing fee
  2. The Centre invites the parties to provide further comments on any outstanding procedural questions. For example, language(s) of the proceeding, place of the mediation meetings, timing of the mediation, attributes of the mediator, etc.
  3. Selection of the Mediator: Jointly nominated by the parties or appointed by ICC.
  4. Parties pay a provisional deposit to cover the costs of the proceedings until after the parties’ first meeting with the Mediator or beyond.
  5. The Centre transfers the file to the Mediator and invites her/him to contact the parties.
  6. First meeting between the Mediator and the parties (Article 7(2) of the Mediation Rules) to discuss the conduct of the Mediation.
  7. The Mediator communicates the notice pursuant to Article 7(2) of the Mediation Rules to the parties.
  8. The Mediation conducted by the Mediator, probably involving one or more physical meetings of the Mediator and the parties, possibly involves the exchange of written documents and conference calls.
  9. The Mediation ends with the Settlement Agreement.

Commencement of mediation

ICC Mediation can begin even without any pre-existing agreement for ICC Mediation.

Proceedings under the ICC Mediation Rules start:

In the case where there is a pre-existing agreement to refer a dispute to the Rules (Article 2), it is necessary to define the date on which the proceedings are commenced. It is from this date that the Centre assumes certain duties and responsibilities. Article 2(5) provides that the proceedings commence on the date on which the Request for Mediation is received by the Centre. Article 2(6) deals with specific time issues in relation to multi-tiered dispute resolution clauses, which commonly provide that neither party may move to the next step, such as arbitration or court litigation, until an agreed time period for settling the dispute by mediation has expired. Under this new provision, the starting point of the period reserved for the mediation is the acknowledgement by the Centre of the receipt of the Request for Mediation or the filing of the registration fee, whichever comes later. Consequently, it is no longer possible for a party to defeat the purpose of a multi-tiered clause by filing a Request for Mediation to trigger the running of the time period but then delaying payment of the filing fee and letting the time period expire without the mediation having been able to progress.

In the case where one party is proposing mediation to the other (Article 3), the Centre can assist the parties in considering the proposal to mediate their dispute and support them in convening the mediation. An important function of the Centre is to provide assistance where one party is interested in using mediation but is unsure how to obtain the agreement of the other party or parties. This can arise where parties come from different jurisdictions with different levels of familiarity and experience with mediation or other ADR procedures. After receiving a proposal from one party to use settlement procedures under the Rules, the Centre will first inform all other parties about the proposal and can then “assist the parties in considering the proposal” as according to Article 3(1). This language is deliberately broad and permissive, enabling the Centre to take such steps as it considers appropriate in all the circumstances. These steps might include holding joint or separate telephone calls with each party to answer questions and provide information about mediation or other settlement procedures under the Rules. Article 3(4) enables the Centre to end its work on the referral and close the file if no agreement has been reached by the parties to refer the dispute to the Rules within a reasonable period following receipt of the Request.

Place and language(s) of the Mediation

The ICC Mediation Rules provide a solution where parties could not agree on the place and language of the mediation. In cross-border mediations, the place of physical meetings for the mediation and the language or languages to be used in the mediation can be important issues on which the parties may find it difficult to reach an agreement. Article 4 of the Rules ensures that any disagreement between the parties over the place of physical meetings or the language does not become an insurmountable hurdle in bringing the parties to the negotiating table. In addition, Article 4 allows for these issues to be decided by the Centre. This can avoid the need for the mediator to make a decision that might damage the mediator’s relations with one or more of the parties early in the proceedings.

Selection and appointments of mediators

The mediator may be jointly nominated where there is an agreement between the parties.

In the absence of such agreement, the Centre will appoint the mediator. Article 5 now also codifies the Centre’s long-standing practice of providing the parties, upon their request, with a list of potential mediators for a case from which the parties can then select their preferred candidate for appointment by the Centre.

Conduct and duration of mediation proceedings

ICC Mediation is a very flexible process and the Rules do not prescribe how the mediation or other settlement techniques should be conducted.

The procedure can be adapted to the needs of the parties, including their cultural and legal backgrounds, as well as the specifics of the dispute. The conduct of the mediation should be discussed and agreed between the parties and the mediator. It is the mediator’s responsibility to display fairness and impartiality when establishing the procedure.

The parties’ agreement to participate in the mediation proceedings pursuant to the ICC Mediation Rules implies that they are at least committed until an initial meeting or a discussion with the mediator has taken place. Further to that discussion, the parties must have received a note from the mediator setting out how the mediation is to be conducted. Parties benefit from such a first meeting with the Mediator to discuss specificities of conducting proceedings; how they could be structured; and what type of results can be achieved.

There is no defined timetable for Mediations. However, the average duration of proceedings is four months from the date the Request for Mediation is filed to the end of the proceeding. The majority of that time is spent by the parties to set-up and prepare for the meetings with the Mediator. This includes deciding on the place, language, technique, appointing the Mediator and paying the deposit.

The actual meetings with the Mediator usually last one to two days. However, in some cases, the parties might wish to meet more often. In other cases, the parties might opt to discuss by video conference or other means to limit the costs associated with physical meetings.

Confidentiality

Confidentiality is an essential feature of ICC Mediation (Article 9). When parties seek to negotiate a settlement, they should be encouraged to speak freely during the proceedings, which are private and confidential.

Similarly, any documents, statements, communications or other information disclosed by another party—or by the Mediator—during the mediation are to be kept confidential. Parties can however agree otherwise and decide that the mediation is not confidential.

However, the fact that settlement proceedings have taken place or will take place is not confidential unless the parties agree otherwise.

Termination of mediation proceedings

There are various ways in which an ICC Mediation can be terminated. Article 8 lists the events that terminate an ICC Mediation either upon request of the parties, the mediator or the Centre, depending upon the circumstances.

The key principle is that the process is voluntary. Mediation proceedings end when parties have signed a settlement agreement settling their dispute. Any party can terminate the proceedings at any time after the initial meeting with the mediator has taken place and the parties have received the Mediator’s note setting out how the mediation is to be conducted.

The Mediator can terminate the mediation at any time if he or she believes that the proceedings will not resolve the dispute between the parties or by notifying the parties that the established mediation procedure has been completed.

Mediation proceedings also end when the Centre notifies parties in writing that (i) any time limit set for the Proceedings, including the any extensions, has expired, (ii) the required payments of costs and fees have not been paid by one or more parties, (iii) there has been a failure to nominate a Mediator or that it has not been reasonably possible to appoint a Mediator. The latter could occur in the exceptional case that a party rejects several mediators appointed by the Centre, and the Centre does not reasonably believe that it can appoint a Mediator who will be acceptable to the parties. However, to date, the Centre has not experienced such scenario.

The Settlement Agreement and enforceability

Successful mediations result in a settlement agreement that is contractually binding upon the parties. The binding effect of a settlement agreement as a contract results from the applicable contract law. In case a settlement agreement is not respected by one of the parties, a party may seek enforcement of the settlement in courts like a breach of contract. A mediated settlement agreement is not an arbitral award and can accordingly not be enforced internationally like an arbitral award under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Nonetheless, a consent award (i.e., an arbitral award rendered by an arbitral tribunal that is made to record a settlement agreement reached through mediation) may—under certain circumstances—be enforceable under the New York Convention.

As a result of the European Union (EU) Directive of 21 May 2008 on certain aspects of mediation on civil and commercial matters, many EU countries have enacted legislation to ensure that mediated settlement agreements can be recognised and enforced from one Member State to another as if they were court judgments or orders and provide for a “mediated settlement enforcement orders.”

Relationship between mediation and arbitration proceedings

The commencement of mediation proceedings under the Rules does not, of itself, prevent the commencement of parallel arbitration or litigation.

Before a dispute arises, parties may not know whether they wish to allow for the possibility of commencing or continuing arbitration, litigation or other proceedings while the mediation is under way. Article 10(2) of the ICC Mediation Rules clarifies that parties are not barred from commencing parallel arbitration or other proceedings unless they have agreed otherwise in writing or applicable law provides in other respects. In practice, it is not uncommon for tiered dispute resolution clauses to require parties to wait until the mediation has ended or a certain period of time has elapsed before commencing arbitration or litigation.

Article 10(3) of the ICC Mediation Rules prohibits a mediator from acting as arbitrator,  judge, expert or party advisor in respect of the same dispute unless all of the parties agree in writing. This establishes the right balance between respecting party autonomy and protecting parties from the due process risks inherent in appointing an arbitrator, a person who has previously acted as a mediator in the same dispute.

The accompanying Mediation Guidance Notes, as well as the suggested Mediation Clauses C and D, provide for further guidance and suggestions with respect to parallel proceedings.

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