Administered by the ICC International Centre for ADR, the new rules were drafted by the Commission on Arbitration and ADR, a task force of dispute resolution specialists and company representatives from 29 countries. The new mediation rules replace the former ICC ADR rules, a name-change that Andrea Carlevaris, Secretary General of the ICC International Court of Arbitration® said “reflects the reality that 90% of cases are mediation cases.”
“The main value of the ICC mediation rules is that they can help parties overcome hurdles,” said Hannah Tuempel, senior counsel and manager of the ICC International Centre for ADR, during a panel discussion. Ms Tuempel was involved in the revision of the new mediation rules.
She said that the new rules make it easier for parties to overcome common obstacles that thwart mediation. Such hurdles include how to start a mediation if it is not included in a prior contract clause; where to mediate and in what language if both parties come from different countries, how and where to find the right mediator with the appropriate experience and language skills, and how the parties bear the cost of mediation.
The new rules address all those obstacles. If one disputant wishes to mediate but is wary about approaching the other party for fear of showing weakness, the disputant can contact the ICC International Centre for ADR, who will assist the parties in considering a proposal to mediate even if there is no prior mediation clause in their contract. ICC can also help select a neutral mediator, and can even provide a list of qualified mediators that both parties agree upon. Once both parties agree to mediate, the new rules describe the conduct of mediation and stipulate that both parties must bear the cost of mediation in equal parts, unless agreed upon otherwise. Disputants may also contact ICC at any time for mediation guidance and assistance.
The first panel discussion of the event covered mediation’s relevance to businesses today. Speakers included Teresa Garcia-Reyes, senior counsel, litigation, GE Oil & Gas at General Electric; Deborah Masucci, former head of the Employment Dispute Resolution Group at AIG and Chair of the International Mediation Institute; and Doug McKay, Vice-President of international organizations at Shell. Participants noted that mediation had become a more common and important form of cross-border dispute resolution and companies are increasingly interested in law firms’ success rates with mediation.
“If you’re not into mediation, you’re not the right lawyer for us,” said Ms Garcia-Reyes.
Ms Masucci noted that organizations like ICC help add credibility to the mediation process, particularly when parties involve an American corporation in foreign jurisdictions where the foreign party may be distrustful of a US mediator.
The evening’s second panel discussion focused on the new mediation rules and how they help parties initiate, conduct and pay for mediation proceedings. Mr Carlevaris and Ms Tuempel explained the new rules and their attendant guidance notes, while Robert Smit, partner and Co-chair of the International Arbitration and Dispute Resolution Practice at Simpson Thacher; and Jason Fry, co-head of the International Arbitration Group at Clifford Chance; offered the American and European perspective on the new rules, respectively.
While the new rules aren’t relevant for purely domestic US disputes, Mr Smit explained that for the US market, “the real value of ICC mediation rules lies in international disputes.” He said that under the new rules an American corporation can ask ICC to contact the other disputant to get the ball rolling on mediation, which is “valuable assistance indeed.” Mr Smit also cited the benefit of having ICC select the location and language of the mediation, which eliminates the burden of leaving those contentious choices up to the mediator. Also, most American disputants don’t know where to find a qualified mediator in jurisdictions outside of the US, so Mr Smit appreciates that ICC can provide a list of qualified mediators to the disputants.
“Mediation has imposed itself as the main form of amicable dispute resolution,” Mr Carlevaris concluded. “The new ICC rules facilitate the mediation process, helping to avoid common obstacles and stalling”.