Mediation / RULES OF MEDIATION

MEDIATION RULES 

OF THE MIDDLE COMMERCIAL ARBITRATION CENTRE 

 (Effective as of June 01, 2021)

Article 1: Application 

1. The Mediation Rules of the Middle Commercial Arbitration Centre (hereinafter referred to as “the Mediation Rules”) shall apply to resolve disputes by mediation at the Middle Commercial Arbitration Centre.

2. The parties may jointly agree to exclude or modify one or more provisions of these Mediation Rules at any time, with the written consent of the Middle Commercial Arbitration Center and the Mediator, provided that such exclusion or modification is not contrary to the mandatory provisions of laws.

3. In the event that any provision of these Mediation Rules is not in compliance with a mandatory provision of laws applicable to the settlement of a dispute, the mandatory provision of laws shall prevail.

Article 2. Definition

In the Mediation Rules:

1. “The Centre” means the Middle Commercial Arbitration Centre.

2. “List of Mediators” means the Centre’s list of Mediators.

3. “Mediation agreement” means a written agreement, in form of a contract clause or a separate mediation agreement, in which two or more parties agree to resolve their potential or existing disputes through mediation at the Centre in accordance with the Mediation Rules.

4. “Mediated Settlement Agreement” is the outcome of the mediation process, in which the parties agree on the solutions for settlement their dispute in whole or in part.

Article 3: Commencement of mediation where there is a mediation agreement.

1. Any party wishing to commence mediation shall send a Request for Mediation together with the mediation agreement to the Centre.

2. The Request for Mediation has the information as follows:

a. Date, month, year on which the Request for Mediation is made.

b. Names and addresses of the parties in dispute.

c. Summary of the content of the dispute;

d. The Requests/request on solutions of mediation; including monetary valued requests/request and other requests/another request (if any).

e. The name of the person nominated to be the Mediator or suggestion on appointment method or on criteria of the Mediator.

3. The signature of the legal representative or authorized representative where the requesting party is a legal entity; the signature of the individual or authorized representative where the requesting party is an individual.

4. Within 05 working days from the date of receipt of the Request for Mediation and mediation fees from the requesting party following Article 14 of the Mediation Rules, the Centre shall send a Notice and the Request for Mediation to the other parties/another party. Within 10 days from the date of its receipt of such Notice, that party shall send the Statement of Reply to the Centre.

5. The mediation process shall commence on the date that the Centre receives the Request for Mediation and the registration fee. If such another party refuses to mediate or fails to send the Statement of Reply, the mediation process shall terminate in accordance with Article 13 of the Mediation Rules.

Article 4: Commencement of mediation where there is no prior mediation agreement.

1. In the absence of a mediation agreement, any party that wishes to commence mediation shall send to the Centre a Request containing an offer to other party to resolve their dispute through mediation at the Centre under the Mediation Rules.

2. Within 05 working days since the Centre receives the Request, the Centre shall transfer the Request to another party for its consideration. Within 10 days from the date of receipt of the Request, that party shall send a Response to the Centre on whether it accepts to mediate or refuses to do so. The Centre may, at its best effort, assist the parties to reach a mediation agreement.

3. In case the requested party accepts the offer to mediate, the Centre shall instruct the parties to comply with the provisions of Article 3 of the Mediation Rules.

4. In the event that the requested party refuses or fails in sending a Response to the Centre, the mediation under the Mediation Rules shall not be conducted.

Article 5: Appointment of the mediator.

1. The parties agree to choose a Mediator and notify the Centre. If the Mediator is not listed in the List of Mediators, the parties must provide evidence proving that he or she is a Mediator pursuant to the provisions of laws. In case parties fail  to choose a Mediator or in the absence of an agreed appointment method, the Centre’s Director shall appoint a Mediator on behalf of the parties.

2. When appointing a Mediator, the Centre’s Director shall diligently consider the agreement of parties on criteria of the Mediator (if any), and may consider other attributes of the prospective mediator, consisting of nationality, language skills, training and experience, and the prospective mediator’s availability and ability to conduct the mediation under the Rules in order to appoint an appropriate Mediator. The appointed Mediator may not be on the List of Mediators.

3. Before accepting the appointment, the prospective Mediator shall promptly disclose in writing to the Centre any facts or circumstances that might cause any doubt about his/her independence, impartiality, objectivity, and honesty or any failure to meet the parties’ requirements of the mediator (if any). The Centre shall notify the parties of such disclosure and instruct the parties to agree on or to request the Centre to appoint another mediator unless the parties still agree expressly on that Mediator. The selection and appointment of another Mediator shall proceed according to clause 1 and clause 2 of this Article.

Article 6: Representation and assistance of the parties in the mediation.

1. The parties may directly or appoint their representatives and assistants to participate in the mediation proceedings and must notify in writing the names and contact addresses of these persons to the other party and  the Mediator. Such notification should clearly state who the representative is and who the assistant is.

2. In case of appointment of a representative, the representative must have sufficient authority to resolve disputes.

Article 7: Roles and duties of mediator

1. The Mediator shall always be independent, impartial, objective, and honest in assisting the parties to reach solutions for their disputes. The Mediator has the disclosure obligation as stipulated in clause 3 of Article 5 of the Mediation Rules throughout the mediation process.

2. The Mediator shall conduct the mediation in such a manner as he or she considers appropriate with the consent of the parties, taking into account the circumstances of the case, the wishes of the parties, and the need for a quick settlement of the dispute.

3. The Mediator may, at any stage of the mediation process which has the right to make a proposal for solutions to settle the dispute but must not impose a settlement on parties. Such proposals need not to be accompanied by a statement of the reasons thereof.

4. The Mediator may not concurrently act as a representative or consultant for one of the parties, must not act as an Arbitrator for the same dispute or has conducted conciliation, unless the parties agree on the other agreement.

Article 8: Conduct of mediation.

1. The Centre shall organize administrative matters of the mediation in consultation with the parties, including the following contents:

a. Arranging meeting room and fixing date for mediation sessions at the Centre or other venues as agreed by the parties;

b. Organizing the exchange of any information and documents among the parties and the Mediators;

c. Providing general administrative support.

2. When conducting the mediation, the Mediator may request the parties to submit statements on matters in dispute.

3. The Mediator may hold joint mediation sessions with the parties or private mediation sessions with each party. Any party may request  a private mediation session with the Mediator at any stage of the mediation. Mediation sessions may be held via teleconference, video conference, or any other appropriate means.

4. Prior to or after the scheduled mediation sessions mentioned in clause 3 hereinabove, the Mediator may communicate with a party or the parties, in an effort to assist the parties to reach a full settlement of the dispute.

5. Mediation sessions are conducted in confidence unless the parties agreed otherwise. Prior to the beginning of a mediation session, the Mediator and the parties must be promptly informed of the participation of any third party in that mediation session. Such participation must be agreed upon by the Mediator and the other parties.

6. Each party may, at its  discretion or as suggested by the Mediator, disclose its proposals on solutions to settle the dispute to the Mediator.

7. Mediation procedures shall be carried out in the language agreed upon by the parties. If the parties do not reach an agreement, the Mediator shall decide the language of conciliation. If there is a request for translation, the requesting party is solely responsible for the translation and accuracy of the translation.

8. The Centre may arrange the translation services upon the request of a party at the expense of the requesting party.

Article 9: Circulation of notices and documents.

1. The notices and documents in mediation communicated among the parties and the Mediators shall be circulated through the Centre unless such notices and documents are submitted directly to the Mediator in private mediation sessions with the clear instruction that such notices or documents must be kept confidential and not be disclosed to other parties/another party.

2. Notices and documents shall be sent by the Centre to the parties’ addresses provided by the parties and can be sent by direct delivery, registered mail, facsimile, email, or any other method of communication that provides a record of the sending thereof.

Article 10: Duties of the parties in mediation.

1. The parties are to participate in mediation in good faith, including cooperating with each other- and with the Mediator for the mediation to proceed and to conclude promptly with positive outcomes, presenting accurately the details of the dispute, and providing the information and documents related to the dispute at the request of the Mediator.

2. The parties shall also comply with other duties as specified in the provisions of laws.

Article 11: Confidentiality

1. Unless otherwise agreed by the parties in writing, all information produced in or collected from the mediation must be kept confidential by the Mediator, the parties, and any third party participating in the mediation.

2. The whole content of the Mediated Settlement Agreement is also kept confidential unless the disclosure is necessary for the enforcement and implementation of such Mediated Settlement Agreement.

3. Any information exchanged between a party and the Mediator in a private mediation session shall be kept strictly confidential and not be disclosed to any other parties, unless being consented to in advance by the parties that provide such information.

4. No audio-visual recording, no transcript, or formal record will be made of any part of the mediation process, except the note-taking by the Mediator for the sole purpose of conducting the mediation.

5. Any documents or information that could be only obtained through the mediation shall not be used as evidence in subsequent Judicial, Arbitral or other proceedings. The parties shall not require the Mediator to be a witness in any subsequent proceedings, whether in relation to the dispute that has been mediated or any other disputes in connection with the same transaction.

Article 12: Mediated Settlement Agreement.

1. The Mediated Settlement Agreement shall be made in writing and contain the following contents:

a. The basis of the conduct of mediation.

b. The general information of the parties.

c. The brief description of the dispute.

d. The settlement agreements and solutions.

e. Other contents agreed by the parties in accordance with provisions of laws.

e. Signatures of the Mediator and the parties.

2. The Mediated Settlement Agreement is binding on the parties and enforceable as under the regulations of civil laws and other relevant legal documents.

Article 13: Termination of the mediation process.

1. The mediation process shall be terminated in the following circumstances:

a. Where the parties conclude a mediated settlement agreement.

b. Where the Mediator, after consulting with the parties, announces in writing that in the Mediator's assessment, the continuing of the mediation process will not promise any possibilities of positive outcomes.

c. Where a party or the parties send a written notice to the mediator stating that such party or the parties wish to terminate the ongoing mediation process.

d. Where the requested party refuses to mediate; or fails to send the Statement of Reply to the Centre within the period of time fixed by the Centre.

e. Where the period of time for payment of mediation fees fixed by the Centre has expired and there is no appropriate action taken.

2. The Centre shall notify the parties and the Mediator of the termination of the mediation process by  official notice.

Article 14: Mediation fees and arising expenses.

1. The mediation fees are calculated in accordance with the Schedule of the Mediation Fees of the Centre and consists of:

a. Registration fee;

b. Remuneration of the Mediator(s);

c. Administrative fees in connection with the dispute settlement for the Centre.

2. Arising expenses are charged on the basis of actual expenses, including:

a. Expenses for travelling, accommodation and other expenses of the Mediator;

b. Arising expenses for other requests of parties.

3. The fees and expenses mentioned in clause a, this Article shall be paid by requesting party. In case both parties request, the registration fee shall be equally allocated between/among the parties. Unless the parties agreed otherwise, the fees and expenses as mentioned in point b, point c clause 1 and point a clause 2, this Article shall be equally allocated between/among the parties, the expenses divided equally point b, clause 2, this Article shall be paid by requesting party. A party may pay on behalf of another party/other parties for any outstanding portion of fees and expenses mentioned above.

4. The payment of mediation fees shall be made pursuant to the Schedule of Mediation Fees and specific instructions of the Centre. The Center may request a party or the parties to advance against expenses arising during the mediation. If such advance payment is not made in full, the Centre is entitled to decline to provide the services requested by the parties or to request the Mediator(s) to suspend the mediation process.

5. Upon the termination of the mediation process, the Centre shall calculate the actual expenses as mentioned in clause 2, this Article. If the advance exceeds the actual expenses, the Centre shall refund the remaining amount; if the actual expenses exceed the advance, the parties shall pay the additional fees to the Centre.

Article 15: General provisions

1. The Mediator, the Centre and its employees shall not be liable to any party for any action or inaction in connection with the conduct of mediation by the Mediator in the mediation process under the Mediation Rules unless such act or omission is a violation of prohibitions under the laws.

2. For all matters not expressly provided for in the Mediation Rules, the Centre, and the Mediator shall act in the spirit of the Mediation Rules and make all efforts for the dispute to be resolved in a fairly and efficiently.