Table of Contents
Article 1 Definitions
Article 2 Purposes & Administration of Rules
Article 3 Modification of Rules
Article 4 Commencement of Proceedings Based on Agreement
Article 5 Commencement of Proceedings without Agreement
Article 6 Venue and Language of Mediation
Article 7 Selection of Mediator
Article 8 Role of Mediator
Article 9 Fees and Costs
Article 10 Conduct of Mediation
Article 11 Termination of Proceedings
Article 12 Confidentiality
Article 13 Exclusion of Liability
Article 14 Miscellaneous Provisions
Annexes:
Annex A Model Mediation Clause
Annex B Model Declaration of Disclosure
Annex C Model Statement of Availability
Article 1 Definitions
a) The term “mediation” as used in the Rules shall be deemed to cover such settlement procedure or procedures.
b) The term “Mediator” shall be deemed to cover the neutral who conducts such settlement procedure or procedures.
c) Whatever settlement procedure is used, the term “Proceedings” as used in the Rules refers to the process beginning with its commencement and ending with its termination pursuant to the Rules.
Article 2 Purposes & Administration of Rules
a) These Mediation Rules are used for mediating commercial disputes or in the process of arbitrating commercial disputes between both parties.
b) These Mediation Rules (the “Rules”) are administered by Lextar Arbitration Services (“Lextar”), a private organization of alternative dispute resolution.
c) These Rules provide for the appointment of a neutral third party (the “Mediator”) to assist the parties in settling their disputes.
Article 3 Modification of Rules
a) Mediation shall be conducted under the Rules unless the parties agree upon a different settlement procedure or a combination of settlement procedures prior to the confirmation or appointment of the Mediator or with the agreement of the Mediator.
b) All of the parties may agree to modify any of the provisions of the Rules, provided, however, that Lextar may decide not to administer the Proceedings if, in its discretion, it considers that any such modification contradicts the essence of the Rules.
c) At any time after the confirmation or appointment of the Mediator, any agreement to modify the provisions of the Rules shall also be subject to the approval of the Mediator.
Article 4 Commencement of Proceedings Based on Agreement
a) Where there is an agreement between the parties to refer their dispute to the Rules, any party or parties wishing to commence mediation pursuant to the Rules shall file a written Request for Mediation (the “Request”) with Lextar Arbitration Services. The Request shall include:
(1) the names, addresses, telephone numbers, email addresses, and any other contact details of the parties to the dispute and of any person(s) representing the parties in the Proceedings;
(2) a description of the dispute including, if possible, an assessment of its value;
(3) any agreement to use a settlement procedure other than mediation, or, in the absence thereof, any proposal for such other settlement procedure that the party filing the Request may wish to make;
(4) any agreement as to the time limits for conducting the mediation, or, in the absence thereof, any proposal with respect thereto;
(5) any agreement as to the use of a specific language in the mediation process, or, in the absence thereof, any proposal as to language;
(6) any agreement as to the location of any physical meetings, or, in the absence thereof, any proposal as to location;
(7) any joint nomination by all of the parties of a Mediator or any agreement of all of the parties as to the qualifications of the Mediator to be appointed by Lextar where no joint nomination has been made, or, in the absence of any such agreement, any proposal as to the qualifications of the Mediator.
(8) a copy of any written agreement under which the Request is made.
b) Together with the Request, the party or parties filing the Request shall pay the filing fee in force on the date the Request is filed.
c) The party or parties filing the Request shall simultaneously send a copy of the Request to all other parties, unless the Request has been filed jointly by all parties.
d) Lextar Arbitration Services shall send to the parties notice of acknowledgement of receipt of the Request and of the filing fee by email or other electronic means.
e) Where there is an agreement to refer to the Rules, the date on which the Request is received by Lextar shall be deemed to be the date of the commencement of the Proceedings.
f) Where the parties have agreed that a time limit for settling the dispute pursuant to the Rules shall start running from the filing of a Request, such filing, for the exclusive purpose of determining the starting point of the time limit, shall be deemed to have been made on the date Lextar acknowledges receipt of the Request or of the filing fee, whichever is later.
Article 5 Commencement of Proceedings without Agreement
a) In the absence of an agreement of the parties to refer their dispute to the Rules, any party that wishes to propose referring the dispute to the Rules to another party may do so by sending a written Request to Lextar Arbitration Services containing the information specified in Article 4 above. Upon receipt of such Request, Lextar will inform all other parties of the proposal and may assist the parties in considering the proposal.
b) Together with the Request, the party or parties filing the Request shall pay the filing fee in force on the date the Request is filed.
c) Where the parties reach an agreement to refer their dispute to the Rules, the Proceedings shall commence on the date on which the Centre sends written confirmation to the parties that such an agreement has been reached.
d) Where the parties fail to reach an agreement to refer their dispute to the Rules within 15 days from the date of receipt of the Request by Lextar, or within such additional time as may be reasonably determined by Lextar, the Proceedings shall not commence.
Article 6 Venue and Language of Mediation
a) In the absence of an agreement of the parties, Lextar may determine the venue of any physical meeting of the Mediator and the parties, or may invite the Mediator to do so after the Mediator has been confirmed or appointed.
b) In the absence of an agreement of the parties, Lextar may determine the language for conducting the mediation or may invite the Mediator to do so after the Mediator has been confirmed or appointed.
Article 7 Selection of Mediator
a) The parties may jointly nominate a Mediator for confirmation by Lextar Arbitration Services.
b) In the absence of a joint nomination of a Mediator by the parties, Lextar shall, after consulting the parties, either appoint a Mediator or propose a list of Mediators to the parties. All of the parties may jointly nominate a Mediator from the said list for confirmation by Lextar, or the Mediator shall be appointed by Lextar in case all the parties fail to make a joint nomination.
c) Before appointment or confirmation, a prospective Mediator shall sign a statement of acceptance, availability, impartiality and independence. The prospective Mediator shall disclose in writing to Lextar any facts or circumstances which may call into question the Mediator’s independence in the eyes of the parties, as well as any circumstances that could give rise to any reasonable doubt as to the Mediator’s impartiality. Lextar shall provide such information to the parties in writing and shall fix a time limit for any comments from them.
d) When confirming or appointing a Mediator, Lextar takes into consideration the prospective Mediator’s qualifications, including but not limited to citizenship, language skills, education and training, experience, etc., as well as the prospective Mediator’s availability and ability to conduct the mediation in accordance with the Rules.
e) Where Lextar appoints a Mediator, it shall make all reasonable efforts to appoint one having the attributes, if any, which have been agreed upon by all the parties. If any party objects to the Mediator appointed by Lextar and notifies Lextar and all other parties in writing, stating the reasons for such objection, within 15 days of receipt of notification of the appointment, Lextar shall appoint a substitute Mediator.
f) Upon agreement of all of the parties, the parties may nominate more than one Mediator or request Lextar to appoint more than one Mediator, in accordance with the provisions of the Rules. Lextar may also propose to the parties that more than one Mediator be appointed if it sees appropriate.
Article 8 Role of Mediator
a) Unless otherwise agreed by the parties, the mediator shall not act as an arbitrator in respect of the dispute that was or is the subject of the mediation and of a dispute that has arisen from the same or a related contract or legal relationship.
b) The mediator shall not act as a representative or counsel of a party in any arbitral, judicial or other dispute resolution proceedings in respect of the dispute that was or is the subject of the mediation and of a dispute that has arisen from the same or a related contract or legal relationship.
c) The parties shall not present the mediator as a witness in any such proceedings.
Article 9 Fees and Costs
a) The party or parties filing a Request shall include with the Request the non-refundable filing fee required by Article 4(b) or Article 5(b) of the Rules. No Request shall be processed unless the required filing fee is received by Lextar.
b) Following the receipt of a Request pursuant to Article 5, Lextar may request that the party filing the Request pay a deposit to cover its administrative expenses.
c) Following the commencement of the Proceedings, Lextar shall request the parties to pay one or more deposits to cover the administrative expenses of Lextar and the fees and expenses of the Mediator.
d) Lextar may stay or terminate the Proceedings under the Rules if any requested deposit is not paid.
e) Upon termination of the Proceedings, Lextar shall fix the total costs of the Proceedings and shall, as the case may be, reimburse the parties for any excess payment or bill the parties for any balance required pursuant to the Rules.
f) With respect to Proceedings that have commenced under the Rules, all deposits requested and costs fixed shall be borne in equal shares by the parties, unless they agree otherwise in writing. However, any party shall be free to pay the unpaid balance of such deposits and costs should another party fail to pay its share so as to keep the proceedings moving forward.
g) A party’s other expenditure shall remain the responsibility of that party, unless otherwise agreed by the parties.
Article 10 Conduct of Mediation
a) Upon the appointment or confirmation of the Mediator, the Mediator and the parties shall promptly discuss the manner in which the mediation shall be conducted.
b) After such discussion, the Mediator shall promptly provide the parties with a written note informing them of the manner in which the mediation shall be conducted. Each party, by agreeing to refer a dispute to the Rules, agrees to participate in the Proceedings at least until receipt of such note from the Mediator or earlier termination of the Proceedings pursuant to Article 10 (a) of the Rules.
c) In establishing and conducting the mediation, the Mediator shall be guided by the wishes of the parties and shall treat them with fairness and impartiality.
d) Each party shall act in good faith throughout the mediation.
Article 11 Termination of Proceedings
a) Proceedings which have been commenced pursuant to the Rules shall terminate upon written confirmation of termination by Lextar to the parties after the occurrence of the earliest of:
(1) the signing by the parties of a settlement agreement;
(2) the notification in writing made to the Mediator by any party, at any time after it has received the Mediator’s note referred to in Article 9 (b), that such party has decided no longer to pursue the mediation;
(3) the notification in writing by the Mediator to the parties that the mediation has been completed;
(4) the notification in writing by the Mediator to the parties that, in the Mediator’s opinion, the mediation will not resolve the dispute between the parties;
(5) the notification in writing by Lextar to the parties that any time limit set for the Proceedings, including any extension thereof, has expired;
(6) the notification in writing by Lextar to the parties, not less than seven days after the due date for any payment by one or more parties pursuant to the Rules, that such payment has not been made; or
(7) the notification in writing by Lextar to the parties that, in its judgment, there has been a failure to nominate a Mediator or that it is not reasonably possible to appoint a Mediator.
b) The Mediator shall promptly notify Lextar of the signing of a settlement agreement by the parties or of any notification given to or by the Mediator pursuant to Paragraph (a), subparagraphs (2)-(4) herein, and shall provide Lextar with a copy of any such notification.
Article 12 Confidentiality
a) In the absence of any agreement of the parties to the contrary and unless prohibited by applicable law:
(1) the Proceedings, but not the fact that they are taking place, have taken place or will take place, are private and confidential;
(2) any settlement agreement between the parties shall be kept confidential, except that a party shall have the right to disclose it to the extent that such disclosure is required by applicable law or necessary for purposes of its implementation or enforcement.
b) Unless required to do so by applicable law and in the absence of any agreement of the parties to the contrary, a party shall not in any manner produce as evidence in any judicial, arbitral or similar proceedings:
(1) any documents, statements or communications which are submitted by another party or by the Mediator in or for the Proceedings, unless they can be obtained independently by the party seeking to produce them in the judicial, arbitral or similar proceedings;
(2) any views expressed or suggestions made by any party within the Proceedings with regard to the dispute or the possible settlement of the dispute;
(3) any admissions made by another party within the Proceedings;
(4) any views or proposals put forward by the Mediator within the Proceedings; or
(5) the fact that any party indicated within the Proceedings that it was ready to accept a proposal for a
Article 13 Exclusion of Liability
Save for intentional wrongdoing, the parties waive, to the fullest extent permitted under the applicable law, any claim against the mediator based on any act or omission in connection with the mediation.
Article 14 Miscellaneous Provisions
a) Unless all of the parties have agreed otherwise in writing or unless prohibited by applicable law, the parties may commence or continue the arbitral proceedings in respect of the dispute, notwithstanding the mediation proceedings under these Rules.
b) Unless all of the parties agree otherwise in writing, a Mediator shall not act nor shall have acted in any judicial, arbitral or similar proceedings relating to the dispute which is or was the subject of the Proceedings under these Rules, whether as a judge, an arbitrator, an expert or a representative or advisor of a party.
c) Unless required by applicable law or unless all of the parties and the Mediator agree otherwise in writing, the Mediator shall not give testimony in any judicial, arbitral or similar proceedings concerning any aspect of the Proceedings under these Rules.
d) The Mediator, Lextar Arbitration Services as well as its employees, representatives and the family members thereof shall not be liable to any person for any act or omission in connection with the Proceedings, except to the extent such limitation of liability is prohibited by applicable law.
e) In all matters not expressly provided for in the Rules, the Centre and the Mediator shall act in the spirit of these Rules.
Annex A Model Mediation Clause
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, may be submitted to mediation in accordance with the Commercial Mediation Rules.
Note: The parties should consider adding:
(a) The year of adoption of the version of the Rules, where applicable;
(b) The parties agree that there will be one mediator, appointed by agreement of the parties [within 30 days of the mediation agreement], and if the parties cannot agree, the mediator shall be selected by Lextar Arbitration Services;
(c) The language of the mediation shall be …;
(d) The location of mediation shall be … .
Annex B Model Declaration of Disclosure
No Circumstances to Disclose
To the best of my knowledge, there are no circumstances, past or present, likely to give rise to justifiable doubts as to my impartiality or independence. I shall promptly notify the parties of any such circumstances that may subsequently come to my attention during this mediation.
_(Signature)_________ (Name of Mediator)
___________________ (Month/Day/Year)
Circumstances to Disclose
Attached is a statement of: (a)my past and present professional, Business and other relationships with the parties and (b)any other relevant circumstances. [Include statement.] I confirm that those circumstances do not affect my independence and impartiality. I shall promptly notify the parties of any such further relationships or circumstances that may subsequently come to my attention during this mediation.
_(Signature)_________ (Name of Mediator)
________________________ (Month/Day/Year)
Annex C Model Statement of Availability
Statement of Availability
I confirm, on the basis of the information presently available to me, that I can devote the time necessary to conduct this mediation.
_(Signature)_________ (Name of Mediator)
________________________ (Month/Day/Year)
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