As reported in our earlier post, here, the new Mediation Rules of the International Chamber of Commerce (ICC) came into force on 1 January this year, replacing the ICC’s Amicable Dispute Resolution Rules.
The new ICC Mediation Rules are currently on a ‘world tour’ and were launched in Melbourne on 2 April 2014 (similar events have also been held in Singapore, Hong Kong and Sydney in recent weeks). The introductory address at the launch event in Melbourne was given by the Honourable Justice Clyde Croft of the Supreme Court of Victoria and the event attracted a number of other eminent speakers including Bryan Clark (CEO of ICC Australia), Hannah Tümpel (Senior Counsel and Manager of the International Centre for ADR at the ICC), John Rundell (Managing Director, Stratica International Pty Ltd) and Delcy Lagones de Anglim (Third Party Mediation).
The discussion included commentary by the ICC on some of the more interesting aspects of the new Rules.
Key points to note include:
- Application - the new Rules apply to all agreements to refer a dispute to mediation under the ICC Mediation Rules entered into after 1 January 2014. In the absence of an agreement, any party to a dispute may also propose that the dispute be referred to mediation under the Rules by sending a request to the International Centre for ADR which will then inform the other parties of the proposal (although the agreement of the parties is required prior to the mediation commencing) (Art 3).
- Administration of the Rules – the Rules will be administered by the International Centre for ADR. The Rules emphasise that this is a separate administrative body located within the ICC (Art 1.1) (separate to the International Court of Arbitration for example). The ICC commented that this was a conscious decision, to address any concerns that may otherwise arise regarding the sharing of information between the mediation and arbitration arms of the ICC if the matter does not settle at mediation and subsequently proceeds to arbitration.
- Mediation framework – the new Rules empower the Centre to determine the place and language of the mediation if the parties cannot otherwise agree (Art 4). The ICC commented that this provision is aimed at ensuring that the mediation can at least get off the ground if the parties are unable to agree on these issues.
- Mediator appointment process – where the parties are unable to agree on the mediator, the new Rules entitle the parties to request that the Centre provide a list of candidates to the parties (according to the ICC, the list usually includes in the order of 3 to 5 candidates) (Art 5). The ICC commented that this option already appears to be extremely popular based on the number of requests received since the introduction of the new Rules earlier this year.
- Conduct of the mediation – the new Rules include only brief provisions governing the conduct of the mediation (including, for example, requiring that the parties attend a conference with the mediator (a face-to-face meeting is not prescribed therefore this can occur over the phone) and that following this discussion, the mediator prepare a written note recording the manner in which the mediation is to be conducted) (Art 7). The ICC commented that the new Rules are not intended to be overly prescriptive but are instead aimed at preserving maximum flexibility for the parties.
- Confidentiality – the content of the mediation (but not the fact that the mediation is taking place or has taken place) is to remain confidential under the Rules (Art 9).
The Rules are accompanied by a set of standard clauses that the parties may wish to consider including in their contractual dispute resolution regimes. These clauses also include provisions concerning the interaction between the mediation process and the emergency arbitrator provisions recently introduced in the recent amendments to the ICC Arbitration Rules (in force as from 1 January 2012).
The ICC has also helpfully released a set of “Mediation Guidance Notes” which are designed to provide practical guidance in relation to the administrative and procedural issues associated with the mediation process.
For further information, please contact Geoff Hansen (Partner) or Jennifer Galatas (Senior Associate) in Melbourne, or your usual Herbert Smith Freehills contact.