The ICC has launched new mediation rules replacing the ICC’s ADR Rules. The new rules set mediation as the default alternative resolution technique, offering a higher degree of support for disputing parties and an efficient and cost-effective means of resolving their disputes.
Mediation can be an efficient and cost-effective means of resolving disputes. The ICC’s new mediation rules, which came into effect on 1 January 2014, replace the ICC Amicable Dispute Resolution (ADR) Rules which had been applicable since 2001.
The new ICC Mediation Rules provide a clear and flexible framework for the conduct of mediation proceedings. The accompanying Mediation Guidance Notes offer the parties practical advice on how ICC Mediation proceedings can be organised as to maximise the chances of successfully resolving their dispute.
The most striking change is the setting of mediation as the default option for dispute resolution. The old rules were tailored to fit all amicable dispute resolution techniques including mediation, conciliation and other techniques. The reason for this change is that since 2001, more than 90 per cent of the proceedings held under ICC ADR rules were converted to mediation. Parties may still agree to conduct other forms of ADR, such as conciliation or neutral evaluation, under the Mediation Rules.
Selection of mediator
As under the old ADR rules, the ICC International Centre for ADR will select the mediator, unless otherwise agreed by the parties. The Centre has developed an open network from which it can select mediators. Selection depends on the subject matter of the dispute, the place of mediation, the language of the mediation and the nationalities of the parties.
Unless otherwise agreed by the parties or as required by applicable law, mediations under the new rules are private and confidential. The same applies to settlement agreements reached as a result of mediation.
In the new rules, the fee structure of mediation has been modified. There is a non-refundable filing fee of USD 2,000. The Centre may request a deposit to cover the administrative expenses, based on the value of the dispute. If the mediation takes place in the context of an ICC arbitration, the filing fee paid for the mediation will be deductible from the Centre’s administrative expenses. Mediator fees are generally assessed on the basis of the time reasonably spent by the mediator and an hourly rate fixed by the Centre, which will generally amount to between USD 400 and USD 600. The parties may also agree to a fixed fee with the mediator.
Mediation and arbitration
The ICC Mediation Rules have been designed to work in conjunction with the ICC Arbitration Rules. The Mediation Guidance Notes encourage arbitrators to consider the use of ‘mediation windows’, i.e. a pause or a stay in the arbitration proceedings. The parties may agree that they would like a sole arbitrator or a member of an arbitral tribunal to assist in negotiating a settlement of their dispute by acting as a mediator. The parties may further agree that, in the event the dispute is not resolved by mediation, the mediator may return to the role of arbitrator. Because of the potential risk that a subsequent award made by the arbitrator is susceptible to being challenged or that its enforceability is impaired, the ICC Mediation Rules allow a mediator to act as an arbitrator in the same dispute only when all of the parties have consented to this in writing.
The ICC Mediation Rules do not prescribe how the mediation should take place. The separate guidelines, the Mediation Guidance Notes, provide practical guidance on how ICC mediation proceedings can be organised and conducted in order to maximise the chances of successful resolution of the dispute. The Notes also give recommendations on the preparation for mediation sessions, the use of case summaries, and the relationship between mediation and arbitration proceedings.
By adopting these new ICC Mediation Rules, the ICC gives an impetus for the use of mediation. Choosing the ICC as mediation institute can be recommended in particular for the resolution of cross-border disputes, as the ICC has ample experience in dealing with international cases while also respecting cultural differences.
During the last few years, the number of ICC mediations has noticeably increased. It is to be expected that the adoption of the new ICC Mediation Rules will strengthen this development which, in turn, may help the ICC to bolster its position as one of the world’s premier arbitration and mediation institutes.