Effective January 1, 2014, the International Chamber of Commerce (“ICC”) replaced its Amicable Dispute Resolution rules with new Mediation Rules. The new ICC Mediation Rules (the “Rules”) set clear parameters for mediating disputes, while also providing for additional flexible procedures that allow the parties to resolve their disputes privately and confidentially. Like the ICC ADR Rules they replace, the new Mediation Rules can be used to not only conduct administered mediations but also to conduct various other procedures (or combinations of procedures) geared toward amicably resolving disputes, such as conciliation or neutral evaluation. For example, in conducting a neutral evaluation, the Rules permit a party to obtain essentially an advisory opinion on specific issues of law, issues of fact, or technical issues, such as:
- Issue of law: Did the floods that held up delivery of essential spare parts constitute force majeure?
- Issue of fact: Did the maintenance teams do what was expected of them?
- Technical issue: Were the girders supplied in accordance with stress specifications?
Depending upon the specific terms of the contract, if the parties agreed to refer their dispute to the Rules, mediation under the new Rules may be mandatory. But the Rules have significant cost considerations. For example, the ICC’s administrative expense for disputes over $200,000 is $10,000. That expense is incurred in addition to the fees for the mediator, legal fees, and other associated expenses.
Absent any agreement between the parties and unless prohibited by applicable law, mediation proceedings are private and confidential. The Rules do not provide for confidentiality of the fact that mediation did or will take place, however. Likewise, any settlement agreement between the parties must be kept confidential, except that a party has 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
In the course of the mediation, the parties can exchange settlement proposals, which may lead to a negotiated agreement. Such proposals can be made directly between the parties or through the mediator. In addition, since control over the decision to settle and the terms of any settlement agreement remains with the parties, the mediator has no power to impose a settlement on the parties.
Unless all parties have agreed otherwise in writing or unless prohibited by applicable law, the parties may commence or continue any judicial, arbitral or similar proceedings in respect of the dispute, notwithstanding the pendency of mediation under the Rules.