Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?
For civil mediations, normally the civil mediation committees will supervise and administrate the mediators. According to articles 13 and 14 of the PRC Mediation Law, the post of civil mediators shall be held by commissioners of civil mediation committees and by personnel entrusted by the civil mediation committees. Civil mediators shall be adult citizens that are fair, decent and enthusiastic in civil mediation work and that have a certain educational background, understanding of policy and legal knowledge. The judicial administration department under people’s governments at the county level shall regularly conduct professional training among civil mediators.
For commercial mediations, to become an official mediator, one would normally list oneself with the commercial mediation institutions. The accreditation requirements vary from institution to institution, depending on the corresponding institutional mediation rules. It is commonly required that the mediator has good cultural and professional qualities, can conscientiously implement laws and regulations, can safeguard the public interests of the state and society, and can protect the legitimate rights and interests of the parties. There are often also additional rules on the time availability, age suitability and educational background for the mediators. The commercial mediation institutions will also arrange pre-training for mediator candidates.Liability
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
The mediators shall act independently and fairly during the mediation proceedings. The mediators must disclose any conflict of interest to the parties before and during the mediation proceedings. The mediators shall respect confidentiality obligations and remain free from bribery and corruption. The parties to a dispute may challenge the credibility of the mediators for any misconduct described above. In severe scenarios, the mediators may also face the legal risks of being personally liable.
When the mediators are acting with diligence and integrity, normally they would be exempt from personal liability. Nevertheless, there is no compulsory requirement for mediators to obtain professional liability insurance in China. Concerning the professional liability insurance in the PRC legal industry, for example, the bar associations provide that the registered law firms shall purchase professional liability insurance for their lawyers. Yet, it is debatable whether such a compulsory standard professional liability insurance could cover lawyers’ practice as mediators. Normally mediators from other professions do not have specific mediation related professional liability insurance.Mediation agreements
Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?
It is not mandatory that a mediation agreement has to be entered into by the parties and the mediator. For civil mediations and commercial mediations administered by civil mediation commissions or commercial mediation institutions, normally the parties will file a request of mediation to the commissions or institutions. There is no need for the parties to agree on an additional mediation agreement with the mediator. Nevertheless the appointment and acceptance of mediators will be documented.Appointment
How are mediators appointed?
For civil mediations, according to article 19 of PRC Mediation Law, the civil mediation committee may, in light of the requirements for mediating disputes, appoint one or more civil mediators to conduct mediation and the parties may also choose one or more civil mediators for the mediation.
For commercial mediations, the appointment of mediators varies from institution to institution, depending on the corresponding institutional mediation rules. Normally, the appointment of mediators is very flexible and largely a matter for the parties who may appoint one or more mediators from the institution’s mediators list. The parties may also entrust the mediation institution to appoint one or more mediators on their behalf. The parties could jointly choose mediators outside the mediators list as well.Conflicts of interest
Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
Yes, the mediators must disclose possible conflicts of interest.
The following situations might be considered as a conflict of interest: if there exists any past or present relationship, direct or indirect, whether financial, professional or of any other kind, between the mediators and any of the parties, their lawyers or other representatives, or related entities and individuals.
If the mediators fail to disclose a conflict of interests, there is a risk that the mediation result (often in the form of a written mediation agreement) would be challenged by the party or the mediation commission or institution. Depending on how severe the consequences or damage linked with the mediators’ failure of disclosure, the mediators may be found personally liable.Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
There is no uniform fee schedule regulated by the laws or mediation institutions. Subject to the background of the mediators and the venue of the mediation, mediators’ fees may vary greatly from one case to another. For example, below is a standard fee schedule for the mediator’s fee at the Beijing Arbitration Commission. (The parties may agree on additional fee arrangements with the mediators other than this standard fee schedule.)
|Sum in dispute||Percentage of the sum in dispute||One mediator's fee|
Rmb500,000 to Rmb1 million
Rmb6,500 plus 1% of the amount in dispute above Rmb500,000
Rmb1 million to Rmb3 million
Rmb11,500 plus 0.1% of the amount in dispute above Rmb1 million
Rmb3 million to Rmb5 million
Rmb14,500 plus 0.1% of the amount in dispute above Rmb3 million
≥ Rmb5 million
Rmb16,500 plus 0.05% of the amount in dispute above Rmb5 million