Mediators

Accreditation

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;
  • the civil mediators shall be acted by adult citizens that are fair, decent, and enthusiastic in civil mediation work and that have a certain educational background, understanding of policies and legal knowledge; and
  • 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 himself or herself on 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 shall have 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 concerned. 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-trainings on the 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 have the obligation to disclose any circumstances of conflict of interest to the parties before and/or during the mediation proceedings. The mediators shall bear the confidentiality obligations and remain integrity from bribery or corruption, or both. Parties to a dispute may challenge the credibility of the mediators if they have committed any misconduct described above. In severe scenarios, the mediators may also face the legal risks of being charged with personal liabilities.

When the mediators are acting with diligence, and in integrity, normally the mediators are exempted from personal liabilities. 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 regulate that the registered law firms shall purchase professional liability insurance for their lawyers. However, it is debatable whether such a compulsory standard professional liability insurance could cover lawyers’ practice as mediators. As for mediators with other professions, normally they 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 for a mediation agreement to be entered into by the parties and the mediator. For civil mediations or commercial mediations administered by civil mediation commissions or commercial mediation institutions, normally the parties will file a request for mediation in front of these commissions or institutions. There is no need for the parties to agree on an additional mediation agreement with the mediator. Nevertheless, there will be documentation of the appointment and acceptance of mediators.

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 highly rests with the parties’ own will. The parties 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 behalf of the parties. The parties could jointly choose mediators outside the mediator’s 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: 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 and/or the mediation commission or institution. Depend on how severe the consequence or damage is linked with the mediators’ failure of disclosure, the mediators may be charged with personal liability.

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, the mediators’ fee may vary significantly from one case to another. Take mediation at the Beijing Arbitration Commission as an example, below is a standard fee schedule for the mediator’s fee: (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

≤ RMB 500,000

 

RMB 6,500

RMB 500,000 to RMB 1 million (incl.)

1%

RMB 6,500 plus 1% of the amount in dispute above RMB 500,000

RMB 1 million to RMB 3 million (incl.)

0.15%

RMB 11,500 plus 0.15% of the amount in dispute above RMB 1 million

RMB 3 million to RMB 5 million (incl.)

0.1%

RMB 14,500 plus 0.1% of the amount in dispute above RMB 3 million

≥ RMB 5 million

0.05%

RMB 16,500 plus 0.05% of the amount in dispute above RMB 5 million