Mediation under these Rules is a confidential, voluntary, consensual and private dispute resolution process in which one or more neutral mediator(s) helps the parties to reach a negotiated settlement.
- These Rules shall apply
- Where the parties by executing an agreement decides to settle their dispute or difference by mediation in accordance with BIArb Mediation Rules; or
- Where one of the party to a contract requests BIArb to invite others party or parties to resolve the dispute or difference arising amongst them through mediation under BIArb Mediation Rules and the other party or parties accepts the invitation; or
- Where a Court or Tribunal directs the parties to settle their dispute or difference by way of mediation pursuant to BIArb Mediation Rules or at the premises of BIArb.
- The mediation at BIArb shall be conducted pursuant to these Rules, except where a mandatory provision of law applies.
- Commencement of the Mediation Process
- Where a dispute or difference arises a party may request the commencement of mediation by communicating a written request for mediation to the other party or parties with copies to BIArb. The request for mediation shall contain the summary of the nature of dispute, the quantum in dispute (if any), the relief or remedy sought and shall give details of the mediator or mediators the party considers suitable.
- The parties shall exchange between themselves and shall also communicate to BIArb the names, addresses, phone number, email address of all parties to the dispute, and those who will represent them at the mediation.
- Response to Request for Mediation
Within 14 days starting from the receipt of the request for mediation the party or parties who receives the request for mediation shall notify any other party as well as BIArb whether the mediator or mediators nominated is accepted. Failure to reply within the 14 days period shall be treated as a refusal to mediate.
- Appointment of the Mediator
If all the parties agree on a mediator and the mediator whose name has been proposed is willing to act as a mediator the parties shall notify it to BIArb and the mediation shall then proceed in accordance with BIArb Mediation Rules. However if the parties fail to agree within the time stipulated in Rule 4 (Response to Request for Mediation) it shall be communicated to BIArb who shall then appoint a single qualified mediator who is also willing to serve.
- Mediator’s Disclosure
- If there is any circumstance which is likely to create a presumption of bias or prevent a quick resolution of dispute. The proposed Mediator shall disclose it to all the parties and to BIArb before accepting the appointment. Within 7 (seven) days starting from the date of receipt of such information, any party who objects the appointment of the mediator shall communicate the written objection to BIArb. Upon receiving such objection another mediator shall be appointed while following the procedure provided in Rule 5 of this Rules.
- As soon as possible a Mediator shall disclose in writing to the parties and BIArb, any circumstance that has arisen during mediation which give rise to a justifiable doubt as to the impartiality or independence of the Mediator. If any party has any objection it shall put it in writing to BIArb in which case BIArb shall within 7 (seven) days starting from the receipt of such objection terminate the appointment of the Mediator and another mediator shall be appointed pursuant to the procedure laid down in Rule 5.
- Disqualification of Mediator
Unless the parties agrees otherwise no person shall act as mediator in any dispute where the person has any financial or personal interest in the result of the mediation.
- The Mediation Process
As soon as possible after the appointment the mediator shall commence the mediation and shall give his best effort to conclude the mediation within 42 days starting from his appointment. Unless all the parties give written consent the appointment of the mediator shall not extend beyond a period of three months.
- Role of the Mediator
While taking into account the circumstances of the case, the wishes of the parties and the need for a speedy settlement of the dispute the mediator may conduct the mediation in such manner, as he considers appropriate.
- Role of the Parties
The mediator may have a meeting with the parties collectively or can have private meeting with a party separately and each party shall so-operate with the mediator. A party may request for a private meeting with the mediator at any time during mediation. The parties shall give full assistance to enable the mediation to proceed and conclude it within the stipulated period of time.
- Offer of settlement by the parties
At any stage of the proceedings a party to the mediation may make without prejudice offer for settlement to the other party through the Mediator or on its own.
The parties can have persons of their choice during the mediation in order to assist them. The names and the role of such person shall be notified by each party in advance to the mediators and all other parties. Each party shall have full authority to settle or be accompanied by a person with such authority.
- Termination of the Mediation
The mediation process shall come to end:
- on the execution of the agreement of settlement by the parties;
- where the mediation after consultation with the parties gives a written opinion that it will no longer be justified to have further attempts at mediation; or
- where at any time during mediation a party communicates on writing to the mediator and other parties that the mediation is terminated.
- Settlement agreement
- Where a settlement has been reached the mediator shall prepare the elements of the agreement and shall submit it to the parties for their initials. The Mediator or the representatives of the parties shall then draft a written settlement agreement incorporating the elements so agreed. This draft agreement will be considered by the parties and changes made when agreed by the parties.
- The settlement agreement shall then be signed by the parties or their representatives and BIArb shall, upon receipt of all dues from the parties, authenticate the settlement agreement and furnish a copy of the agreement to all the parties.
- Where a Court or Tribunal directs the parties to settle their dispute or difference by way of mediation pursuant to BIArb Mediation Rules or at the premises of BIArb, the authenticated settlement agreement by BIArb shall be submitted by the parties to the Court. In case where a settlement cannot be reached, BIArb shall issue a certificate to the parties stating their failure to reach a settlement which shall be submitted by them to the Court.
- Mediation is a private and confidential process all communications, documents, information disclosed, made or produced by any party for the purpose of or related to the mediation process shall be disclosed on a privileged and without prejudice basis and no privilege or confidentiality shall be waived by such disclosure. Where the parties manage to settle the differences and disputes the settlement agreement shall remain confidential unless disclosure is necessary for implementation or enforcement.
- Nothing that transpires during the course of the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.
- Unless otherwise agreed, each party shall bear its own cost of mediation despite the outcome of the mediation or of any subsequent arbitral or judicial proceedings. Any other cost and/or expenses shall be borne evenly by the parties and the parties shall be jointly and severally liable to pay the cost to the mediator including:
- Mediator’s fees and expenses
- expenses for any witness or expert advice or opinion requested by the mediator with the consent of the parties; and
- any administrative costs in support of the mediation including BIArb’s costs.
- At any time during mediation the mediator may require the parties to make deposits to cover any anticipates fees and expenses and suspend the process until the deposit is made.
- Surplus funds if any deposited by the parties shall be returned back to the parties at the end of the mediation.
- Mediator’s Role in Subsequent Proceedings
The parties undertake that the mediator shall not be appointed as expert witness, counsel, adjudicator, arbitrator or representative in any later adjudication, arbitration or judicial proceedings whether arising out of the instant mediation or any other dispute in connection with the same contract.
- Recording of Mediation Proceedings
The parties authorises the Mediator to take personal notes regarding dates and progress of the mediation proceedings for his/her personal use. The notes, submissions and other documents shall be stored in a secured location at BIArb and after 45 days starting from the date the mediation is concluded the notes, submissions and other documents shall be destroyed by BIArb unless the parties agree otherwise.
- Exclusion of Liability
The parties jointly and severally release, discharge and indemnify the Mediator(s) and BIArb in respect of all liability whatsoever from any act or omission, whether involving negligence or not, in connection with or arising out of or relating in any way to any mediation conducted under these Rules, save for the consequences of fraud or dishonesty directly attributable to BIArb or the Mediator(s).