The ICC new Mediation Rules comes into effect on January 1st, 2014, replacing the ICC ADR Rules which was launched by ICC 13 years ago.
The ICC Mediation Rules are managed by ADR Center (“Center”) of ICC as an individual management institution within the ICC. The center is the only authorized institution to manage the procedures under this Mediation Rules. No matter whether parties have agreed to adopt the Mediation Rules in advance, they can apply to the center to adopt the Mediation Rules to conduct the mediation.
The involvement of the center facilitates the mediation process. For instance, the center can assist parties to decide the place and language of the mediation. If parties have no agreement, the center can decide the place of meeting of parties, or invite the mediator to decide the place after the mediator has been chosen or appointed. If parties have no agreement, the center can decide the language of the mediation, or invite the mediator to decide the language after the mediator has been chosen or appointed.
Parties can jointly nominate one mediator and let the center confirm. If parties can not nominate the same mediator, the center can appoint one mediator after consultation with parties or provide parties with a list of all the suggested mediators. All parties can jointly nominate one mediator from such list to be confirmed by the center. If all parties cannot nominate one mediator from such list, the center shall nominate one mediator. Before being appointed or confirmed, the mediator candidate shall sign a statement that he or she accepts the appointment, has time to deal with the case and is neutral and independent. Upon agreement of all parties and the mediator, the center can charge a fixed fee based on the whole procedure, otherwise the fees of the mediator will be decided upon hourly rate.
The mediator and parties shall timely consult with each other concerning the method adopted in the mediation. In deciding and the process of the mediation, the mediator shall respect parties’ intentions and gives parties fair and just treatment.
The Mediation Rules stipulates that unless agreed in writing by all parties otherwise or prohibited by applicable laws, despite procedures under this Mediation Rules, parties can also start or continue other judicial, arbitral or similar procedures. Unless agreed in writing by all parties otherwise, the mediator should not and could not serve as judge, arbitrator, expert witness or representative or counsel of one party in any judicial, arbitral or similar procedures that had connection with the subject matter of dispute under this Mediation Rules. Unless required by applicable laws or agreed in writing by all parties and the mediator otherwise, the mediator shall not testify in any judicial, arbitral or similar procedures in connection with any respect of the procedure under this mediation Rules.
The new ICC mediation rules show the concepts of mediation of western countries. Different from what is done in China that arbitration and mediation shall be coordinated, in ICC mediations, the arbitrator cannot serve as the mediator of the same dispute, unless agreed in writing by all parties otherwise that they agree such arbitrator to serve as the mediator. The oral consent of parties does not satisfy the condition set out in the Rules.