By Elisa Warbington –
On 17th March 2014, the International Chamber of Commerce (ICC) has presented in Singapore its new Mediation Rules (the Rules), which entered into force on 1st January 2014 and replaced the ICC ADR Rules.
With these new and improved Rules, the ICC and its International Center for ADR step up in the worldwide promotion of this institutionalized mediation process between parties, and intend on offering a framework better adapted to the needs of businesses, in light of the mediation practice developed to date by the ICC.
In the toolbox of available dispute settlement techniques, mediation has proven to be quite an effective dispute resolution mode when the right environment is in place. As reported by the ICC International Center for ADR (the Centre), the body administering mediations, once parties reach the table of discussions, about 80 % of the cases are settled. As a confidential process chosen by parties to solve an issue, through the assistance of a neutral third party, it is considered to be time and cost-efficient, and a more flexible and softer approach to conflict solving than court litigation or arbitration, allowing parties to maintain a relationship regardless of the outcome of the process.
Referring a matter to mediation through an institution can lend credence and expertise to the mediation process, and provide reassurance of fairness to the parties, both as to the framework itself and as to the mediator’s qualifications. Given its leading role in the arbitration sector, the ICC is in a privileged position to promote its institution and Rules of Mediation.
The ICC chose to start to present its new Rules in Singapore as the first city in Asia and this choice follows the growing trend in favor of mediation in this state.
Mediation has always been present in Singapore, as in most Asian cultures, but has significantly progressed since the 1990’s, with the development of court-based mediation in the Subordinate Courts and the creation of the Singapore Mediation Centre for civil and commercial disputes. This trend is not likely to stop with announcements in 2013, by Singapore’s Ministry of Law, of initiatives to develop Singapore into a centre for international commercial mediation with, in particular, the creation of two new mediation entities and the enactment of a Mediation Act to strengthen the framework for mediation in Singapore.
In an effort to tailor the Rules to the parties’ needs and to the practice, the ICC has therefore carried out the following main changes to the ICC ADR Rules which were in place since 2001:
- Changing name from “ADR” to “Mediation”, the Rules title now reflects the fact that the large majority of requests filed by parties are for mediation. Mediation becomes the default resolution mode, whilst parties can still voluntarily opt for other ADR practices (article 1(3)).
- The ICC International Center for ADR (the Centre), the body administering mediation procedures, is entrusted with more powers to provide assistance to the parties at the initial stage of the process as well as in its course, in order to optimize chances of successfully reaching a settlement. The Centre can therefore help the parties in responding to an initial Request, choosing the mediation language and places, appointing a mediator, etc… (articles 3, 4 and 5), all important steps for a successful mediation.
- In a similar effort to assist parties, the Rules have been adjoined with a practical guide, the ICC Mediation Guidance Notes, to help users better understand what is mediation, why parties should use it and how the procedure should enfold. The detailed and practical information in this booklet divided in 41 sections should provide quite helpful guidance to users. Four types of mediation model clauses, depending on how much weight parties want to give to mediation in their dispute resolution process, are also included at the back of the Rules.
- Mediation is expressly envisaged as one option the parties may wish to pursue, in combination or parallel with other proceedings, in particular arbitration (article 10). The parties may wish to include a time for mediation into the timetable for the arbitration proceedings, or more generally provide for mediation prior to, during, or after, any types of proceedings (Mediation Guidance Notes, para.28). In the event of parallel mediation and arbitration, the two procedures shall be handled by two different bodies (the ICC International Centre for Arbitration and the ICC International Centre for ADR) in order to keep the processes confidential.
- And precisely in order to safeguard confidentiality, a critical aspect of any mediation, the Rules provide that the content of the mediation proceedings, but not their existence, shall remain private and confidential, as well as any settlement agreement between the parties. Parties shall not produce as evidence in judicial, arbitral or other proceedings, any documents produced, statements, admissions, views expressed by the parties and the mediator during or in relation to the mediation, the dispute or the possibility of reaching a settlement (article 9).
One should expect that the pragmatic approach of these new rules should lead to a further increase in the number of mediations handled by the ICC. No doubt mediation users and practitioners will have opportunities to provide feedback on the implementation of these Rules in the near future, in particular in Singapore’s thriving movement in favor of mediation.