The new Mediation Rules (the Rules) of the International Chamber of Commerce (ICC) entered into force on 1 January 2014. Result of the work of the ICC Commission on Arbitration and ADR, composed of specialists and practitioners of different origins and cultures (90 States), these new Rules replace the ICC ADR Rules, which were in force since 2001.
The principal innovations of these Rules are the following:
- As its title indicates, the object of the Rules is mediation, as opposed to ADR as a whole: mediation is applicable unless the parties agree otherwise (Article 1(3)). Prior to the Rules, mediation was a default mechanism, applicable when the parties did not agree on the settlement procedure to use (Article 5(2) of the 2001 ICC ADR Rules). The reversal of this principal is explained by this procedure’s success in practice: since 2001, 90% of the disputes under the ICC ADR Rules were submitted to mediation. Among these, 75% resulted in a settlement.
- The mediation procedure is administered by the ICC International Centre for ADR (the Centre) (Articles 1(1) and (5)), which plays a particularly important role in the selection and appointment of a mediator when the parties fail to jointly nominate one. The Centre takes into consideration the mediator’s attributes (nationality, language skills, training, qualifications, experience, availability, ability to conduct the mediation in accordance with the Rules), as well as those expected by the parties (the Centre “shall make all reasonable efforts to appoint a Mediator having the attributes, if any, which have been agreed upon by all of the parties” (Articles 5(4) and 5(5)). It should also be noted that the Centre reserves its right not to administer the procedure if the parties have modified the Rules to an extent not in conformity with their spirit.
- Article 7 – General Provisions of the ADR Rules becomes Articles 9 – Confidentiality and 10 – General Provisions. The mediation procedure remains, in principle, confidential unless the parties agree to the contrary. Subject to the applicable law, the parties cannot rely, in any proceedings (judicial, arbitral or other) on (i) any views expressed by either them or the mediator during the negotiations, (ii) any documents exchanged, or (iii) the fact that any party indicated within the proceedings that it was ready to accept a proposal for a settlement. The purpose of this rule is to create an atmosphere favorable to the outcome of the negotiations by assuring the parties that the views and information exchanged shall not be used to their detriment in judicial or arbitral proceedings or, more generally, in their activity. It should be noted that the Rules still do not sanction confidentiality breaches. In practice, the issue is left to the mediator, the Centre or the judge or arbitrator to decide.
- Article 10 – General provisions expressly provides that parties may commence or continue any judicial, arbitral or similar proceedings in respect of the dispute, notwithstanding the proceedings under the Rules. Thus, subject to the parties’ agreement and if the applicable so permits, parties may refer their dispute to mediation regardless of their procedural state: prior to any procedure, during any procedure, after an award has been rendered but prior to the outcome of enforcement proceedings or a challenge to the award before a national court, or after a court judgment has been issued and pending an appeal against that judgment (Mediation Guidance Notes, para. 28).
- Mediation Guidance Notes accompany the Rules to offer helpful guidance and information on administrative and procedural issues relating to mediation. Commented model clauses are also proposed as an appendice to the Rules to guide the parties in their choice.
The Mediation Rules have thus taken advantage of 13 years of ADR practice to offer a flexible and efficient procedure as well as guidance of the parties in their choice. It stems from the ICC’s will to develop and promote mediation, procedure which presents advantages in terms of time and costs for the parties compared to arbitration or judicial proceedings. However, the Rules should not be detrimental to arbitration: the ICC clearly promotes the coexistence and promotion of mediation in parallel with other existing procedures.