Consensual nature of mediation – agreement to mediate
The Mediation Rules provide that the parties may conclude an agreement to mediate as a pre-existing agreement or refer a dispute to mediation when the dispute arises (Article 2.2).
At the same time, in the spirit of the consensual nature of mediation, in both cases, the mediation will not proceed if the Responding Party does not provide a Reply to the Application of the Requesting Party. In such a case, the Responding Party shall be deemed to not consent to the dispute being referred to mediation and the mediation shall not proceed (Article 3.4).
Moreover, the Mediation Rules allow any party to withdraw from the mediation, which results in the mediation being concluded (Article 8.1(d)).
Appointment and duties of mediators
The Mediation Rules allow the parties to nominate mediators (Article 6.1) and to agree on the procedures and methods of nomination (Article 6.4) and relevant time limits (Article 6.2). However, all mediators are ultimately appointed by the Arbitration Court of the DIAC (Article 6.1), with due consideration to the nature of the underlying transaction, the nature of the dispute, the nationality, location, qualifications and experience of the mediator and language of the parties and any other relevant circumstances (Article 6.4).
The Mediation Rules impose on the mediator the duty to remain impartial and independent from the parties, to disclose any real or potential conflict of interest (Article 6.8).
Conduct of mediation
The Mediation Rules give the mediator broad power to determine the procedure for mediation, which is limited by the requirement to give each party a reasonable opportunity to present their respective positions and to give due regard to the relevant circumstances (Articles 7.1, 7.2, 7.4, and 7.7). These procedures may include meeting or communicating with the parties jointly or separately (Article 7.6).
Settlement and Settlement Agreement
The ultimate goal of the mediation is the parties settling all or part of the matters in dispute on mutually agreed terms (Article 7.7). The result of the settlement may be embodied in a Settlement Agreement between the parties (Article 8.1(f)). The mediator may, to the extent that it feels competent to do so, facilitate the preparation of a Settlement Agreement (Article 7.7).
Confidentiality
The Mediation Rules include provisions on confidentiality, which are crucial to any attempt of the parties to settle the dispute amicably. These provisions include (Article 9):
- The duty of the mediator and the parties to keep confidential all information related to the mediation, together with all materials created for the purpose of the mediation, and documents produced by, or in possession of any party to the mediation;
- The duty of the mediator and the parties to keep confidential the existence and the contents of the Settlement Agreement, except when its disclosure is required under a legal obligation or to enforce or challenge the Settlement Agreement; and
- A provision that no statement made during the mediation process may be used in any judicial or arbitration proceedings as evidence of admissions against the interests of the party that made them.
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*This article was authored by Luka Kristovic-Blazevic (Partner and Head of International Arbitration, Middle East) and Taisiya Vorotilova (Senior Associate, Dubai).
