Mediation/ Conciliation is an informal procedure in which a neutral person, the Mediator/Conciliator, assists the parties in reaching a settlement of the dispute.
2.1A Mediation Agreement is an agreement to seek resolution of disputes or issues through mediation or conciliation. The Mediation Agreement could be under a pre-existing agreement providing for resolution of existing or future disputes through mediation or conciliation, or by means of consensus or agreement between the parties for mediation / conciliation of disputes that have arisen between or amongst them.
2.2Where both or all parties agree to mediation or conciliation being conducted by FCDR, they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement.
3.1Parties to a dispute may start Mediation/Conciliation by filing a written request for Mediation/Conciliation to the FCDR together with the registration fee in accordance with the Schedule of Fees of the FCDR. In the absence of a Mediation Agreement, one party may request FCDR to invite the other party or parties to join in a submission to Mediation/Conciliation.
3.2Upon receipt of such a request and the registration fee in accordance with the Schedule of Fees of the FCDR, FCDR will contact the other party (ies) involved in the dispute and seek their consent to the submission of the disputes to Mediation/Conciliation. When the other party(ies) agree to the submission of the disputes to Mediation/Conciliation, the Mediation/Conciliation of the disputes between the parties will be undertaken by the FCDR in accordance with these Rules.
3.3The registration fee shall not be refundable.
3.4No action will be taken by the FCDR on a Request for Mediation/Conciliation until the registration fee has been paid.
The request for Mediation/Conciliation will include two copies of:
4.1A short statement on the nature of the dispute; and
4.2The names, addresses, (email addresses, where available) and telephone numbers of all parties to the dispute, including similar details of any representative in the Mediation/Conciliation.
Upon receipt of a request for Mediation/Conciliation, the FCDR will appoint a qualified Mediator/Conciliator or a panel of two mediators/conciliators from its panel of mediators as Mediator/Conciliator for the dispute.
6.1The Mediator/Conciliator appointed by FCDR for the dispute:
iWill be neutral, impartial and independent;
iiWill not have any financial or personal interest in the result of the Mediation/Conciliation
iiiWill disclose as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the Mediator/Conciliator and could reasonably be seen as raising a question about the Mediator/Conciliator’s impartiality. After disclosure, if all parties agree, the Mediator/Conciliator may proceed with the Mediation/Conciliation.
6.2If a Mediator/Conciliator learns of any fact after accepting a Mediation/Conciliation that raises a question with respect to that Mediator/Conciliator’s service creating a potential or actual conflict of interest, the Mediator/Conciliator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the Mediator/Conciliator may proceed with the Mediation/Conciliation.
7.1The Mediator/Conciliator shall attempt to facilitate voluntary resolution of the dispute(s) by the parties, and communicate the view of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and generating options in an attempt to solve the dispute(s), emphasizing that it is the responsibility of the parties to take the decisions that affect them.
7.2The Mediator/Conciliator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. The Mediator/Conciliator, if authorized by all the parties, may make oral and written recommendations for settlement. Whenever necessary, the Mediator/Conciliator may also obtain expert advice concerning technical aspects of the dispute, provided that the parties agree and assume the expenses of obtaining such advice. Arrangements for obtaining such advice shall be made by the Mediator/Conciliator or the parties, as the Mediator/Conciliator shall determine.
7.3The Mediator/Conciliator shall be free to meet and to communicate separately with a party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other party without the express authorization of the party giving the information.
7.4The Mediator/Conciliator is authorized to end the Mediation/Conciliation whenever, in the judgment of the Mediator/Conciliator, further efforts at Mediation/Conciliation would not contribute to a resolution of the dispute between the parties.
7.5Where the Mediator/Conciliator believes that any issues in dispute between the parties are not susceptible to resolution through Mediation/Conciliation, the Mediator/Conciliator may propose, for the consideration of the parties, procedures or means for resolving those issues which the Mediator/Conciliator considers are most likely, having regard to the circumstances of the dispute and any business relationship between the parties, to lead to the most efficient, least costly and most productive settlement of those issues.
7.6Unless required by a court of law or authorized in writing by the parties, the Mediator/Conciliator shall not act in any capacity whatsoever, otherwise than as a Mediator/Conciliator, in any pending or future proceedings, whether judicial, arbitral or otherwise, relating to the subject matter of the dispute.
8.1Upon appointment, the Mediator/Conciliator shall fix, in consultation with the parties, a time schedule, with the dates and the time of each mediation/conciliation session, where all parties have to be present.
8.2The Mediator/Conciliator may conduct joint or separate meetings with the parties.
8.3The Mediation/Conciliation sessions are private. The parties and their representatives may attend Mediation/Conciliation sessions. Other persons may attend only with the permission of the parties and with the consent of the Mediator/Conciliator.
8.4Each party shall furnish to the Mediator/Conciliator such other Information as may be required by the Mediator/Conciliator in connection with the issues to be resolved.
8.5The Mediator/Conciliator shall fix the date and the time of each Mediation/Conciliation session. The Mediation/Conciliation shall be held at the office of the FCDR, or at any other convenient location agreeable to the Mediator/Conciliator and the parties, as the Mediator/Conciliator shall determine.
8.6Each party shall cooperate in good faith with the Mediator/Conciliator to advance the Mediation/Conciliation as expeditiously as possible.
8.7Any party may at any time submit to the Mediator/Conciliator, for consideration by the Mediator/Conciliator only, written information or materials which it considers to be confidential. The Mediator/Conciliator shall not, without the written authorization of that party, disclose such information or materials to the other party.
8.8The parties agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the Mediation/Conciliation shall not be relied upon to maintain any action for defamation, libel, slander or any related complaint, and this Rule may be relied upon as a bar to any such action.
9.1Each person participating in the Mediation/Conciliation, including, in particular, the Mediator/Conciliator, the parties and their representatives and advisors, any independent experts and any other persons present during the meetings of the parties with the Mediator/Conciliator, shall respect the confidentiality of the Mediation/Conciliation shall sign an appropriate confidentiality undertakings prior to taking part in the Mediation/Conciliation.
9.2The parties shall maintain the confidentiality of the Mediation/Conciliation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding:
aviews expressed or suggestions made by another party with respect to a possible settlement of the dispute;
badmissions made by another party in the course of the Mediation / Conciliation proceedings;
cproposals made or views expressed by the Mediator/Conciliator; or
dthe fact that another party had or had not indicated willingness to accept a proposal for settlement made by the Mediator/Conciliator.
9.3Confidential information disclosed to a Mediator/Conciliator by the parties or by witnesses in the course of the Mediation/Conciliation shall not be divulged by the Mediator/Conciliator. All records, reports, or other documents received by a Mediator/Conciliator while serving in that capacity shall be confidential. The Mediator/Conciliator shall not be compelled to divulge such records or to testify in regard to the Mediation/Conciliation in any adversarial proceeding or judicial forum.
9.4No recording of any kind, including any stenographic recording of the discussions, shall be made of any meetings of the parties with the Mediator/Conciliator.
9.5Each person involved in the Mediation/Conciliation shall, on the termination of the Mediation/Conciliation, return, to the party providing it, any brief, document or other materials supplied by a party, without retaining any copy thereof.
If any communication between the Mediator/Conciliator and a party is necessary, it shall be in writing and copies of the same shall be given to the other parties or their constituted attorney or the counsel.
If a Mediator/Conciliator is or becomes unwilling or unable to serve, the FCDR will appoint another Mediator/Conciliator unless the parties agree differently.
Any party may be represented or assisted in their meetings with the Mediator/Conciliator by persons of the party’s choice. The names and addresses of such persons shall be communicated in writing to all parties and to the FCDR.
Where an agreement is reached between the parties in regard to all or some of the issues forming the subject of the Mediation/Conciliation, the same shall be reduced to writing and signed by the parties or their constituted attorney and the Mediator/Conciliator. If any counsel has represented the parties, the Mediator/Conciliator may obtain his signature also on the settlement agreement.
14.1The fee of the Mediator/Conciliator shall be in terms of the Schedule of fees of the FCDR. The fee of the Mediator/Conciliator, and any expenses of the mediation/conciliation, shall be borne equally by the parties.
14.2Before the commencement of the mediation/conciliation, the parties will be required to deposit in equal part the fees for the first two Mediation/ Conciliation session, including any expenses or costs expected to be incurred for the session. Fees for subsequent sessions shall be remitted in equal parts by the parties before the commencement of each subsequent session.
14.3Notwithstanding Rule 14.2, the FCDR may, at the time of the appointment of the Mediator/Conciliator, require each party to deposit an equal amount as an advance for the costs of the Mediation/Conciliation, including, in particular, the estimated fees of the Mediator/Conciliator and the other expenses of the Mediation/Conciliation. The amount of the deposit shall be determined by FCDR.
14.4If a party fails, within 15 days after a second reminder in writing from the FCDR, to pay the fees for any session, it shall be deemed to have withdrawn its request for Mediation/Conciliation.
14.5After the termination of the Mediation/Conciliation, the FCDR will render an accounting to the parties of any deposits made and return any unexpended balance to the parties or require the payment of any amount owing from the parties.
15.1The Mediation/Conciliation shall be terminated:
aby the execution of a settlement agreement by the parties;
bby a written declaration of the Mediator/Conciliator to the effect that further efforts at Mediation/Conciliation are unlikely to lead to a resolution of the dispute;
cby a written declaration of a party or parties to the effect that the Mediation/Conciliation proceedings are terminated; or
dfailure by a party/ constituted attorney to attend two consecutive sessions.
15.2Upon the termination of the Mediation/Conciliation, the Mediator/Conciliator shall promptly send to the FCDR a notice in writing that the Mediation/Conciliation is terminated and shall indicate the date on which it terminated, whether or not the Mediation/Conciliation resulted in a settlement of the dispute and, if so, whether the settlement was full or partial.
15.3The Mediator/Conciliator shall send to the parties a copy of the notice so addressed to the FCDR.
15.4The FCDR shall keep the said notice of the Mediator/Conciliator confidential and shall not, without the written authorization of the parties, disclose either the existence or the result of the Mediation/Conciliation to any person.
15.5The FCDR may, however, include information concerning the Mediation/Conciliation in any aggregate statistical data that it publishes concerning its activities, provided that such information does not reveal the identity of the parties or enable the particular circumstances of the dispute to be identified.
16.1Neither the FCDR nor any Mediator/Conciliator shall be liable to any party for any act or omission in connection with any Mediation/Conciliation conducted under these Rules.
16.2Neither the FCDR nor any Mediator/Conciliator will be a necessary party in judicial proceedings relating to the subject matter or issues discussed in the Mediation/Conciliation.
17.1The Mediator/Conciliator shall interpret and apply these Rules insofar as they relate to the Mediator/Conciliator’s duties and responsibilities.
17.2All other rules shall be interpreted and applied by the FCDR.