Author: Simon Ekins
On 1 January 2014 the International Chamber of Commerce (ICC) published new Rules of Mediation (Rules) accompanied by the supplementary Mediation Guidance Notes. The Rules are a revision of the ICC’s Amicable Dispute Resolution (ADR) Rules which had been in force since 1 July 2001. The publication of the new Rules is part of the ICC’s overall regeneration of its rules on dispute resolution proceedings and follows the release of the new ICC Rules of Arbitration which came into force in 2012.
The Rules were drafted by a task force of mediation and dispute resolution specialists from 29 countries and reflect the ICC’s experience of administering international commercial mediations for the past 13 years. They are intended to provide ‘clarity of the procedural framework and flexibility’ to users and streamline the ADR process at the ICC.
Accordingly, changes to the substantive content of the previous ADR Rules are not extensive and key provisions remain largely unchanged. The more significant changes observed in the new Rules are as follows:
Mediation as the default settlement procedure
Article 1.3 of the new Rules now prescribes that mediation will be the default settlement procedure, unless parties agree otherwise. This contrasts with the previous ADR Rules under which other forms of dispute resolution such as conciliation and neutral evaluation would have been given equal consideration in the absence of agreement by parties. Such preference for mediation is a result of the current trend in international dispute resolution: a predominant majority of cases filed at the ICC are referred to mediation (approximately 90%), with over 75% of these concluding with a settlement. The promotion of the Rules can be seen as the ICC’s recognition of the rising significance of mediation as the preferred settlement technique in international dispute resolution.
The role of the ICC International Centre for ADR
Under the new Rules, the ICC International Centre for ADR (Centre) will have a greater role to play in providing administrative support throughout the dispute resolution process. The Centre is now responsible for many duties which would have been traditionally within the scope of the role of a mediator, such as determining the venue, timing and language of mediation in the absence of agreement by parties. The reallocation of duties reduces the administrative burden on mediators and allows them to focus on the substantive issues of mediation, making the mediation process at the ICC much more streamlined.
Use with arbitration
The Rules also aim to accommodate the increasing tendency of parties in dispute to pursue mediation alongside arbitration. Notably, Article 10.2 of the Rules provides for parties to commence or continue the main judicial or arbitral proceedings irrespective of whether mediation is being pursued. This strategy is further encouraged in the Guidance Notes, which suggest that parties should incorporate a ‘mediation window’ into the timetable for arbitration proceedings at case management conferences. The envisaged effect is that the new Rules will help the parties to devise a dispute resolution process which best suits their commercial reality and that the parties in dispute will view mediation as a flexible method of dispute resolution that can be tailored to the individual needs of the case.
The new Rules of Mediation can be seen as the ICC’s response to the increasing popularity of mediation in resolving international disputes and its desire to remain the leading provider of the service. With these new Rules, the parties will enjoy being able to conduct their entire dispute resolution process at a single institution faster than previously possible.
Simon Ekins, partner, Fladgate LLP (firstname.lastname@example.org)