Table of Contents
|3.||Panel of Accredited Mediators and the Appointment|
|4.||Commencement of the Mediation|
|5.||Time and Place of Mediation|
|6.||Authority of the Mediator|
|7.||Representation of the Parties|
|9.||Termination of the Mediation|
|10.||Impartiality and Independence of the Mediator|
|11.||Exclusion of Liability|
|13.||Costs of the Mediation|
|15.||Recording the outcome of the Mediation|
|16.||Rules of conduct and complaints|
|17.||Matters not addressed|
Article 1. Introduction:
1.1 The IBA Dispute Resolution Forum is spearheaded by the ADR Team at the IBA comprising of the following individuals; Navin Merchant (Convenor), Nausheen Ahmad, Altaf Qureshi, Sohaib Saleem (Focal Person).
1.2 Mediation is a process conducted by a neutral person who assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle the terms of resolution. More and more disputes are now being resolved through mediation globally. It is particularly effective in Asia as the process of mediation is inspired by Asian values of community, family, harmony, and collectivism.
1.3 Any contemplated or existing litigation or arbitration in relation to the dispute may be started or continued despite the mediation, unless the parties agree or the court orders otherwise. If settlement terms cannot be agreed through mediation or if the mediation process fails at any stage, the parties can revert to the pending litigation or arbitration.
Article 2 - Definitions
In these Rules, the following terms shall have the following meanings:
2.1 Appointing Authority means IBA-DRF
2.2 IBA-DRF: the Foundation "IBA Dispute Resolution Forum", having its registered office in Karachi.
2.3 Issue: the issue described in the Mediation Agreement.
2.4 Mediation: a procedure in which the Parties make an effort to resolve their Issue under the supervision of a Mediator in accordance with the Rules.
2.5 Mediation Agreement: the written agreement in which the Parties agree to endeavour to resolve the Issue through Mediation, and instruct the Mediator to act as Mediator in respect of the Issue and the Mediator accepts this instruction.
2.6 Mediator: the person who conducts the Mediation.
2.7 Party/Parties: the parties who wish to resolve the Issue through Mediation.
2.8 Proceedings: the process beginning with its commencement and ending with its termination pursuant to the Rules
2.9 Rules: these Rules which may apply also to other forms of ADR mechanisms which may be brought before the Forum. After consultation with the parties, the mediator and, before his/her appointment, the Forum may make adjustments to the present Rules as they may be required for the specific nature of such other ADR mechanisms.
Article 3. Panel of Accredited Mediators and the Appointment:
3.1. In case there is no prior mediation agreement between the parties, one of the Parties shall approach IBA-DRF with a written request containing the following:
- the names, addresses and telephone, e-mail or other communication references of the parties to the dispute and of the representative of the party filing the Request for Mediation;
- a copy of the Mediation Agreement if any;
- a brief statement of the nature of the dispute; and
- administrative fee as suggested by the Forum
3.2. Upon receipt of the request, the Appointing Authority will send to the Parties:
- a list with the names of the Mediators who, on the basis of the description of the Issue and/or the relevant criteria stated by the Parties, are considered eligible;
- a copy of the Rules and a copy of the Code of Conduct of IBA-DRF;
- an invoice for administrative charges.
3.3. The Parties will together select a Mediator from the aforementioned list. The Parties must inform the Appointing Authority in writing which Mediator they have selected. Upon receipt of this letter, the Appointing Authority will inform the Mediator concerned of the request and of his/her having been selected, so that the Mediator may then contact the Parties.
3.4. If the Parties fail to jointly agree on the selection of a Mediator, they (or either one of them) may request the Appointing Authority to make a written proposal for a Mediator who may be appointed by the Parties.
3.5. On acceptance of the appointment, the Mediator shall prepare a draft Mediation Agreement. The Parties and the Mediator will then sign the Mediation Agreement.
3.6. In the event the Parties are unable to agree on the place (seat of) the Mediation and/or the language(s) of the Arbitration, the Mediator shall determine these. The procedural law of the seat of the mediation shall apply to the arbitration.
3.7 In cases where a prior mediation agreement already exists, the parties shall jointly approach IBA-DRF and submit a written request for mediation containing names, (e-mail) addresses, telephone and fax numbers of the Parties and their representatives, if any, as well as a general description of the Issue. Following this step, the contents of clauses 2.2 till 2.6 shall apply.
3.8 Where the Appointing Authority receives a mediation consequent to an order passed by a court of competent jurisdiction, the Appointing Authority shall, if the details, names, addresses, telephone numbers, facsimile, telex number and email addresses are not mentioned, write to the concerned officer of the Court who forwarded the order, requesting him for the abovementioned details. However, if such information is mentioned, Appointing Authority shall without delay and not later than 4 working days of the receipt of the order/information, inform the parties in writing of such order.
3.9 The Appointing Authority shall also communicate to the parties, the date and venue where the parties shall appear before the Appointing Authority.
3.10 Following this step the contents of clauses 3.2 till 3.6 shall apply.
3.11 The parties are not obliged to appoint their mediators or neutrals from amongst the IBA DRF Panel of Mediators. However, if parties request the Forum to appoint a mediator, the Forum can only do so from amongst its Panel.
3.12 There shall be a sole mediator unless the parties wish to designate more than one mediator.
3.13 The parties may agree in writing at any time to replace the mediator.
3.14 If a mediator resigns, is incapacitated or otherwise becomes unable to perform the mediator's functions, a new mediator shall be appointed
Article 4. Commencement of Mediation
4.1 A party/parties having prior contract/agreement having a clause for "dispute resolution" and wishes to commence a mediation or any other method of dispute resolution, shall follow the procedure laid out in clauses3.1 to 3.6.
4.2 Where there is no prior contract/agreement between the parties to refer dispute to mediation, any party that wishes to propose mediation, may do so by following the procedure laid out in clauses 3.7 till 3.10.
Article 5. Time and Place
5.1. Following initial meeting with the parties and the mediator, the Forum shall fix the date and time of the mediation proceedings.
5.2 Mediation will normally take place at the premises of the Forum.
5.3 Off-site mediations could be arranged by the Forum provided that the party, or parties making such request will pay, all the costs related to the venue and other ancillary arrangements in advance to the Forum.
5.4 The Mediation shall take place on the basis of voluntariness of the Parties. Each Party, as well as the Mediator, may put an end to the Mediation at any time.
Article 6. Authority of the Mediator
6.1 The mediator shall have full authority to conduct the mediation proceedings as he or she deems fit, to request such documents as he or she believes are necessary in assisting the parties in resolving their dispute, in seeking the advice of experts, at the parties' expense, and in terminating the mediation if he or she believes that any further efforts would be without a reasonable likelihood of success.
6.2 The Mediator will attempt to help the parties to reach a mutually agreed resolution of their dispute but has no authority to impose a settlement on the parties.
6.3 The Mediator is authorized to conduct joint and separate meetings with the parties and preferably start and end on the same day.
6.4 The mediator may adjourn the mediation in order to allow the parties to consider specific proposals, get further information or for any other reason that the mediator deems helpful in furthering the mediation process. The mediation will then reconvene with the agreement of the parties.
6.5 The entire process shall be confidential in all respects except where exceptions apply.
Article 7. Representation of the Parties
7.1 A party may be represented by a lawyer or agent provided the name and address of any and all such representatives is communicated, in writing, to the Forum and the Mediator at least three days prior to the first meeting such representative will attend unless otherwise agreed.
7.2 At least one person from each party must have the authority to settle the dispute.
Article 8. Confidentiality
8.1 The Mediator shall keep confidential any information disclosed in the course of the mediation including all written material provided to him/her as Mediator.
8.2 The parties shall agree that mediation sessions are settlement negotiations and disclosures of any information are inadmissible in any future or pending litigation or arbitration to the extent permitted by law. The parties agree not to require the Mediator to testify or produce records or notes in any proceedings.
8.3 No stenographic or taped record shall be made of the mediation proceedings.
8.4 The parties agree that they shall not rely on or introduce as evidence in subsequent arbitral or judicial proceedings: any views expressed, or suggestions made, by the other party in respect of the possible settlement of the dispute;
- any admissions made by the other party in the course of the mediation;
- the fact that the other party had indicated a willingness to accept a proposal or recommendation for settlement made by the Mediator; or, ,
- Proposals made or views expressed by the Mediator.
8.5 If the Mediator wishes, he/she may cause himself to be assisted clerically at the Mediation by a person designated by him for that purpose. In such event, the Mediator shall ensure that such person signs a declaration of confidentially.
Article 9. Termination of the Mediation
9.1 Any settlement reached in the mediation will not be legally binding until it has been reduced to writing and signed by, or on behalf of, the parties having the authority to sign.
9.2 The parties may file an application along with the settlement agreement duly signed by the parties and other relevant documents in the court having jurisdiction which shall be registered as a "Judicial Miscellaneous" matter. The court after hearing the parties may pass judgment and decree as provided under Section 89-B of the Code of Civil Procedure (Sindh Amendment) Act 2018.
Article 10. Impartiality and Independence of the Mediator
10.1 Every prospective mediator shall provide the Forum, within 7 days after being notified with his or her nomination, with a signed statement of impartiality and independence in which he or she shall disclose any facts or circumstances which might affect or call into question his or her impartiality, independence or might be perceived to create a conflict of interest. The Forum shall promptly inform the parties of such disclosure. If within 7 days after being notified with the disclosure, a party objects to the appointment of the mediator, the Forum shall replace the mediator.
10.2 If, during the course of the mediation, a mediator becomes aware of any facts or circumstances that might call into question the mediator's independence or impartiality in the eyes of the parties, the mediator shall disclose those facts or circumstances to the parties in writing without delay. A party may object to the continued participation of the mediator. In such a case, the Forum shall replace the mediator.
Article 11. Exclusion of Liability
Neither the mediators, the Forum, its employees, nor any person appointed in the mediation shall be liable to any person based on any act or omission in connection with the Mediation.
Any liability of the Mediator in case of damage caused by any act or omission of the Mediator in the Mediation shall be limited to at most the amount of any proceeds paid out by his/her professional liability insurer. Except for intentional act or gross negligence on the part of the Mediator, the Parties undertake to hold the Mediator harmless and indemnify him/her in respect of all claims that a third party may institute as against the Mediator at any time and which are related to acts or omissions of the Mediator during the Mediation.
Article 12. Other proceedings
12.1. Any legal or similar proceedings already pending on commencement of the Mediation regarding the Issue or parts thereof – with the exception of steps to safeguard rights – shall be stayed by the Parties for the duration of the Mediation.
12.2. The Parties undertake for the duration of the Mediation not to institute any proceedings as referred to in Article 13.1 against each other, with the exception of steps to safeguard rights.
12.3. If a Party takes steps to safeguard rights, or institutes proceedings other than those referred to in Article 10.1, that Party shall be obliged to notify this to the Mediator and to the other Party or Parties within 24 hours after having taken such steps or after having instituted such proceedings.
Article 13. Costs of the Mediation
Article 14. Administrative Fees
Article 15. Recording the outcome of the Mediation
15.1. The Mediator shall see to it that the agreements made by the Parties are properly recorded in an agreement. The Parties shall be responsible for the contents of the agreement. The Parties shall have the right to call in the advice of an external expert.
15.2. The Mediator shall not be liable for the contents of the agreement concluded by the Parties nor for any damage that may arise from the same.
15.3. The Parties shall jointly decide and record in writing to what extent the contents of the agreement concluded shall remain confidential. The contents of the concluded agreement may, in any case, be submitted to a court if necessary in order to enforce the agreement.
Article 16. Rules of conduct and complaints
Unless the Mediation Agreement indicates a different set of Rules, the Mediator shall be bound by the Code of Conduct of IBA-DRF and shall be subject to the IBA-DRF complaints scheme and disciplinary rules. A Party may lodge a complaint with IBA-DRF within twelve months from the termination of the Mediation in accordance with the IBA- DRF complaints scheme at that time in force.
Article 17. Matters not addressed
The Mediator shall decide all matters not provided for by these Rules. In doing so, the Mediator shall act in accordance with the spirit of these Rules.
Article 18. Mediation and ADR Services:
18.1 For the purposes of these Rules, mediation, conciliation and other similar alternative dispute resolution (ADR) mechanisms are considered as the same process as the "Mediation" and these Rules shall apply no matter which term is used by the parties.
- These Rules apply also to other forms of ADR mechanisms which may be brought before the Forum. After consultation with the parties, the mediator and, before his/her appointment, the Forum may make adjustments to the present Rules as they may be required for the specific nature of such other ADR mechanisms.
- Administering domestic and international mediation and other ADR mechanisms under its auspices;