PrvateCourt Mediation Rules 2020


Chapter 1 General Provisions

 

Article 1 Purpose

These rules are formulated to resolve civil and commercial disputes between the parties by mediation in a fair, efficient, harmonious and cost-effective manner.

 

Article 2 Scope of Mediation Cases

Any civil and commercial disputes between natural persons, legal entity, and unincorporated organizations as equal parties may be submitted to PrivateCourt for mediation.

 

Article 3 Scope of Application

Where the parties have agreed to refer their dispute to the PrivateCourt for mediation, they shall be deemed to have agreed to mediation in accordance with these Rules.

Where the parties agree to refer their dispute to mediation under these Rules, they shall be deemed to have agreed to have the mediation procedure administered by the PrivateCourt.

Where the parties have agreed otherwise and with the approval of the PrivateCourt, the parties’ agreement shall prevail.

 

Article 4 Voluntary Mediation

Mediation shall follow the principle of voluntary participation by the parties.

 

Article 5 Fair Mediation

A mediator shall conduct mediation fairly. A mediator shall not represent either party and shall remain independent and impartial, and treat the parties equally.

A mediator shall cooperate closely and diligently carry out his/her duties as a mediator, The mediator shall not be negligent or inefficient.

A Mediator shall actively facilitate the communication and negotiation between the parties, and assist them in reaching a settlement agreement.

 

Chapter 2 Mediation Proceedings

 

Article 6 Commencement of Mediation

The parties may unilaterally or jointly apply to the PrivateCourt for mediation, with or without a mediation agreement previously concluded between the parties.

The mediation proceedings shall commence on the day on which the PrivateCourt receives a Request for Mediation.

 

Article 7 Request for Mediation

When applying for mediation under these Rules, any party or parties shall:

(1) submit a Request for Mediation in writing signed and/or sealed by the party or parties, which shall, inter alia, include:

(a) the parties’ names, addresses, telephone, email, or any other means of communications;

(b) a description of the dispute and the mediation requests;

(2) submit parties’ identification documents, and submit a Power of Attorney if the party authorizes agent(s) to participate in the mediation proceedings;

(3) prepay the registration fee for mediation as per the Mediation Fee Schedule attached to these Rules.

The parties’ agreement to refer their dispute for mediation in accordance with these Rules or by PrivateCourt (if any) shall be enclosed with the Request for Mediation along with the evidence and other documents upon which the requests are based. The party applying for mediation may declare in writing that part of or all of its evidence and other supporting documents be accessible to the mediator only.

 

Article 8 Acceptance of a Case

Upon receipt of a Request for Mediation and its attachments, together with the identification documents of the parties, if PrivateCourt finds after examination the formalities required for mediation application to be complete, it shall accept the request and send a Notice of Mediation to both parties together with a copy of these Rules and the Panel of Mediators. The Request for Mediation and its attachments submitted by the applying party or parties shall be sent to the other party under the same cover unless all the parties jointly apply for mediation.

Where after examination PrivateCourt finds the formalities required for mediation application to be incomplete, it may request the applying party or parties to complete or amend them within a specified time period.

After the PrivateCourt accepts a case, it shall designate a case manager to assist with the procedural administration of the mediation.

 

Article 9 Confirmation to Participate in the Mediation by the Other Party

The other party shall, within 15 days from the date of receipt of the Notice for Mediation, confirm in writing whether it agrees or declines to participate in the mediation proceedings unless both parties have jointly applied for mediation. Where the other party does have difficulty in giving its reply within the said time period, it may apply for an extension before the deadline.

If the other party expressly declines to participate in the mediation proceedings or fails to give any response within the specified time period, the mediation proceedings shall terminate.

Where the other party confirms in writing its participation in the mediation after the specified deadline, the mediation proceedings may continue with the consent of the party applying for mediation.

Where the other party confirms in writing to participate in the mediation proceedings, all parties may, with the assistance of the PrivateCourt, reach a consensus on matters such as the method of payment and the allocation of the mediation fee advance between the parties, the number of mediators and the approach of appointment, and the place of mediation.

Where the parties fail to agree on the method and allocation of the advance payment, all parties shall prepay an equal proportion of the mediation fee.

Where a party agrees to participate in the mediation but refuses to prepay its proportion of the mediation fee, the other party or parties may prepay all the mediation fee.

 

Article 10 Reply

The other party shall, within 20 days from the date of giving its written confirmation to participate in the mediation proceedings, submit its reply (if any) in writing to the Request for Mediation as well as the facts and reasons. It may declare in writing that part of or all of its evidence and other supporting documents be accessible to the mediator only.

 

Article 11 Copies of Documents

The parties shall make their submissions in triplicate. Where there are more than two parties or more than one mediator, additional copies shall be provided accordingly.

 

Article 12 Appointment of Mediator

The parties may agree on the number of mediators and the approach of mediator appointment. Unless otherwise agreed by the parties, the mediation proceedings shall be conducted by a sole mediator.

The parties may jointly nominate a mediator, exclusively from the PrivateCourt’s Panel of Mediators.

Within 10 days from the date of the other party’s confirmation to participate in the mediation, or within 10 days from the date of receipt of the Notice for Mediation in the case of joint application by all the parties, the parties shall notify the PrivateCourt of their joint nomination of the mediator in writing, or entrust the PrivateCourt to appoint a mediator for them.

Where the parties fail to jointly nominate or jointly entrust the PrivateCourt to appoint a mediator, or fail to nominate a mediator in accordance with their agreed approach within their agreed time period, the PrivateCourt shall appoint the mediator for the parties.

If either party, within 10 days upon receipt of the Notice of the Mediator Appointment, raises any written objection to the PrivateCourt-appointed mediator with reasons stated, the PrivateCourt may appoint another mediator.

 

Article 13 Mediator’s Acceptance of the Nomination or Appointment

The mediator shall confirm whether to accept the nomination or appointment within 10 days upon receipt of the Notice of Nomination or Appointment from the PrivateCourt.

If the mediator declines the nomination or appointment or fails to reply within the above time period, a new mediator shall be nominated or appointed according to the same procedure that applied to the nomination or appointment of the previous mediator.

 

Article 14 Disclosure and Conflict of Interest

Within 10 days upon acceptance of the nomination or appointment, the mediator shall sign a Declaration of Independence and Impartiality and shall disclose in writing if there exist any circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence. If circumstances that need to be disclosed arise during the mediation proceedings, the mediator shall disclose such circumstances to the parties without undue delay. After the disclosure, with the approval of all parties, the mediator may continue to carry out his/her duties to mediate.

 

Article 15 Replacement of the Mediator

If it is unfeasible or inappropriate for a mediator to continue to fulfill his/her duties as a mediator, a new mediator shall be determined according to Article 12 of these Rules, unless the parties have agreed otherwise.

 

Article 16 Confidentiality

Unless otherwise agreed by the parties, mediation shall be conducted in camera with no written record of the mediation process.

Unless otherwise agreed by the parties or stipulated in the relevant law or administrative regulations, the mediator(s), the parties and their authorized representatives, other participants to the mediation proceedings, and the staff members of the PrivateCourt shall not disclose to any outsider any substantive or procedural matters relating to the case.

 

Article 17 Conduct of Mediation

Unless otherwise agreed by the parties, a mediator may conduct the mediation in any way he or she deems appropriate, including but not limited to:

(1) meeting with the parties or their authorized representatives separately or concurrently, and if necessary, after soliciting the opinions of the parties, the mediator may decide to meet with the parties without the presence of their agents;

(2) requesting the parties to provide supplemental materials or relevant opinions;

(3) requesting the parties to put forward their oral or written settlement proposals;

(4) hearing witness statement(s);

(5) conducting the on-site examination, or engage relevant experts to provide consulting advice or an appraisal opinion with respect to professional or technical issues, with the approval of all parties;

(6) providing suggestions and proposals to settle the dispute.

 

Article 18 Place of Mediation

Unless otherwise agreed by the parties, the mediation proceeding shall be conducted Electronically through e-mail and video hearing.

Where the parties have agreed on the place of mediation, the parties’ agreement shall prevail.

Absent of such agreement, the mediation shall be conducted in Mumbai at the Arbitration Centre of the PrivateCourt. If necessary, with the approval of the PrivateCourt, the mediation may be conducted in other places as well.

 

Article 19 Good Faith Cooperation

The parties shall cooperate with the mediator(s) in good faith with utmost sincerity, including but not limited to:

(1) providing relevant documents, information, and explanation as requested by the mediator(s);

(2) making best efforts to meet the requirement of the mediator(s) to hear from witnesses or experts;

(3) facilitating the on-site examination by the meditator(s);

The Parties shall comply with any time limit agreed by themselves or decided by the mediator(s).

 

Article 20 Settlement Agreement

The parties may reach a settlement agreement by themselves or with the assistance of the mediator(s) at any stage of the mediation proceedings. The settlement agreement shall, inter alia, include:

(1) the names and addresses of the parties;

(2) the mediator(s);

(3) the mediation requests and the matters for mediation;

(4) the settlement result agreed by the parties;

(5) the time and place of the conclusion of the settlement agreement.

After all the parties and the mediator(s) have signed and/or stamped on the settlement agreement, the PrivateCourt shall affix its seal on such agreement. The settlement agreement is binding upon all the parties. The parties shall comply with and carry out the settlement agreement in good faith.

The parties may reach a settlement agreement on part of the mediation requests.

 

Article 21 Termination of the Mediation Proceedings

The mediation proceedings shall be terminated if any of the following circumstances arises:

(1) in the case of unilateral application, the other party expressly declines to participate in the mediation proceedings or fails to give any response within the specified time period after receipt of the Notice for Mediation;

(2) any party notifies in writing that the mediation proceedings shall be terminated;

(3) at any stage of the mediation proceedings, if in the view of the mediator(s) the parties are unlikely to reach a settlement agreement, after soliciting the opinions of the parties, the mediator(s) may notify the parties in writing to terminate the mediation proceedings;

(4) the parties have reached a settlement agreement;

(5) the parties fail to pay the full amount of the mediation fee;

(6) other circumstances that require the termination of the mediation proceedings.

 

Chapter 3 Supplementary Provisions

 

Article 22 Mediation Fee and Actual Expenses

The parties shall pay the mediation fee according to the relevant provisions of these Rules and the Fee Schedule. The Fee Schedule shall form a part of these Rules.

The mediation fee is composed of the registration fee, the administrative fee, and the mediator’s fee. The PrivateCourt may also charge the parties for other additional and reasonable actual expenses, including but not limited to the travel and accommodation expenses of the mediator(s) and the case manager incurred in conducting the mediation at a place other than the arbitration center of the PrivateCourt or for on-site examination, as well as the costs and expenses of the expert or appraiser appointed by the mediator(s).

Unless otherwise stipulated in these Rules or agreed by the parties, the aforesaid fees shall be borne by the parties on an equal basis.

Where the parties and the mediator(s) have reached special agreement on the mediator’s fee, their agreement shall prevail.

 

Article 23 Other Issues

Neither party may invoke any statement, view, opinion or proposal by the other party or by the mediator(s) in the process of mediation as grounds for any claim, defense or counterclaim in any arbitral proceedings, judicial proceedings, or any other proceedings for the same or relevant dispute.

 

Article 24 Coordination of Mediation and Arbitration Mechanisms

Either party may, based on the arbitration clause contained in the settlement agreement or concluded between the parties separately, request the PrivateCourt to render an arbitral award in accordance with the terms of the settlement agreement pursuant to the relevant provisions of its Arbitration Rules.

Where the parties, pursuant to the relevant provision of the PrivateCourt’s Arbitration Rules, request an independent mediation to be conducted by a mediator different from the members of the arbitral tribunal during the arbitral proceedings of a PrivateCourt’s case, the PrivateCourt shall provide corresponding mediation service. 

 

Article 25 Coordination of Mediation and Litigation Mechanisms

The PrivateCourt may provide corresponding mediation service with the entrustment or appointment by a court of law.

 

Article 26 Other Supportive Services

The PrivateCourt may provide corresponding services upon a request to appoint a mediator and/or to provide other supportive services.

 

Article 27 Interpretation

These Rules shall be interpreted by the PrivateCourt.

 

Article 28 Coming into Force

These Rules shall be effective as of July 1, 2020. 

 

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