Презентация на тему Mediation. Session 2. Mediation and Mediator Agreement

agreements

mediation agreements:
Ad hoc mediation agreements and
Mediation clauses

to mediate an existing dispute, one speaks of an

ad hoc mediation agreement

may agree to mediate disputes that may arise in

connection with their contract (i.e. future disputes) by including a mediation clause into their contract

to the nature of the obligation undertaken
According to the

effect on arbitral/court proceedings

between three types of mediation clauses (see the ICC

model mediation clauses):
Optional mediation
Obligation to consider mediation
Mandatory mediation (in the following, we will focus on this type of clause)

obligations are created by these three types of clauses,

if any?

between:
Pre-arbitral/pre-litigation mediation (court/arbitral proceedings are excluded during mediation)
Mediation with

the possibility to initiate parallel court/arbitral proceedings

“enforce” a mediation clause? In what circumstances may a

court or tribunal hear such enforcement requests?

obligations that may be enforced:
The obligation to mediate
The obligation

not to initiate court or arbitral proceedings (pre-trial or pre-arbitral mediation)

agreed to resolve any disputes arising in connection with

their contract by mediation. They have further agreed that each party may initiate arbitration proceedings after expiry of a two-month time period from the initiation of the mediation proceedings (by way of a request to mediate made by any of the parties). A dispute arises between A and B and A initiates arbitration proceedings. Is this claim admissible? The answer will depend on whether or not the mediation clause is enforceable…

is a controversial issue. A number of courts (in

various countries) have refused to enforce such clauses, both for policy and legal reasons

enforcing mediation clauses is the perceived unreasonableness of forcing

parties to seek to settle their dispute through mediation when one party has already initiated court or arbitration proceedings (that party is presumably no longer willing to mediate)

this policy reason? Is it compelling?

holding mediation clauses unenforceable consists of the possible failure

of such clauses to meet the contract law requirement of “certainty” (see the decision of the English Court of Appeal in the Sulamerica case)

arises from an insurance contract entered into in connection

with the construction of a hydroelectric power plant in Brazil (the insurers are Sulamerica and others; the insured it Enesa)

conditions of contract contain three relevant provisions:
Exclusive jurisdiction of

the courts of Brazil (condition No. 7)
Mediation (condition No. 11)
Arbitration under the rules of ARIAS in London (condition No. 12)

there is a contradiction between conditions No. 7 and

12

clause provides for mandatory pre-arbitral mediation and arbitration proceedings

may be initiated if:
90 days have passed since the serving of the notice of mediation
One party fails or refuses to participate in the mediation
One party terminates the mediation proceedings by written notice

dispute arose between the parties,
The insurers (Sulamerica and others)

initiated arbitration proceedings in London seeking a declaration of non-liability
The insured (Enesa) sought and obtained an injunction from a Brazilian court enjoining arbitration
The insurers sought and obtained and injunction from an English court restraining the insured from pursuing the proceedings initiated in Brazil

appeals from this decision of the English court on

three grounds:
The arbitration agreement is only optional under Brazilian law
The dispute submitted to arbitration does not fall within the scope of the arbitration agreement
The insurers failed to initiate mediation under condition No. 11 (we will only examine this issue here)

is whether condition No. 11 gave rise to an

obligation to refer disputes to mediation. What is the Court’s analysis?

applied the certainty rule, i.e. the requirement that the

parties’ respective rights and obligations be defined with sufficient certainty

held that this requirement was not met because:
The clause

did not set out a defined mediation process
The clause did not refer to any mediation service provider

your thoughts on this decision?

entered into between the parties to a dispute and

a mediator (see the CEDR Model Mediation Agreement). It notably sets forth the role and obligations of the mediator

between obligations of care and obligations of loyalty

types of obligations of care:
Various obligations to inform the

parties (e.g. in relation to the process, the parties’ rights and obligations, etc.)
The obligation to conduct the mediation with care and diligence (note that the mediator owes a duty of best efforts only)
A confidentiality obligation

main duties of loyalty:
The duty of neutrality (independence, impartiality)
The

duty to disclose facts that may call into question the mediator’s neutrality

of neutrality is notably defined in Art. 2(2) of

the European Code of Conduct for Mediators:
“Mediators must at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation.”