Commencement of Mediation

ICC Mediation can be commenced even without any pre-existing agreement for ICC Mediation.

Proceedings under the ICC Mediation Rules can be commenced either:

  • when there is a pre-existing agreement to refer a dispute to the Rules (Article 2)
  • or where one party is proposing mediation to the other (Article 3).

Where there is a pre-existing agreement to refer a dispute to the Rules (Article 2)

It is necessary to define the date on which the proceedings are commenced as it is from this date that the Centre assumes certain duties and responsibilities. Article 2(5) provides that the proceedings commence on the date on which the Request for Mediation is received by the Centre. Article 2(6) deals with specific time issues in relation to multi-tiered dispute resolution clauses, which commonly provide that neither party may move to the next step, such as arbitration or court litigation, until an agreed time period for settling the dispute by mediation has expired. Under this new provision, the starting point of the period reserved for the mediation is the acknowledgement by the Centre of the receipt of the Request for Mediation or the filing of the registration fee, whichever comes later. Consequently, it is no longer possible for a party to defeat the purpose of a multi-tiered clause by filing a Request for Mediation to trigger the running of the time period but then delaying payment of the filing fee and letting the time period expire without the mediation having been able to progress.

Where one party is proposing mediation to the other (Article 3)

The Centre can assist the parties in considering the proposal to mediate their dispute and support them in convening the mediation. An important function of the Centre is to provide assistance where one party is interested in using mediation but is unsure how to obtain the agreement of the other party or parties. This can arise where parties come from different jurisdictions with different levels of familiarity and experience with mediation or other ADR procedures. After receiving a proposal from one party to use settlement procedures under the Rules, the Centre will first inform all other parties about the proposal and can then ‘assist the parties in considering the proposal’ (Article 3(1)). This language is deliberately broad and permissive, enabling the Centre to take such steps as it considers appropriate in all the circumstances. These steps might include holding joint or separate telephone calls with each party to answer questions and provide information about mediation or other settlement procedures under the Rules. Article 3(4) enables the Centre to end its work on the referral and close the file if no agreement has been reached by the parties to refer the dispute to the Rules within a reasonable period following receipt of the Request.

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