Relationship between Mediation and Arbitration proceedings

The commencement of mediation proceedings under the Rules does not, of itself, prevent the commencement of parallel arbitration or litigation.

Before a dispute arises parties may not know whether they wish to allow for the possibility of commencing or continuing arbitration, litigation or other proceedings while the mediation is under way. Article 10(2) of the ICC Mediation Rules clarifies that parties are not barred from commencing parallel arbitration or other proceedings unless they have agreed otherwise in writing or applicable law provides otherwise. In practice, it is not uncommon for tiered dispute resolution clauses to require parties to wait until the mediation has ended or a certain period of time has elapsed before commencing arbitration or litigation.

Article 10(3) of the ICC Mediation Rules prohibits a mediator from acting as arbitrator (or judge, expert or party advisor) in respect of the same dispute unless all of the parties so agree in writing. This establishes a right balance between respecting party autonomy and protecting parties from the due process risks inherent in appointing as arbitrator a person who has previously acted as a mediator in the same dispute.

The accompanying Mediation Guidance Notes (paragraphs 28 to 35) as well as the suggested Mediation Clauses C and D provide for further guidance and suggestions with respect to parallel proceedings.