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.