Mediation

1. Scope of application
   1. These Rules shall govern all mediations where an agreement to mediate refers to the Mediation Rules of GIDI or where parties agree to apply these rules.
   2. Unless the parties have agreed otherwise, this version of the Rules shall apply to all mediations in which the request for mediation pursuant to Article 2 of the Rules is submitted to the Secretariat on or after the date of coming into force.
2. Request for mediation
   1. The party(ies) requesting a mediation (the “Requesti ng Party(ies)”) shall submit a request for mediation (the “Request”) in English, German, French, Italian or a Chinese language.
   2. The Request shall include:
      1. the names, addresses, telephone numbers, fax numbers (if any), e-mail addresses and other contact details for appropriate electronic communication (if any) of the parties and their counsel (if any), as well as a copy of the counsel’s Power-of- Attorney;
      2. a copy of the agreement to mediate or relevant mediation clause in an existing agreement (if any);
      3. a short description of the dispute, and an estimate of the amount in dispute (if any);
      4. a joint designation of the mediator, or a descrip tion of any desired qualifications of the mediator;
      5. an indication, if the parties so wish, that the Simplified Designation Procedure, pursuant to Article 5, should apply;
      6. a proposal as to the language of the mediation if the parties have not previously agreed thereon;
   3. The party(ies) may enclose any other document deemed relevant for the mediation.
      1. The Request may be submitted to the Secretariat by e-mail. Upon request of the Secretariat, the Request- ing Party shall provide hard copies of the Request. The parties and the Secretariat shall submit all further documents by e-mail or other appropriate electronic means.
      2. Upon receipt of a validly submitted Request, the Secretariat shall:
         • proceed pursuant to Article 6, if the Request was submitted jointly by the parties, and they have agreed to refer to the Rules and designated a mediator;
         • proceed pursuant to Article 4 or 5, if the Request was submitted jointly by the parties, and they have agreed to refer to the Rules, but have not designated a mediator;
         • provide the other party(ies) with a copy of the Re- quest and other documents submitted pursuant to Article 2(2), if the Request was not submitted jointly by all parties. Where the Request was submitted by one or several parties with a prior agreement to mediate without referring to the Rules, or where the Request was submitted by one or several parties in the absence of a prior agreement to mediate, the Secretariat shall also invite the other party(ies) (the “Responding Party(ies)”) to explicitly agree on the application of the Rules within a 15-day time limit.
      3. If no answer is received from a Responding Party by the Secretariat within the time limit set by the Secretariat pursuant to Article 2(5)(c), the mediation shall not proceed with that party. The Secretariat shall promptly inform the parties in writing.
      4. If the Requesting Party(ies) and any Responding Par- ty wish to proceed to mediation without one or more party(ies) that have refused to do so, the mediation shall continue between the parties in writing.
3. Number of mediators
   Unless otherwise agreed by all the parties, the mediation shall be conducted by one mediator.
4. Designation of a mediator
   1. The parties may jointly designate a mediator. If the designated mediator is not confirmed by the Secretariat or refuses his/her designation, the Secretariat will grant a 15-day time limit to the parties to jointly designate a new mediator.
   2. If the parties fail to jointly designate a mediator with in 15 days as from the date of receipt of the Secretariat’s letter inviting them to do so, the Secretariat will submit a list of mediators to the parties, including the range of fees indicated by the mediators to the Secretariat, and invite the parties, within a short additional period of time, to each indicate to the Secretariat their order of preference regarding the pro- posed mediators. The Secretariat shall then appoint the mediator taking into account the preferences indicated by the parties. If the parties fail to provide their order of preference, the Secretariat shall nonetheless proceed to appoint the mediator.
   3. Upon request by the parties, the Secretariat will assist with the designation of co-mediators.
   4. If, within five days from receipt of the notice of appointment, a party objects in writing to the appointment of a mediator and gives reasons considered to be valid, the Secretariat shall promptly appoint a dif ferent mediator from the proposed list or proceed pursuant to Article 4(2).
5. Simplified designation procedure
   1. The Simplified Designation Procedure shall apply for the designation of the mediator if the parties jointly agree, or do not object to its application in cases where the amount in dispute is below CHF 50,000.
   2. Whenever the Simplified Designation Procedure applies, the Secretariat shall, in accordance with Article 6:
      • confirm the mediator jointly designated by the parties; or
      • appoint one mediator taking into account the parties’ description (if any) of their preferences or desired qualifications of the mediator as submitted to the Secretariat pursuant to Article 2(2)(d) of the Rules, but without submitting a list of mediators to the parties.
6. Confirmation of a mediator
   Unless otherwise agreed by all the parties,
7. Replacement of a mediator
   If a mediator is no longer in a position to fulfil his/her duties or is no longer accepted by the parties, the Secretariat shall, upon joint request by the parties, proceed pursuant to Articles 4 or 5 of the Rules.
8. Transmission of the file to the mediator
   When confirming or appointing a mediator, the Secretariat shall transmit to him/her the file for the mediation.
9. Independence, impartiality and availability of the mediator
   1. The mediator shall be and remain at all times impartial and independent from the parties and available to conduct the appointment.
   2. Prior to his/her confirmation or appointment by the Secretariat, the prospective mediator shall:
      • return to the Secretariat, duly dated and signed:
        • the agreement to serve as a mediator; (ii) the declaration of independence, impartiality, and availability; and (iii) a curriculum vitae;
      • state in writing that he/she complies with the present Rules and with the European Code of Conduct for Mediators (or any other) in force on the date on which the mediator is appointed; in the event of a discrepancy between the Rules and the Code, the Rules shall take precedence; and,
      • disclose any circumstances, including any circumstances listed in the European Code of Conduct for Mediators, known to him/her that are likely to give rise to justifiable doubts as to his/her in- dependence or impartiality towards the parties, or regarding his/her appointment.
10. Role of the mediator
    1. The mediator shall assist the parties in their negotiations, with a view to reaching a mutually acceptable and satisfactory resolution of their The mediator has no authority or power to impose a settlement on the parties.
    2. The mediator and the parties shall be guided by the principles of fairness, party autonomy and mutual respect.
11. Conduct of the Mediation
    1. The mediation shall be conducted as agreed upon with the parties. Failing such agreement, the media tor shall proceed as he/she considers appropriate, taking into account the circumstances of the case, the wishes of the parties, their budgets and time- lines, and the need for a prompt settlement of the dispute.
    2. Immediately after receipt of the file from the Secretariat, the mediator shall contact the parties to schedule an initial conference to discuss the manner in which the mediation will proceed. A short note summarising the agreement of the parties with respect to the conduct and the organisation of the mediation (language, time and place of meetings, submissions, participants, ) shall then be drafted by the parties (with or without the assistance of the mediator as the parties may choose), with a copy to the Secretariat.
    3. Subject to the agreement of the parties, the mediator may hold separate meetings with the parties (caucus), when The mediator shall maintain strict confi dentiality regarding any information exchanged dur ing those separate meetings vis-à-vis each party.
12. Representation
    The parties shall appear at all mediation sessions in person or, for legal entities, through duly authorized and empowered representatives of the entity. The parties may be assisted and accompanied by the legal counsel or advisors of their choice.
13. Confidentiality
    1. The mediation is confidential. No observation, statement or proposition made during the mediation or documents prepared for the purposes of the mediation can be disclosed outside of the mediation or subsequently used without the written consent of all persons involved in the mediation, even in the event of litigation or arbitration, except to the extent necessary to enforce a written settlement agreement that concludes the mediation or if otherwise required by law.
    2. A mediator cannot act as an arbitrator, judge, expert, or as a representative or advisor of one party in any subsequent proceedings relating to the same dispute or involving any of the parties to the mediation after the Request has been validly submitted to the Secretariat.
14. Seat of the mediation
    Unless otherwise agreed by the parties, the seat of the mediation shall be deemed to be at the place of the Secretariat’s office where the Request was submitted, although meetings may be held elsewhere.
15. Applicable law
    Unless otherwise agreed by the parties, the conduct of the mediation is subject to Swiss law and/or Chinese Law as may be designated by the parties.
16. End of the mediation and certification thereof
    1. A mediation under the Rules shall be deemed to have ended:
       1. upon the signing by all parties of a settlement agreement putting an end to the dispute;
       2. after 90 days, if a defective or incomplete Request has been submitted to the Secretariat, and the Requesting Party(ies) have not timely remedied the defect as requested by the Secretariat;
       3. at any time after the mediator has provided the parties with a written note, pursuant to Article 11(2) of the Rules, if a party notifies the mediator and the Secretariat in writing of its decision to terminate the mediation and the remaining par- ties do not wish to continue without that party;
       4. at any time after the mediator has provided the parties with a written note, pursuant to Article 11(2) of the Rules, if, in the opinion of the mediator, further efforts would not contribute to a resolution of the dispute and he/she notifies the parties and the Secretariat in writing of his/her decision to terminate the mediation;
       5. upon expiration of any time limit set by the parties or the mediator for the resolution of the dispute, if not extended by agreement of all parties and the mediator.
    2. The mediator shall promptly inform the Secretariat of the end of the mediation in a written note indicating the date of termination and whether the mediation resulted in full, partial, or no settlement.
    3. In multi-party mediations, if one party or some of the parties decide to withdraw from the mediation:
       1. the remaining parties shall promptly inform the Secretariat in writing whether they wish to pursue the mediation, and if so, if they wish to continue the mediation with the appointed mediator;
       2. the mediator shall promptly inform the Secretariat in writing of the withdrawal of the party(ies) from the mediation, and indicate whether he/she agrees to continue the mediation with the remaining parties;
       3. The Secretariat shall confirm in writing to the parties and the mediator the end of the mediation;
       4. Upon request of the parties or the mediator, the Secretariat shall provide the parties and the mediator with a mediation certificate confirming that the mediation took place and stating whether it led to a settlement.
          
          When confirming or appointing a mediator, the Secretariat shall transmit to him/her the file for the mediation.
17. Settlement agreement and certification thereof
    1. Unless otherwise agreed by the parties in writing, no settlement is reached until it has been made in writing and signed by the relevant.
    2. Upon request by the parties and if provided by the mediator with a signed original hard copy of the settlement agreement, the Secretariat may issue certified copies of the settlement agreement to the parties.
    3. Upon request by the parties and if the mediator confirms in writing that he/she witnessed the parties signing the settlement agreement or if the parties sign the settlement agreement at the Secretariat, the Secretariat may provide the parties with a certificate of authenticity of the settlement agreement.
18. Recourse to arbitration
    1. The parties may jointly agree in writing at any time to submit their dispute or any part of it to GIDI for arbitration.
    2. Any agreement reached as a result of the mediation may be reduced to writing and submitted to GIDI for conversion into an arbitral agreement under the GIDI arbitral rules in order that it may have the effect in international law to be enforceable under the New York Convention.
19. Mediation during the course of arbitral proceedings
    In all arbitral proceedings pending before GIDI, a party or the arbitrator(s) may suggest that the parties seek to amicably resolve the dispute, or any part of it, by recourse to mediation.
20. Exclusion of liability
    Neither GIDI nor their staff, executives and board members, nor the mediators, arbitrators, nor any experts appointed by them shall be liable for any act or omission in connection with any mediation conducted under these Rules, except if the act or omission is shown to constitute their own intentional wrongdoing or gross negligence.
21. Mediation Costs
    The fees, costs and expenses of GIDI and the mediator (the “Mediation Costs”) are determined pursuant to the Schedule of Costs published on the GIDI website.
22. Apportionment of the Mediation Costs
    1. Unless otherwise agreed by the parties, all Mediation Costs shall be shared equally amongst the parties. The parties are jointly and severally liable for the payment of all the Mediation.
    2. Unless otherwise agreed by the parties, all personal expenses incurred by a party in relation to the mediation (for example its legal fees, hotel, travel, ) are borne by that party and are not included in the costs of the Mediation Costs.
23. Deposits for fees and costs
    GIDI shall hold the deposits to be paid by the parties in its bank account.
24. Statement of costs
    1. At the end of the mediation, the mediator shall provide an invoice for his/her fees and expenses to the parties, with a copy to GIDI.
    2. The invoice shall include the details of the expenses incurred in the course of the mediation, the time spent by the mediator, the agreed rate, any applicable tax and all payments received.

The parties hereby agree to submit the following dispute to mediation in accordance with the GIDI Mediation Rules:

[brief description of the dispute]

The seat of the mediation shall be … [city] in … [country], although the meetings may be held in … [city] in … [country] or remotely as the parties may agree

The mediation shall be conducted in … [specify desired  language/s].

List names of the parties and authorised representatives (if any)