Although the saying goes that a poor deal is better than a good trial, the intervention of an independent, neutral and impartial third party often helps reach a win-win deal or even a creative solution.
Safeguarding the confidentiality of an innovative process, protecting the company’s brand or preserving the reputation of its executive, so many situation worth avoiding the public eye.
Besides perfectly mastering the subject in question, the mediator spontaneously understands the dispute’s national and international impact on your activity. His or her role is to defend the strategic interests of the company, which implies to find practical solutions.
Three people who wish to make a deal are very likely to find a viable solution, especially when mediation enables, if necessary, to set aside legal rules.
Avoiding delays from a backlogged justice system is an absolute necessity when the survival of a company is at stake… Remaining in control of time is the safest way to swiftly resume growth.
Mediation has existed since ancient history. In commercial matters, it serves as a management tool particularly adapted to companies’ needs.
ACKNOWLEDGE THE VIRTUES OF AMICABLE SETTLEMENT WITH A “MEDIATOR”
Above all, a successful mediation is conditioned by the parties will to reach an agreement, the parties good faith, the respect of confidentiality and, of course, the quality of the mediator (impartial, competent, diligent, attentive, respectful…). Beyond the mechanism’s efficiency, business executive or general counsel must be firmly convinced that litigation enhances differences.
ANTICIPATE THE DISPUTE… USING THE PROPER CLAUSE
As an effective alternative to the “dispute resolution” clause, the mediation clause provides for amicable settlement of potential dispute through the intermediary of an independent, neutral and impartial third party.
CLARIFY THE MEDIATOR’S FUNCTION
The mediator is a “catalyst of the parties’ relationship” and not an “advice giver”. Neutral and Impartial, he or she uses active listening skills in order to rephrase the parties’ words and reconcile their respective views.
DEFINE THE “HOWS”
In order to recreate a constructive dialogue between the parties, the mediator must go over the means to find a possible solution to the dispute.
REOPEN DIALOGUE
Using mediation to gain confidential information or as a dilatory plea are avoidable pitfalls. Opening up dialogue between the parties helps circumvent those. A successful mediation is not necessarily defined by reaching a deal but can consist in reinstating dialogue between parties.
The International Arbitration Chamber of Paris organizes all types of mediation, including Med-arb.
By seizing the International Arbitration Chamber of Paris, the parties decide to adopt its Mediation Rules which organizes the practical aspects of the mediation procedure.
The International Arbitration Chamber of Paris undertakes the proceedings. To that end, the Chamber provides to the parties, besides its Mediation Rules and a list of mediators:
By doing so, the International Arbitration Chamber of Paris brings great serenity to the parties.
He or she helps reinstate dialogue between the parties when their communication has become dysfunctional.
Therefore, the point is not to give a final solution the way a judge or an arbitrator would but to help the parties negotiate an amicable solution.
In case of court-ordered mediation, the judge must give an authorization to the nomination of a mediator.
The point is not to agree with the opinion or recommendation of a third person, but to build a custom-made deal. If the parties manage to conclude a deal, the later would have the same binding effect than a contract. When reciprocal concessions are made, the contract is qualified of transaction, which consequently prevents any new legal action with the same cause of action in accordance with article 2052 of the French Civil Code: “the transaction bars the introduction or the pursuit between the parties of a legal action with the same cause of action”.
In the event the parties cannot reach a deal, they are entitled to use arbitration.
The Rules of the International Arbitration Chamber of Paris define all the applicable dispositions to mediation proceedings.
They are adapted to all types of disputes in connection with commercial exchanges and correspond to companies’ needs operating at national or international level.
Entered into force in 2021, the last version of the Mediation Rules of the CAIP embeds the last evolutions in civil and commercial mediation.
Any payment is registered in an enforceable contract. To find out more, check the Mediation Rules. The mediation’s costs depend on the amount in dispute and the time spent on the case by the mediator. These fees remain quite low. They are calculated in accordance with the following price scale.
In force as from 01/01/2021
1.1 The purpose of the mediation rules (hereinafter the “Rules”) of the International Arbitration Chamber of Paris (hereinafter the “Chamber”) is to establish a procedure enabling the parties, under the aegis of a mediator, a neutral and independent third party, to find a solution to their dispute themselves.
1.2 Mediation can be implemented:
1.3 The Chamber has sole authority to organise mediations subject to these Rules, of which the parties, by accepting them, adopt all the provisions and submit to their application, unless otherwise expressly agreed between them.
1.4 The Chamber may also offer mediation administration services in the case of a procedure not subject to these Rules. It is then up to the parties who intend to use its services to determine with the Chamber the mission they wish it to carry out.
1.5 Unless otherwise provided for in the Rules, all communications between the Chamber and the parties shall be made by electronic means, to the following address: procedure@arbitrage.org.
2.1 Any party wishing to initiate a mediation procedure must file a request with the Chamber containing:
2.2 In order to be registered by the Chamber. the request for mediation must be accompanied by the payment of the opening fee, as set out in the schedule appended to these Rules, in force on the date of filing the request. This opening fee shall in any case be retained by the Chamber.
3.1 Where the parties have contractually agreed to submit their dispute to a mediation procedure, the Chamber shall, upon receipt of the request referred to in Article 2, acknowledge receipt of the request and notify the other party by any means with acknowledgement of receipt of the implementation of the mediation. The latter shall have a period of ten (10) days from receipt of the notification to submit its observations.
3.2 In the absence of a contractual agreement by the parties to submit their dispute to a mediation procedure, the Chamber shall, upon receipt of the request referred to in Article 2, acknowledge receipt of the request and notify the other party by any means with acknowledgement of receipt of the mediation proposal. The latter shall have a period of ten (10) days from receipt of the notification to respond to the proposal.
4.1 Where the parties have contractually agreed to submit their dispute to a mediation procedure, the Chamber shall, upon receipt of the observations of the other party or upon expiry of the time limit provided for in Article 3.1, appoint a mediator.
4.2 In the absence of a contractual agreement by the parties to submit their dispute to mediation, the Chamber shall:
5.1 Unless otherwise agreed by the parties, the mediator shall be appointed by the President of the Chamber.
5.2 In the event of mediation ordered by a judge, the latter must approve the appointment of the mediator.
5.3 In the event of the death, refusal of mission, incapacity or impediment of any kind of the mediator, the President of the Chamber shall proceed with his or her replacement.
6.1 The mediator must be impartial, independent and neutral towards the parties and remain so until the end of the procedure.
6.2 In this respect, the mediator shall, before accepting his or her mission, submit a declaration of acceptance, availability, impartiality and independence to the Chamber. He or she must disclose all the facts or circumstances which, from the point of view of a reasonable third party having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to his or her impartiality or independence.
6.3 After accepting his or her mission, the mediator must immediately notify the Chamber of any facts or circumstances of the same nature as those referred to in Article 6.2, concerning his or her impartiality or independence and which arise during the mediation. The Chamber shall communicate these elements to the parties. In the event of reciprocal agreement between them, the mediator shall continue his or her mission. Otherwise, the mediation is suspended until the President of the Chamber proceeds with the replacement of the mediator.
7.1 After the appointment of the mediator, the Chamber shall ask the parties to pay as soon as possible a deposit covering a fixed fee of 10 hours of mediation fixed in accordance with the fee scheduled appended to these Rules, in force at the time of the referral.
7.2 The mediation provision covers the administrative costs of the Chamber as well as the mediator’s fees, including the examination of the file, mediation meetings and exchanges with the parties. However, it does not cover any possible disbursements including, in particular, transport, accommodation costs or additional rental of meeting rooms.
7.3 The mediator shall contact the parties and begin his or her mission as soon as the advance requested from the Chamber has been paid in full.
7.4 In the course of a mediation, the Chamber may request the payment of an additional advance, after obtaining the agreement of the parties and, if necessary, of the judge who ordered the mediation.
7.5 Unless otherwise agreed by the parties, the costs and fees of mediation shall be shared equally between them, one party nevertheless having the option of settling the outstanding balance in the event that the other party fails to pay its share.
7.6 The provisions to be applied to mediation costs and fees shall in any event be retained by the Chamber, regardless of the duration of the mediation.
8.1 Unless otherwise agreed by the parties and unless prohibited by law, the mediator, the parties and their counsel shall be bound by the strictest confidentiality in all matters relating to the mediation procedure.
8.2 In this respect, no observation, declaration or proposal made before or by the mediator may be subsequently used in any other procedure, whether arbitral or judicial.
9.1 The mediator does not impose on the parties a solution to their dispute, but assists them in finding a negotiated solution to their dispute.
9.2 In this respect, the mediator shall conduct the mediation process in a neutral and impartial manner and with respect for the respective interests of each of the parties.
9.3 The mediator, together with the parties, organises the conduct of the mediation procedure. He or she may receive the parties at their convenience and at the place he or she determines. He or she can hear them and their counsel, separately, together, or as they wish. He or she may ask them for any useful information and, in any event, shall ensure, at any stage of the procedure, that they are treated in a balanced manner and that the principle of confidentiality is respected.
9.4 The Chamber places its premises at the disposal of the parties and the mediator, for the organisation of their meetings; with the agreement of the parties and the mediator or at their request, it may also organise meetings by video or audio conference.
9.5 Where the parties have contractually agreed to submit their dispute to mediation, the refusal by one of them to attend the first meeting shall result in the establishment of a statement of failure to act submitted by the mediator to the Chamber, which shall then close the file and inform the parties.
10.1 The mediation procedure may not exceed a period of sixty (60) days from the appointment of the mediator. This period may be renewed by the Chamber or the judge who ordered the mediation, with the agreement of the mediator and all parties.
10.2 The Chamber reserves the right to close the mediation procedure when none of the parties takes any action without a valid and justified reason for thirty (30) days and after a reminder by email that has remained unheeded for fifteen (15) days.
11.1 The mediation ends :
11.2 In all cases, the mediator shall inform the Chamber in writing and without delay, which shall then close the file and inform the parties as well as the judge who ordered the mediation if necessary.
11.4 If the mediation procedure fails, the parties may request that the Chamber initiate arbitration proceedings. Similarly, in the case referred to in Article 1.2 c), the parties shall have the possibility to request the resumption of the arbitration proceedings. In these two cases, in accordance with the provisions of the Chamber’s arbitration rules, the mediator cannot be appointed as an arbitrator , nor intervene in any capacity whatsoever in the dispute.
12.1 Although in principle the mediator cannot be appointed as arbitrator, if the parties agree, they may, subject to the mediator’s agreement, agree to appoint the mediator as arbitrator and request him or her to confirm the memorandum of understanding in an award by consent. The appointment of the mediator as an arbitrator shall be subject to a written agreement signed by the parties in which they accept his or her appointment with regard to his or her independence and impartiality.
12.2 The Chamber shall then register a joint Request for Arbitration by the parties and, in addition to the costs and fees already incurred by the parties under the mediation procedure, request an additional advance representing one third of the arbitration costs in principle applicable to proceedings with a sole arbitrator as provided for in the schedule appended to the Chamber’s arbitration rules in force on the date of the Request.
12.3 After payment of the additional advance, the President of the Chamber shall validate the appointment of the arbitrator, who may then pronounce an award by consent, in accordance with the provisions of the Chamber’s arbitration rules, while verifying that the agreement reached between the parties is not contrary to public policy or the rights of a third party.
13.1 The request for mediation shall be examined in accordance with the rules in force on the day it is submitted.
13.2 For all purposes, the date of receipt of the request for mediation, after payment of the opening fee in accordance with Article 2.2, shall be deemed to be the date of commencement of the proceedings.
13.3 Any interpretation of these Rules shall be a matter for the Chamber.
13.4 The mediator, the Chamber and its staff shall not be liable for any act or omission in connection with the mediation procedure, except to the extent that such limitation of liability is prohibited by law.
If, as a mediator, you wish to intervene before the International Arbitration Chamber of Paris, we invite you to submit your application by sending us the following details:
Once the file is transmitted, the CAIP acknowledges receipt of the request for mediation which is then notified by all means to the other party.
The other party has a period of 10 days from the receipt of the notification to respond to the proposal.
The procedural delay: mediation may not exceed a period of sixty days from the appointment of the mediator. However, this delay can be renewed.
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