Guidelines for Mediation

ARIAS (Asia) MEDIATION SCHEME

Guidelines for Mediation

Introduction

Mediation is a flexible dispute resolution process where two or more persons or companies resolve their dispute using a private hearing before an independent neutral third party, which is the Mediator. The role of the Mediator is to assist the different parties to reach a mutually agreed outcome to the dispute. However, the Mediator does not have the power to impose any settlements on any party.

Mediator

The ARIAS (Asia) Mediation Scheme is specifically designed to meet the demands of the insurance and reinsurance market in Asia, and reflects our expertise of insurance and reinsurance disputes.

All of the ARIAS (Asia) accredited Mediators agree to comply with the Hong Kong Mediation Code.

Use of the Guidelines

Mediation conducted by an ARIAS (Asia) appointed Mediator, subject to these Guidelines, shall be available whenever parties have by any existing agreement or by a separate agreement intend to resolve their disputes by utilising the ARIAS (Asia) Mediation Scheme.

In any case where there is a ARIAS (Asia) appointed Mediator, these Guidelines shall be considered to be part of the parties’ agreement to mediate. These Guidelines may be varied by the parties agreement.

Appointment of the Mediator

Given the parties’ agreement to utilize mediation as their dispute resolution forum and have chosen not to appoint their own Mediator, they shall apply to ARIAS (Asia) to make such appointment. They may, if desired, provide ARIAS (Asia) with a brief summary of the matters in dispute for ARIAS (Asia) to make an appropriate nomination of Mediator.

ARIAS (Asia) will, upon receiving the required payment of appoint fee, as soon as reasonably possible appoint a Mediator.

The Mediator, whether appointed directly from the parties or from ARIAS (Asia), shall disclose to the parties any interest they may have in the disputed matter or with any of the parties, and any other circumstances that would likely affect the presumption of impartiality, prior to the acceptance of appointment.

Confirmation of the Mediator

ARIAS (Asia) appointed Mediator shall not embark upon the mediation without completing the ARIAS (Asia) Agreement of Mediation. The Agreement is to be signed by a representative of each party and by the Mediator.

Meeting of the Parties with the Mediator

Upon successful appointment, the Mediator will arrange all parties to the dispute to join for a meeting as soon as practicable. The date, time and venue of the meeting will be decided by the Mediator unless other agreed arrangement has been made by either or any of the parties.

The Mediator, at any time, may request for further details of the facts of issues from the parties. At least 7 days before the said meeting, or as otherwise agreed, each party to the dispute may provide the Mediator with a brief memorandum laying out the relevant facts and/or issues in dispute, any written evidence, other relevant documents on which the parties rely, and their respective position on these issues. The Mediator has the authority, and may, send the memorandum to the opposing parties, provided always only with the consent of the parties or if it is not clearly marked as Confidential. If possible, the parties should attempt to produce an agreed statement of the matters in dispute and background facts.

If needed, the Mediator may, with consent from the parties, visit any place relevant to the dispute, or seek further legal or other advice. During any of the aforementioned visit, the Mediator should be accompanied by representatives of all parties.

Conduct of the Meeting

The parties should bring to the meeting all documents and relevant information which they may wish to submit to the attention of the Mediator. They are also permitted to be accompanied by any legal or other advisers or assistants as they see fit. Parties should inform the Mediator, prior to the meeting, of the numbers of people expected to attend and each of their roles. The Mediator shall have control of the conduct of the meeting. He/she may hold joint or separate sessions with the parties, and may make suggestions and recommend any ways of effecting a settlement.

There will be no transcript or record of the proceedings at the meeting, other than the Mediation Settlement Agreement, recording that the Mediation has concluded and what settlement agreement, if any, has been reached.

Each party must have at least one individual, who is vested with full authority to reach a settlement of the dispute, in attendance at the hearing. The parties may either represent themselves, or if preferred, appoint suitable person to represent them. If any party chooses to be absent from the meeting, one of their representatives must be given the authority by that party to agree to a settlement of the dispute.

Termination of the Mediation

The Mediator may at any time terminate the mediation if he/she believes that the matters in dispute cannot be resolved by mediation. Any party to the mediation may withdraw from the mediation prior to the meeting by writing to the Mediator and all other parties to that effect.

Upon the termination of the Mediation, whether a settlement is reached or not, the Mediator will return all documents to their respective parties and destroy all recorded notes. The Mediation Settlement Agreement must be completed appropriately by the Mediator and signed by the parties and Mediator.

If the Mediation has to be deferred or extended, then the Mediator shall have the permission to retain any documents provided by the parties, and his/her recorded notes until the Mediation has come to an end by agreement.

Privacy and Confidentiality

The mediation process, including all administrative procedures, preparation, communication, meetings and private sessions with the Mediator, are private and strictly confidential and no information arising from any of the abovementioned occasions shall be disclosed by any parties or the Mediator to a non-party to the Mediation.

Communications between any party and the Mediator shall not be disclosed to the other party or parties without the agreement of the originating party. Furthermore, the mediation process is a bona fide attempt to resolve the disputes between the parties, and therefore without prejudice.

All statements, documents and other relevant information (whether oral or in writing) made in or arising out of the Mediation shall not be discoverable or admissible in any legal, arbitration or other proceedings,  notwithstanding that any statement, document or other relevant information which is otherwise discoverable or admissible shall become non-admissible merely by the virtue of its use in or in connection with the Mediation.

Parties are prohibited to call the Mediator as a witness in any subsequent legal proceedings to give evidence concerning matters disclosed during the Mediation.

Exclusion of Liability

The parties agree that neither ARIAS (Asia), its officers, servants, agents, nor appointed Mediator, shall be liable in any way for any act or omission arising out of or in connection with the services to be provided by ARIAS (Asia) and/or the Mediator, and such an undertaking shall be enforceable by ARIAS (Asia) and the Mediator.

Costs

Each party shall bear the costs of the Mediation equally with the other party or parties. All other costs in the dispute shall be borne by the party incurring them, unless the allocation is agreed in the Mediation Settlement Agreement.

Special Note

When the dispute arises out of a contract that excludes mediation as a dispute resolution procedure, the parties should agree how, if necessary, the timetable for setting the dispute should be altered to permit mediation. If any party has any doubts, they should seek legal advice before taking any steps which might affect the contract dispute settlement procedure. If the contract includes Mediation under the ARIAS (Asia) Scheme or “Rules”, then the mediation will be conducted in accordance with these Guidelines, the Agreement for Mediation, and other provisions contained in both of these.