ARIAS (Asia) MEDIATION SCHEME
Notes to Mediation Agreement
“Paragraph” numbers correspond to those in the Mediation Agreement.
- The full provisions of the ARIAS (Asia) Mediation Scheme are contained in
- The Introduction to the Scheme
- The Mediation Agreement, and these Notes
- The ARIAS (Asia) Guidelines for Mediation
- The ARIAS (Asia) pro forma Mediation Settlement Agreement
- The Mediator may be appointed jointly by the Parties, who are free to nominate anyone whom they consider suitable. If the Parties prefer, or if they are unable to agree on a Mediator, then they may apply to the Honourable Secretary of ARIAS (Asia) requesting that ARIAS (Asia) make the appointment. In the latter case, nominations will only be made from the ARIAS (Asia) panel of accredited mediators, all of whom have successfully completed the prescribed training or have otherwise satisfied ARIAS (Asia) as to their level of competency.
- Unless the Parties have (previously or otherwise) agreed a procedure for appointment of the Mediator the following default procedure is recommended:
- the Party proposing mediation should accompany its request for mediation with the names of three candidates for the position
- the responding Party should reply within 14 days accepting one of the nominations for the position or providing three alternative nominations for the position
- if within a further 14 days, or such extension of time as they agree, the Parties are still unable to agree on the appointment then application can be made to ARIAS (Asia) for a default appointment to be made.
- ARIAS (Asia) will charge a fee of HK$1,000 for its appointing service to be shared equally between the parties.
- The Parties must ensure that someone of sufficient seniority and with proper authority to settle is available for the whole of the estimated duration of the Mediation. Should more time than originally required be needed, that can be arranged at the appropriate stage of the mediation by agreement of all concerned.
- Note that it will also be necessary to arrange suitable premises for the Mediation. The Parties, or their solicitors, may choose to do this themselves, or ask the Mediator so to do (for which the Mediator may make a charge).
- The “total cost of the Mediation” shall include the Mediator’s fees (and expenses if any) as agreed, any ARIAS (Asia) appointment fee(s) and the costs of securing suitable premises, refreshments and the like.
- Mediators appointed by ARIAS (Asia) will charge a fee as determined by the mediators themselves. (The basis and level of mediation charges under Party appointments will be at the discretion of each Mediator and should be agreed by all Parties in advance.)
- All other costs in the matter not included in the “total cost of the Mediation” will be borne by the Party(ies) by whom they are incurred unless any other allocation is reached as part of any settlement agreement in the Mediation or ordered by any appropriate court or tribunal.
- If the Parties wish to provide any documents or similar materials for the Mediator these should be provided not less than seven (7) working days before the date of the Mediation (or any other time by agreement with the Mediator). All submissions should be clearly marked to show whether or not they have also been copied to the other Party(ies) or are to be treated as confidential.
- If possible the Parties should also provide the Mediator with an agreed summary of the facts of the dispute and the outcome sought.
- If possible, the Mediator should be notified in advance of the numbers of people expected to attend the Mediation, and their roles.
(Paragraphs 8.2 and 8.5)
- If the Mediation has to be deferred or extended, then the Mediator shall be permitted to retain any documents provided and their own notes until the Mediation has been agreed to have ended.
- The pro forma ARIAS (Asia) Mediation Settlement Agreement or a settlement agreement acceptable to the Parties in broadly similar form, should be drawn up at the end of the Mediation, whether or not a settlement agreement is reached, and signed by a representative of each Party and the Mediator. If this is not done it will not be clear that the Mediation has ended (or when) which may have consequences in any further proceedings. If the settlement agreement itself is complicated and requires later legal drafting, then the Mediation Settlement Agreement should contain, at the least, “Heads of Agreement” or a brief summary of the key points agreed, and be signed as above.