Commercial Mediation Rules

Commercial Mediation Rules

 

Section I. Introductory Rules

 

Scope of application

 

Article 1

 

  1. These Rules apply to the mediation of disputes arising out of or relating to a contractual agreement or other legal relationship, where the parties agree to mediation pursuant to these Rules under the auspices of the Alternative Dispute Resolution Center at the American Chamber of Commerce in Kosovo. In the following text, such institution administering the mediation proceedings under these Rules shall be referred to as a ‘Commercial Mediation Institution’.
  2. The parties may, except as otherwise indicated, exclude or modify any provisions of the Rules to meet their needs.
  3. Where any of these Rules is in conflict with a provision of law, including the Kosovo Law on Mediation (03/L-057)  from which the parties cannot derogate, that provision prevails.

 

Notice and calculation of periods of time

Article 2

  1. For the purpose of these Rules, a notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission.
  2. If an address has been designated by a party specifically for this purpose, any notice shall be delivered to that party at that address, and if so delivered shall be deemed to have been received. Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorized.
  3. In the absence of such designation or authorization, a notice is:

(a)   Received if it is physically delivered to the addressee; or

 

(b)   Deemed to have been received if it is delivered at the place of business, habitual residence or mailing address of the addressee; or

 

  1. If, after reasonable efforts, delivery cannot be effected in accordance with paragraphs 2 or 3, a notice is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means that provides a record of delivery or of attempted delivery.
  2. A notice shall be deemed to have been received on the day it is delivered in accordance with paragraphs 2, 3 or 4, or attempted to be delivered in accordance with paragraph 4. A notice transmitted by electronic means is deemed to have been received on the day it is sent.
  3. For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

 

Representation and Assistance  

 

Article 3

 

The parties may be represented or assisted by persons of their choice. The names and addresses of such persons are to be communicated in writing to the other party, the mediator and the mediation institution; such communication is to specify whether the appointment is made for purposes of representation or of assistance.

 

 

Initiation of Commercial Mediation Proceedings

 

Article 4

 

  1. Any  party or parties to a dispute may initiate mediation under the auspices of the commercial mediation institution by sending a written request to mediate under these Rules to the commercial mediation institution and to the other party or parties, which shall include:

 

(a)   A description of the dispute including, if possible, an assessment of its value;

 

(b)   The names and contact details of the parties to the dispute, including lawyers, representatives and other persons providing assistance to the parties;

 

(c)    A reference to and a copy of the mediation clause or the separate mediation agreement that is invoked, if applicable;

 

(d)   A reference to and a copy of the contract or agreement of or in relation to which dispute arises, if applicable;

 

(e)    A proposal as to a mediator or the qualifications of the mediator, if parties have not previously agreed.

 

1. The party requesting mediation shall submit one copy of the request together with the enclosed documents for each party, each mediator and the Commercial Mediation Institution.

 2. Upon receipt of the registration fee, the Commercial Mediation Institution will register the request and send a copy of the request and enclosed documents to the other party or parties and set a 15 day period for the other party to accept mediation and designate a mediator (which may be the mediator proposed by the party requesting mediation).

 3. If there was an agreement between the parties to refer their dispute to mediation, but such agreement did not provide for mediation at the Commercial Mediation Institution pursuant to these Rules, of if there was no agreement by the parties to refer their dispute to mediation, the initiating party or parties may request the Commercial Mediation Institution to invite the other party to voluntarily participate in the mediation.

 4. If the other party does not reply to such request or invitation within such fifteen (15) day period, of if the other party explicitly rejects the invitation to mediate, the Commercial Mediation Institution shall promptly inform the requesting party in writing and close the file.

 

Article 5

 

  1. Mediation may be initiated pursuant to a court order in accordance with the Law on Mediation.   Such court order shall be considered a Request to Mediate pursuant to these Rules.
  2. In the case of a court-referred mediation, the Commercial Mediation Institution shall inform the referring court of the proceedings in accordance a protocol to be agreed by the Commercial Mediation Institution and the court.

 

Number of Mediators

 

Article 6

 

There shall be one mediator unless the parties agree otherwise. Where there is more than one mediator, they ought, as a general rule, to act jointly.

 

 

Appointment of Mediators

 

Article 7


 1. The parties may appoint the mediators who are on the list of mediators of the Commercial Mediation Institution or any other mediator licensed by the Ministry of Justice pursuant to the Mediation Law.

 

 2. With the prior consent of the Ministry of Justice, the parties may also appoint foreign citizens as mediators.

 

 3. In mediation proceedings with one mediator, the mediator shall be jointly selected by the parties. In mediation proceedings with two mediators, each party appoints one mediator.

 

 4. The parties may request the Commercial Mediation Institution to recommend suitable individuals to act as mediator. In making such recommendations, the Commercial Mediation Institution shall have regard to any qualifications expressed by the parties and to such considerations as are likely to secure the appointment of an independent and impartial mediator.

 

 5. Promptly after the joint designation of a mediator, the Commercial Mediation Institution shall contact the selected mediator to confirm his/her availability and acceptance of the case. The mediator shall promptly submit a statement of acceptance and independence to the Commercial Mediation Institution and the parties.  The statement of acceptance and independence shall disclose any actual or potential conflict of interest or any circumstances which are likely to give rise to justifiable doubts as to the mediator’s impartiality or independence, if any.  If after such disclosures, the parties agree to accept the mediator, the Commercial Mediation Institution shall confirm the mediator, unless the circumstances give rise to justifiable doubts as to the integrity of the mediation process.  The mediator’s duty of independence and impartiality and obligation to disclose set forth in this paragraph shall continue throughout the mediation procedure.

 6. If the parties have agreed to mediate but have not agreed on the designation of a mediator in the request for mediation or within the 15-day time period set for the designation of the mediator, or if the mediator designated by the parties cannot be confirmed by the Commercial Mediation Institution or refuses his/her designation, the Commercial Mediation Institution shall submit an identical list of three mediators to the parties.  If the parties have not agreed on the designation of a mediator within 5 days, the Commercial Mediation Institution shall close the file.

 7. If a mediator withdraws during the mediation process in accordance with the Mediation Law, the parties may request the Commercial Mediation Institution to suggest a replacement.

 

 

Submission of statements to mediator

 

Article 8

 

Promptly after confirmation of the mediator (s), the Commercial Mediation Institution shall transmit the file to the mediator and schedule the first mediation session.

 

Mediation Procedure

 

Article 9

 

  1. During the first mediation session, the mediator shall explain the mediation process and the roles and responsibilities of the mediator, each party and each representative, which will take part in the mediation, if any, and request the parties to sign an Agreement to Mediate at the Commercial Mediation Institution in accordance with Article 10.3-4 of the Law on Mediation.  The parties must sign such agreement even if they have signed an agreement to mediate prior to submitting the dispute to the Commercial Mediation Institution.
  2. The mediator shall promptly submit the Agreement to Mediate at the Commercial Mediation Institution signed by the parties and the mediator to the Commercial Mediation Institution.
  3. The date on which such Agreement to Mediate at the Commercial Mediation Institution is signed shall be considered the date of commencement of the mediation procedure.
  4. If the parties do not sign the Agreement to Mediate at the Commercial Mediation Institution , the mediator shall inform the Commercial Mediation Institution and the Commercial Mediation Institution shall close the file.
  5. The mediator may conduct the mediation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, and the need for a speedy settlement of the dispute (not to exceed the 90 day period specified in the  Law on Mediation).
  6. The mediator may communicate with the parties orally or in writing.
  7. The mediator may meet with or communicate separately with each of the parties if he/she considers that it would be in the best interest of the procedure, and may propose options for resolution of the dispute, but not the resolution itself.
  8. Whenever necessary, the mediator may, provided the parties agree and assume the expenses, seek expert advice concerning technical aspects of the dispute.
  9. At any stage of the mediation proceedings, with the parties’ agreement, the mediator may request the parties to submit written statements and such additional information as he/she deems appropriate.
  10.  Unless the parties have agreed upon the place where meetings with the mediator are to be held, such place will be determined by the mediator, after consultation with the parties, having regard to the circumstances of the mediation proceedings.
  11.  In order to facilitate the conduct of the mediation proceedings, the parties, or the mediator with the consent of the parties, may arrange for administrative assistance by a suitable person who shall be subject to the confidentiality provisions of these Rules.

 

Role of Mediator  

 

Article 10

 

  1. The mediator assists the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute. He/she has no authority to impose a settlement on the parties.

 2. The mediator shall at all times comply with the provisions of the Mediation Law, the Code of Conduct for Mediators in Kosovo and any other rules or regulations applicable to mediators adopted by the Ministry of Justice or its Mediation Commission.

3. The mediator and the parties will be guided by principles of fairness and respect.

 

Confidentiality

 

Article 11

 

  1. The mediation procedure is of a confidential nature. The Commercial Mediation Institution, the mediator and the parties must keep confidential all matters relating to the mediation proceedings, unless the parties agree otherwise. Confidentiality extends also the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
  2. Only after the end of the mediation procedure, with the consent of the parties, the agreement may be made public in accordance with applicable laws.
  3. When the mediator receives factual information concerning the dispute from a party, he discloses the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate. However, when a party gives any information to the mediator subject to a specific condition that it be kept confidential, the mediator does not disclose that information to the other party.

 

 

Termination of Mediation Proceedings

 

Article 12

 

  1. The mediation proceedings are terminated pursuant to the Law on Mediation:

 

(a)   By the signing of the settlement agreement by the parties;

 

(b)   By a written declaration of the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified;  

 

(c)    By a written declaration of the parties to the mediator to the effect that the mediation proceedings are terminated; or

 

(d)   If the legal deadline of 90 days for attaining the settlement agreement has expired.

 

2. Upon reaching an agreement in the mediation procedure, the mediator shall compile a written settlement agreement, which shall be signed by both parties and the mediator (s). Such agreement shall have the force of a final and enforceable document as provided in Article 12.4 of the Law on Mediation.  Further such agreement shall have the power of a court judgment if approved by the court or other competent body as provided in Article 14.4 of the Law on Mediation.

 

3. Upon termination of the mediation proceedings, the mediator shall promptly inform the Commercial Mediation Institution in writing and indicate the date of termination and whether the procedure resulted in a full or partial settlement.

 

Resort to Arbitral or Judicial Proceedings 

 

Article 13

 

  1. The parties undertake not to initiate, during the mediation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject of the mediation proceedings, except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
  2. If during the course of an arbitration proceeding under the auspices of the Commercial Mediation Institution, the parties decide to pursue mediation under these Rules, the arbitrator or the parties shall inform the Commercial Mediation Institution of such decision and proceed to appoint a mediator and participate in mediation proceedings pursuant to these Rules.

 

 

Costs

 

Article 14

 

  1. The costs of mediation proceedings (including mediators’ fees, registration and administrative fees, and other costs and advance payments of costs) shall be determined in accordance with the Schedule of Costs of Mediation Proceedings of the Commercial Mediation Institution in force at the time the mediation proceeding is commenced.
  2. The mediators’ fee and fees for registration and administrative fees shall be determined in accordance with the Administrative Directive 05/2011 on Mediators Fee.
  3. The costs of mediation proceedings shall be borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party are borne by that party.

 

 

Role of Mediator in Other Proceedings

 

Article 15

 

The parties and the mediator undertake that the mediator will not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceedings in respect of a dispute that is the subject of the mediation proceedings. The parties also undertake that they will not present the mediator as a witness in any such proceedings.

 

 

Admissibility of Evidence in other Proceedings  

 

Article 16

 

The parties undertake not to rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the mediation proceedings:

 

(a)        Views expressed or suggestions made by the other party in respect of a possible

settlement of the dispute;

 

(b)        Admissions made by the other party in the course of the mediation proceedings;

 

(a)                 Proposals made by the mediator;

 

(b)               The fact that the other party had indicated his willingness to accept a proposal for

settlement made by the mediator.

 

 

Exclusion of Liability

 

Article 17

 

Save for intentional wrongdoing, the parties waive, to the fullest extent permitted under the applicable law, any claim against the mediators, the Commercial Mediation Institution and any person appointed by the mediators based on any act or omission in connection with the mediation.  


 

 


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