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ACKNOWLEDGEMENT
In developing these Mediation Rules, the Hong Kong Institute of Architects and the
Hong Kong Institute of Surveyors, with the permission of the Hong Kong International
Arbitration Centre, had used the Hong Kong International Arbitration Centre’s
Mediation Rules (1999 Edition) as a starting point. The Hong Kong Institute of
Architects and the Hong Kong Institute of Surveyors acknowledges such assistance.
1. Mediation
Mediation under these Rules is a confidential, voluntary, non-binding and
private dispute resolution process in which a neutral person (the mediator)
helps the parties to reach a negotiated settlement.
2. Application of Rules
These Rules apply to the mediation of present or future disputes where the
parties seek amicable settlement of such disputes and where, either by
stipulation in their contract or by agreement, they have agreed that these
Rules shall apply. The parties may agree to vary these Rules at any time.
3. Initiation of the Mediation Process
(a) If a dispute arises, a party may request the initiation of mediation by
delivering a written request for mediation to the other party or parties.
Such request for mediation shall contain a brief self-explanatory
statement of the nature of the dispute, the quantum in dispute (if any),
the relief or remedy sought and nominating a mediator or mediators
thought suitable.
(b) The names, addresses, phone and fax numbers of all parties to the
dispute, and those who will represent them, should be exchanged
between the parties.
4. Response to Request for Mediation
A party or parties who receive a request for mediation shall notify any other
party within 14 days after receipt of the request whether any mediator
nominated is acceptable. Failure by any party to reply within 14 days shall be
treated as a refusal to mediate.
5. Appointment of the Mediator
Where the parties agree on a mediator and the proposed mediator is willing
to serve, the mediation shall proceed in accordance with these Rules. If the
parties fail to agree within the time stipulated in Rule 4 they shall apply to the
President or Vice-President of HKIA and the President or Vice-President of
HKIS who shall co-jointly appoint a single accredited mediator who is
prepared to serve and is not disqualified under Rule 6.
6. Disqualification of Mediator
No person shall act as mediator in any dispute in which that person has any
financial or personal interest in the result of the mediation except by consent
of the parties. Before accepting an appointment, the proposed mediator
shall disclose to the parties (and to HKIA and HKIS if the President or
Vice-President of HKIA co-jointly with the President or Vice-President of
HKIS have co-jointly made the appointment under Rule 5) any
circumstances likely to create a presumption of bias or prevent a prompt
resolution of the dispute. Upon receipt of the information HKIA and/or HKIS
shall immediately communicate the information to the parties for their
comments. If any party takes objection to the proposed mediator within 7
days he shall not be appointed. In such case the President or Vice-President
of HKIA co-jointly with the President or Vice-President of HKIS shall nominate
another suitable accredited mediator.
7. The Mediation Process
The mediator shall commence the mediation as soon as possible after his
appointment and shall use his best endeavours to conclude the mediation
within 42 days of his appointment. His appointment shall not extend beyond
a period of three months without the written consent of all parties.
8. Role of the Mediator
The mediator may conduct the mediation in such manner, as he considers
appropriate, taking into account the circumstances of the case, the wishes of
the parties and the need for a speedy settlement of the dispute.
9. Role of the Parties
The mediator may communicate with the parties together or with any party
separately, including private meetings and each party shall cooperate with
the mediator. A party may request a private meeting with the mediator at
any time. The parties shall give full assistance to enable the mediation to
proceed and be concluded within the time stipulated.
10. Representation
The parties may be represented or assisted by persons of their choice. Each
party shall notify in advance the names and the role of such persons to the
mediator and the other party. Each party shall have full authority to settle or
he accompanied by a person with such authority.
11. Termination of the Mediation
The mediation process shall come to end:
(a) Upon the signing of a settlement agreement by the parties or;
(b) Upon the written advice of the mediator after consultation with the
parties that in his opinion further attempts at mediation are no longer
justified or;
(c) Upon written notification by any party at any time to the mediator and the
other parties that the mediation is terminated.
12. Confidentiality
12.1
Mediation is a private and confidential process. Every document,
communication or information disclosed, made or produced by any party for
the purpose of or related to the mediation process shall be disclosed on a
privileged and without prejudice basis and no privilege or confidentiality shall
be waived by such disclosure. Confidentiality also extends to the settlement
agreement except where its disclosure is necessary for implementation or
enforcement.
12.2
Nothing that transpires during the course of the mediation is intended to or
shall in any way affect the rights or prejudice the position of the parties to the
dispute in any subsequent arbitration, adjudication or litigation.
13. Costs
13.1
Unless otherwise agreed, each party shall bear its own costs regardless of
the outcome of the mediation or of any subsequent arbitral or judicial
proceedings. All other costs and expenses shall be borne equally by the
parties and the parties shall be jointly and severally liable to pay to the
mediator such costs, including:
(a) the mediator’s fees and expenses;
(b) expenses for any witness or expert advice or opinion requested by the
mediator with the consent of the parties; and
(c) any administrative costs in support of the mediation including HKIA’s
and HKIS’s costs.
13.2
The mediator may at any time during the mediation require the parties to
make deposits and further deposits to cover any additional anticipated fees
and expenses and suspend the process until such deposit is made.
13.3
Any surplus funds deposited shall be returned to the parties at the conclusion of the mediation.
14. Mediator’s Role in Subsequent Proceedings
The parties undertake that the mediator shall not be appointed as adjudicator,
arbitrator or representative, counsel or expert witness of any party in any
subsequent adjudication, arbitration or judicial proceedings whether arising
out of the mediation or any other dispute in connection with the same
contract. No party shall be entitled to call the mediator as a witness in any
subsequent adjudication, arbitration or judicial proceedings arising out of
the same contract.
15. Exclusion of Liability
The parties jointly and severally release, discharge and indemnify the
mediator, HKIA, HKIS, their officers, members and employees in respect of
all liability whatsoever, whether involving negligence or not, from any act or
omission in connection with or arising out of or relating in any way to any
mediation conducted under these Rules, save for the consequences of fraud
or dishonesty.
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