- What is mediation?
Mediation is a flexible process conducted confidentially in which a neutral person actively assists the parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.
The principal features of mediation are that it:
- Involves a neutral third party to facilitate negotiations
- Is quick to set up and is inexpensive, in most circumstances without prejudice and confidential
- Involves party representatives with sufficient authority to settle
- Is flexible, enabling the process to be designed and managed by the Mediator to suit the parties, in consultation with them
- Puts the parties in control (unlike litigation/arbitration)
- Enables the parties to devise solutions which are not possible in an adjudicative process such as litigation or arbitration, and which may benefit all the parties, particularly if there is the possibility of a continuing relationship between them
- Can be used in both domestic and cross-border disputes, two-party and multi-party disputes, and whether or not litigation or arbitration has been commenced.
Any contemplated or existing litigation or arbitration in relation to the dispute may be started or continued despite the mediation, unless the parties agree or a Court orders otherwise. If settlement terms cannot be agreed through mediation, the parties can revert to litigation or arbitration.
- Referral to mediation
Referral of a dispute to a mediator or to the mediation Centre of the Chamber of Commerce and Industry of the Republic of Moldova (“the Centre”) for mediation may be as a result of:
- Voluntary referral by all parties
- Responding to a Court Order or a recommendation by a judge before trial or appeal (as under the National Court-Annexed Mediation programme)
- Referral by one party who asks the Centre to secure the involvement of other parties into a mediation
- Responding to a recommendation by a public authority
- The provisions of an Alternative Dispute Resolution (“ADR”) clause in a contract requiring the use of mediation as a step in the parties’ agreed dispute resolution process.
Parties referring a case to the Centre should include a copy of any document or agreement relevant to any of the above.
- Choosing the mediator
The parties may choose their own mediator directly or from the Centre’s panel of mediators, or may ask the Centre to nominate one, or to recommend names from whom they can choose one to act as the mediator for a dispute in accordance with the wishes of the parties or under the provisions of any relevant Court Order. Where there is a contractual or court requirement for the parties to act under the agency of the Centre, the Centre will appoint a mediator where the parties fail to agree on a name within 14 days of notice of the dispute. The Mediation Centre will suggest the name of a mediator to be appointed to the parties’ case who is available on the day scheduled for the mediation. If either party object to the named mediator then the Mediation Centre will suggest another mediator.
Where the Centre is administering a mediation under the National Court-Annexed Mediation Service,
The Centre will suggest to the parties the name of a mediator to be appointed to their case who is available on the day scheduled for the mediation. If either party object to the named mediator then the Mediation Centre will suggest another mediator.
Any nominated mediator will be required to confirm immediately to the Centre if there is any conflict of interest or other matter which may prevent them from mediating. The Centre will notify the parties of any such matter immediately it is disclosed.
As part of the Centre’s role to act as a model for the development of professional mediation services, the parties may be asked by the Centre to approve the attendance of an observer mediator at the mediation and who shall also be bound by the terms of the mediation agreement. The identity of any observer mediator will be made known in advance of the mediation to the parties, who are free to object to the attendance of any observer mediator.
In appropriate cases the Centre may recommend, or the parties may agree, to the use of co-mediators or the appointment of a neutral expert to advise the mediator on technical matters.
- Preparation for the mediation
The Centre or the mediator, when agreed or appointed, will make the necessary arrangements for the mediation as required or agreed by the parties including:
- Drafting the mediation agreement, submitting it for approval by the parties and preparing the final form for signature and incorporating any agreed amendments if requested
- Compiling names and roles of attendees for the circulation of a participants’ form before the mediation takes place
- Facilitating agreement as to the date, start time and providing venue arrangements for the mediation when necessary
- Organising the exchange of case summaries and document bundles between the parties and the mediator when requested
- Setting up any pre-mediation meetings agreed by the parties and the mediator if requested.
The parties will:
- Agree the terms of the mediation agreement;
- Agree the appointment of the mediator or a process to select or appoint the mediator;
- Agree with the Centre the date, venue and start time for the mediation
- Pay the Centre’s fees and expenses as agreed under the Centre’s Fees, Terms and Conditions of business
- Each prepare and exchange a case summary for the mediation in respect of their approach to the dispute at the mediation and endeavour to agree with all other parties what documents are needed for the mediation
- Send to the mediator directly, or where indicated, by the Centre, a copy of their case summary and a copy of the bundle of documents usually no less than one week before the date of the mediation, making clear whether case summaries have or have not yet been exchanged, whether or not and when the Centre or the mediator is to effect exchange, and whether all or any part of any documentation is intended to be confidential for the mediator only
- Notify the mediator and the Centre of the names and roles of all those attending the mediation on their behalf, so that the Centre can inform all parties and the mediator in advance of the mediation
- Ensure that a lead negotiator with full authority to settle the dispute attends the mediation to sign the mediation agreement
- Alternatively notify the mediator, the Centre and (unless very good reason exists to the contrary) the other parties of any limitation on authority to settle; for example board or committee ratification in which case the lead negotiator will need to have power to recommend acceptance of any settlement.
The mediator will:
- Report any conflict of interest or other relevant matter, if any, to the Centre and (subject to any question of confidentiality) to the parties immediately it emerges
- Attend any pre-mediation meetings on terms and agenda agreed by the parties, or proposed by the mediator
- Read each case summary and document bundle submitted in advance of the mediation by the parties
- Contact the representative of each party before the mediation to assist with the preparation for the mediation and discuss issues arising.
- Documentation
Any documents intended to be treated as confidential by the mediator or the Centre must be clearly marked as such and will not be circulated without express permission. As the success of mediation does not depend on the exhaustive disclosure of documents, the Centre and/or the mediator will encourage the parties to limit their documentation to case summaries and key supporting documents.
- The mediation agreement
The mediation agreement provides the essential legal basis for the mediation. Its signatories (the parties to the dispute, the mediator and the Centre) all agree by signing it that the mediation is to be conducted consistent with both this Model Procedure and the law relating to mediation. A draft mediation agreement will be sent for approval to the parties as part of the preparation process for the mediation and any proposed amendments can then be discussed and inserted if agreed.
The mediation agreement will normally be signed at the beginning of the mediation day on behalf of each party and the mediator, having been pre-signed on behalf of the Centre. Upon appointment of the mediator by the parties or by the Centre, any pre-mediation contact between the parties, the Centre’s staff and the mediator, will observe the mediation agreement’s confidentiality terms even though the agreement has not yet been signed.
- Time limits on mediation
The period for mediation to take place will not exceed 90 days from the date the parties sign the mediation agreement unless the parties agree otherwise. If the mediation is taking place within litigation under the National Court-Annexed Mediation Service, the period for mediation should not exceed 60 days but may be extended by 30 days. If mediation is not completed within 90 days then the Mediation Centre will notify the court and the matter will be sent back to the trial judge, unless the parties agree otherwise
- The mediation
It is usual for each party to have a private room for confidential consultations on their own and for discussions with the mediator during the mediation. There should also be a further room large enough for all parties to meet with the mediator jointly.
The mediator will chair and take responsibility for determining the procedure at the mediation, in consultation with the parties. The likely procedure will comprise:
- Preliminary meetings with each of the parties when they arrive at the venue
- A joint meeting of all attending the mediation, at which each of the parties will normally
- Be invited to make an oral presentation;
- A mix of further private meetings and joint meetings which may involve all or some of each party’s team) as proposed by the mediator and agreed by the parties.
No verbatim recording or transcript can be made of the mediation by the parties or the mediator in any form. However, mediation participants can make their own private notes which will not be disclosable in any subsequent litigation or arbitration.
It is important that the key people attending for each party remain present or at least available by telephone for the duration of the mediation. The Centre or the mediator should be notified of any time constraints as soon as they are known, as any unexpected departure may be detrimental to the progress of the mediation.
- Confidentiality in relation to the mediation
The Centre’s standard Model Mediation Agreement provides that what happens at the mediation is to be treated as confidential by the parties, the mediator and the Centre, including the fact and terms of settlement. However, the fact that the mediation is to take place or has taken place is not normally made confidential, as either or both of the parties may wish to claim credit for agreeing to engage in the process or it may have been recommended by a court. The Model Mediation Agreement can be amended if the parties wish to keep confidential the fact that mediation is to take place or has taken place.
As the mediation is held under the auspices of the Centre, and the Centre is a party to the mediation agreement, the Centre is also bound to keep confidential information which the mediator may share with the Centre for the purposes of case reports or queries regarding professional conduct. Apart from where the parties agree in writing to consent to disclosure of what would normally be confidential, there may be rare circumstances where confidentiality of the mediation process cannot be preserved. This may include circumstances where:
- The mediator or any party or their representative is required by law to make disclosure
- The mediator reasonably considers that there is a serious risk of significant harm to the life or safety of any person if the information in question is not disclosed
- The mediator reasonably considers that there is a serious risk of being personally subject to criminal proceedings unless the information in question is disclosed.
- Conclusion of the mediation
The mediation may end either by:
- Settlement of the dispute in whole or part, when the terms of settlement are written down and signed by the parties
- The mediator concluding that a settlement cannot be reached
- One or more parties withdrawing from the mediation
- The expiry of the deadline for mediation and the parties not having requested its extension
- By withdrawal of the mediator in respect of any conflict of interest which becomes apparent or any other matter affecting the impartiality of the mediator
- The death of the person who is a party to the mediation or the liquidation of a party if it is a legal entity.
- Complaints
Mediators on the Centre’s panel of mediators must comply with the Centre’s Code of Conduct for Mediators which conforms to the principles of mediator practice and conduct set out in the Mediation Law Nr.137. Any complaints regarding the conduct of a mediator should be made to the Mediation Council who shall determine the procedure for investigation of the complaint.
Any complaints regarding the Centre’s administration of any mediation should be made directly to the Centre.