THE REGULATION ON MEDIATION PROCEDURE WITHIN
THE MEDIATION CENTER OF THE CHAMBER OF COMMERCE AND INDUSTRY OF THE REPUBLIC OF MOLDOVA
Chapter I. General Provisions
Article 1. – Mediation
- This Regulation determines the order of conducting the mediation process by the Mediation Center of the Chamber of Commerce and Industry of Moldova (hereinafter – Mediation Center), with the participation of a mediator / mediators to settle disputes arising from legal domestic and international commercial and civil litigations, labor and administrative litigations.
- The organization and commencement of the mediation procedure by the Mediation Center shall be carried out in accordance with the provisions of the Law no.137-XX of 03.07.2015 on mediation (MO No. 224-233 of 21.08.2015), provisions of other laws in force of the Republic of Moldova, international acts to which the Republic of Moldova is a party and the present Regulation.
- Mediation is an effective way of resolving disputes in amicable manner, within a structured, flexible and confidential process with the assistance of one or more mediators. The parties can envisage the mediation clause in any contract. The validity of the mediation clause is independent of the validity of the contract in which it is included.
- Mediation relays on the confidence of the parties towards the mediator as a person able to facilitate negotiations between them and to assist in solving the conflict by obtaining a mutually acceptable, efficient and sustainable solution.
- The parties can resort to mediation voluntarily, even after starting a trial court or arbitration at any stage, agreeing to solve any conflict occurred between the parties.
- Mediation is based on the principles of free and equal access to this procedure, free consent, confidentiality and impartiality, independence, neutrality, free choice for the mediator and flexibility of the mediation process.
- The mediation procedure including externality element if the provisions of art. 26 of Law no. 137 of 03.07.2015 are met.
- Mediation within the Center may be subject to disputes concerning rights and obligations which are or may be subject to review by the court or arbitration and which the parties may freely dispose of through the transaction.
- If the Mediation Center was entrusted with organizing and commencement of mediation, by this fact, the parties accept the present Regulation. Similarly, the parties may agree to deviate from the provisions of this Regulation provided that the Center may decide not to administer the mediation procedure at its sole discretion if that diverge is not in accordance with the spirit of this Regulation.
- The Mediation Center is the only body authorized to administer the present procedure under the present Regulations.
Article 2. – Participants in the mediation process
- The parties to the mediation process are the parties to the litigation and the mediator. The Parties to the mediation process may be both natural and legal persons, including public authorities.
- Mediation can take place between two or more parties and can be done by one or more mediators.
- The Parties shall participate in the personal at the mediation process. If one of the parties, for grounded reason, cannot personally participate in the mediation process, it will empower a legal representative if the opposing party agrees to conduct the mediation with the participation of the mentioned representative. During the mediation process, the Parties can be assisted by lawyers, translators and / or interpreters, as well as by specialists in the field. With the consent of the Parties, others may participate in the mediation process.
- The mediator is not entitled to provide legal advice to the Parties regarding the mediation dispute.
- The rights and responsibilities of the Parties to the proceedings, the status of mediator, statute, rights, obligations and responsibilities are determined by Law no. 137 of 03.07.15 on mediation.
Chapter II. The Mediation procedure
Article 3. – The request for Mediation
(1)The Parties, wishing to settle the dispute, divergence or litigation between themselves (hereinafter referred to as “litigation”) with the participation of the mediator, shall address to the Mediation Center a joint request on initiating the mediation procedure.
(2) If only one of the Parties is present, the Mediation Center shall, at the other’ request, address to the other Party a written invitation on informing and accepting the mediation; setting a deadline of no more than 15 days if not provided another term in the mediation agreement. In litigation including externality element, this term consists up to 30 days. The invitation shall be transmitted by any means, which ensures the receipt of the invitation. The requesting party will provide the mediator with the necessary contact details for the other party.
(3) The Mediation of a litigation will take place within a period not exceeding three months from the date of conclusion of the mediation contract unless the parties have agreed otherwise.
(4) The mediation process starts on the date of signing the mediation contract.
(5) The request shall contain:
- the name of the Parties, their addresses, telephone numbers, fax, e-mail;
- name, surname, patronymic of empowered representatives, if any;
- a brief description of the litigation, including the appreciation of its value;
- name, surname, patronymic of the Mediator designated by the parties or their joint request to appoint the mediator, indicating the requirements for his / her qualification.
- The proof of the payment of the Mediation fee, as established by the Regulation on the Mediation Fee and other expenses of the Mediation procedure, which forms an integral part of the present Regulation, shall be attached to the request.
- If one of the Parties has proposed to initiate the Mediation procedure and the other Party has not submitted its consent within 15 days (in the case of international litigation – 30 days), the Mediation will not be accepted.
- If the Parties accept the Mediation, they will sign a Mediation contract in accordance with the provisions of art. 21 of the Law on mediation no.137 of 03.07.2015.
Art. 4. – Appointment of Mediator
(1) Unless the Parties have agreed otherwise, the mediation procedure shall take place with a single Mediator.
(2) Mediator is elected by the Parties from the List of Mediators of the Mediation Center (hereinafter – the List of Mediators) or, at the proposal of the parties, other persons who meet the requirements of the status of a Mediator can be elected, upon a mutual agreement. The Parties may agree upon appointment of Mediator by the Mediation Center.
(3) If within 15 days (in cases of the international litigation – 30 days) from the receipt of the request by the Mediation Center, the Parties have not reached an agreement on the mediator’s candidacy, he is appointed by the Director of the Mediation Center, taking into account the requirements of the Parties, if they are submitted.
(4) The provisions of the present Regulation providing the duties of the unipersonal mediator are also applied in cases of assigning two or more mediators. The distribution of the obligations between mediators is done upon the agreement between them, and if necessary may imply the participation of the Director of the Mediation Center.
(5) The elected or appointed mediator makes a commitment for neutrality, independence and impartiality, to respect confidentiality with respect to information that has become known under the mediation procedure.
(6) If the elected or appointed mediator, for some reason, cannot proceed to mediation or cannot continue the mediation procedure, the Director of the Mediation Center shall designate a new mediator, taking into account the requirements submitted by the Parties towards the mediator.
Article 5. – The preparation for the mediation procedure.
(1) The preparation for the mediation procedure shall take place with the participation of all Parties involved in the litigation. During the preparation, the order and methods / rules for settling the dispute shall be established, if the parties have reached an understanding in this respect.
(2) The preparation for the mediation procedure establishes the counseling between the Parties to the litigation and / or their representatives.
Article 6. – Consultations with the Parties
(1) Consultations with the Parties shall be carried out by the mediator in order to:
- clarify the circumstances of the litigation and position of the parties;
- determine the necessary acts, related to the litigation;
- pre-determine of conditions, requirements and claims of the Parties regarding commencement of the mediation procedure and its results;
- clarify the position of the Parties on time period required to carry out and terminate the mediation procedure, as well as setting of this deadline;
- determine the place and time period of commencement of the mediation procedure.
(2) After the consultations have been completed, the day of the mediation procedure is set in a way as to ensure the possibility for the persons who are parties to the litigation to participate.
Article 7. – The commencement of the mediation procedure.
- The mediation procedure shall be initiated only if the Parties have paid the mediation fee.
- The mediation procedure starts with verifying the empowerment of the Parties involved in settling the litigation.
- The mediator shall present himself/herself to the Parties, informing them about professional experience, procedural ground rules of conducting the mediation and its effects. The parties will be informed about the role of the mediator in the mediation procedure with a view to reaching the settlement agreement and the right of the Parties to waive at any time this procedure.
- The mediator is free in choosing the method of conducting the mediation procedure and organizes it, in order to reach the maximum effectiveness, after intimate conviction, in compliance with the requirements of the present Regulation.
- During the mediation procedure, the Parties expose the essence of the litigation and submit proposals for its settlement.
- If the mediator deems it necessary, he / she will discuss with each of the Parties separately. Information obtained during discussions with one party may be communicated to the other party only with the consent of the party providing it.
- The mediator allows the Parties to expose themselves and make proposals that, in their opinion, may lead to the settlement of the litigation.
- During the mediation procedure, the mediator identifies and reveals the interest and the intentions of each party.
- While respecting the principles of neutrality and equality of the parties, the mediator has the right, at the request of the parties, to submit his / her own proposals regarding the possibilities of settling the litigation and concluding the settlement agreement.
- The mediation procedure shall take place at the headquarters of the Mediation Center, unless the parties have agreed otherwise.
Article 8. – Suspension or termination of the mediation procedure
(1) The mediator suspends the mediation procedure in the following cases:
- when he / she deems it appropriate, especially when temporary difficulties arise in reaching a common denominator by the parties;
- in other cases, upon the request of one or both of the parties.
(2) The mediation procedure shall cease in the following cases:
- if, due to the inaction of at least one of the parties of the litigation, the mediation procedure is suspended and it is not resumed within 30 days or in another coordinated term;
- whether the continuation of the mediation procedure resumed after suspension will be recognized by the mediator or at least by one of the parties as being out of perspective or becomes impossible under some circumstances;
- if the deadline for settling the litigation expired and the parties did not agree on its extension;
- in case of death of one of the parties as a natural person or liquidation as a legal entity.
- in cases provided for by the Norms on fees and expenses in the mediation procedure.
(3) The mediation procedure shall also be considered terminated as from the moment of signing by the parties of the settlement agreement and / or the minutes on terminating the procedure under the conditions indicated in art. 23 of the Law no. 137 of 03.07.2015 on mediation.
Article 9. – The settlement agreement.
(1) The settlement agreement shall be prepared according to the provisions of art. 32 of the Law no.137 of 03.07.2015 on mediation.
(2) The parties’ agreement must be strictly determined by the conditions for settling the litigation and include the obligation of each party to voluntarily execute it, indicating the deadlines. The mediator, with the consent of the parties, shall assist in the preparation of the text of the Agreement.
(3) The parties’ agreement is concluded in writing form in four copies. Each copy is signed by the persons participating in the mediation procedure.
Art.10. – The costs of the mediation procedure
(1) Mediation costs may include the mediation fee and other additional costs necessary for mediating the dispute.
(2) The mediation expenses shall be established and paid according to the Regulation on mediation fee and other expenses of the mediation procedure approved by the Executive Bureau of the Chamber of Commerce and Industry of the Republic of Moldova, which is an integral part of the present Regulation.
(3) If the mediation fee and additional expenses are not due paid according to these Regulations, the request will be rejected.
Chapter III. Final provisions
Art.11. – Organizational issues
(1) The Chamber of Commerce and Industry of the Republic of Moldova will ensure the adequate space and material conditions for performing the activities of the Mediation Center in order to support the economic agents in the amicable settlement of arisen misunderstandings.
(2) The issues arising in the course of the activities, which are not directly related to the settlement of the litigation, are under the duties and responsibilities of the Director of the Mediation Center.
(3) The Director of the Mediation Center shall be assisted by a secretary of the Mediation Center in order to carry out the functions provided for in this Regulation and fulfill the instructions of the Director of the Mediation Center.
(4) The obligations of the Director of the Mediation Center, in his / her absence shall be placed on the Secretary of the Mediation Center.
Art.12. – Entry into force of this Regulation
(1) This Regulation shall enter into force on 1 November 2015.
Art.13. – Annexes