Mediation to take centre stage as the default ADR technique
Revised International Chamber of Commerce (ICC) rules on commercial mediation are to be introduced in the new year.
According to the ICC, the new rules, which come into force on 1 January, set mediation as the default alternative dispute resolution (ADR) technique, offer practitioners increased support from the body administering the rules, the ICC International Centre for ADR, and will help speed up complex cross-border disputes. They replace the ICC ADR Rules that have been used for dispute resolution worldwide since 2001.
The rules were revised by a taskforce of 90 specialists from 29 countries, and validated by the ICC’s Commission on Arbitration and ADR.
Chris Newmark, vice-chair of the ICC Commission on Arbitration and ADR, says the new rules have two important features: “First, the rules themselves offer simplicity by focusing on mediation rather than ADR more generally. Second, the guidance notes give practical guidance, enabling users and their advisers to see how ICC mediation proceedings can be organised and conducted so as to maximise the chances of a successful resolution of the parties’ dispute.”
Meanwhile, practitioners say commercial mediation is on the rise with London emerging as a global hub. Andy Rogers, communications director at CEDR, says: “As with litigation and arbitration, London has, fairly seamlessly, emerged as a global centre of mediation, and it is going from strength to strength.
“Lord Justice Briggs gave an interesting ruling on mediation in PGF II SA v OMFS Co 1 [2013] EWCA Civ 1288 [where it was held that silence in response to a bona fide request to mediate can of itself constitute unreasonable conduct]. It’s a very clear message, even more so than the Jackson reforms, and it’s going to be decisions like this that are going to be the driver for mediation becoming even more uniform than it is.
“I hope that wherever mediation aspires towards, it retains that element of flexibility and responsiveness that makes it so popular.”
Rogers says commercial mediation is “very common” among large multinationals, but less so in disputes between smaller businesses. That will be the next area for change following the PGF case, he added.
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