ACDR Application of Rules
Whenever, by stipulation or in their contract, parties have provided for mediation or conciliation of existing or future disputes under the (ACDR) Mediation Rules, or have provided for mediation or conciliation of existing or future disputes under the auspices of the ACDR, without designating particular rules, the ACDR Mediation Rules shall be deemed the designated rules and the ACDR designated as the administrator of their mediation.
Mediation under these Rules is confidential, voluntary, non-binding and a private dispute resolution process in which a neutral person (the mediator) helps the parties to reach a negotiated settlement.
The parties by mutual consent may vary any part of these rules including conducting the mediation by electronic or telephonic or alternative technical means.
Initiation of Mediation
- Any party or parties to a dispute may initiate mediation with the ACDR by making a submission for mediation to the ACDR office via email, regular mail, web site submission or fax.
- Upon filing, the filing party shall notify all other parties of the submission. The filing party shall provide the following information to the ACDR and all other parties as applicable:
- A copy of the mediation provision of the parties’ contract or the parties’ stipulation to mediate;
- Detailed contact information of the parties and their representatives to the dispute including, if possible, the names, physical mail addresses, email addresses and telephone numbers of all parties to the dispute and representatives, if any, in the mediation;
- A brief statement of the nature of the dispute, the quantum in dispute (if any) and the relief requested;
- Any specific qualification the mediator should possess.
A party may request the ACDR to invite another party to participate in mediation by voluntary submission where there is no preexisting stipulation or contract calling for the ACDR Mediation Rules to apply. Upon receipt of a voluntary submission request, the ACDR will contact the other party or parties involved in the dispute and attempt to obtain an agreement to participate in the mediation with the ACDR as the designated administrator.
Response to Request for Mediation
A party or parties who receive a request for mediation shall notify any other party and the ACDR within 14 days after receipt of the request whether they refuse to mediate. Failure to object to mediation within 14 days shall be treated as consent.
Appointment of a Mediator
The parties shall notify the ACDR if they are able to agree on a mediator who is willing and able to serve. If the parties have not jointly notified the ACDR of their mutual choice of a mediator – profiles of which are included on the ACDR web site, or an alternative method of appointment, a mediator shall be appointed by:
- The ACDR sending each party a list of five mediators from the ACDR panel. The ACDR will consider the nationalities of the parties, the language in which the mediation will be conducted, the place of the mediation and any relevant substantive expertise;
- If the parties are unable to agree on a mutually acceptable mediator from the ACDR list, each party may strike up to two unacceptable names from the list, number the remaining names in order of preference and return the list to the ACDR. If the list is not returned to the ACDR within 10 business days, all mediators will be deemed acceptable and appointed at the ACDR’s discretion. If the list is returned, the ACDR will invite a mediator to serve from those mutually approved by the parties in order of mutual preference;
- If the parties fail to agree on any of the mediators listed, or if acceptable mediators are unable to serve, or if for any other reason the appointment cannot be made from the submitted list, the ACDR shall have the authority to make the appointment from among members of the Panel of Mediators without the submission of additional lists.
Conflicts of Interest and Replacement of a Mediator
ACDR Mediators must abide by the following procedure:
- To decline a mediation if the mediator cannot conduct it in an impartial manner; and
- Disclose, as soon as practicable, all actual and potential conflicts of interest both personal and financial that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality; and
- Complete the ACDR Conflicts of Interest Checklist; and
- The mediator shall commence the mediation as soon as possible after his appointment and shall use his best endeavors to conclude the mediation within 66 days of his appointment. His appointment shall not extend beyond a period of three months without the written consent of all parties.
Upon receiving disclosures and the ACDR Conflicts of Interest Checklist the parties may waive any actual or potential conflicts and proceed with the mediation. In the event the parties disagree as to whether to waive actual or potential conflicts, the mediator shall be replaced by the ACDR, preferably from the lists of acceptable mediators previously returned by the parties.
If any mediator shall become unwilling or unable to serve, the ACDR will appoint another mediator, unless the parties agree otherwise, in accordance with Article 4.
Any party may be represented by persons of the party’s choice – representation by counsel is not required. Parties other than natural persons are expected to have present throughout the mediation an officer, partner or other employee authorized to make decisions concerning the resolution of the dispute. The names and addresses of such persons shall be communicated in writing to all parties and to the ACDR.
Date, Time and Place of the Mediation
The mediator, in consultation with the parties, will fix the date and the time of each mediation session. The mediation will be held at an ACDR office or alternative suitable location convenient to the parties and mediator.
Duties and Responsibilities of the Mediator
- The mediator may conduct the mediation in such manner as he or she considers appropriate, taking into account the nature of the dispute, the wishes of the parties and time and financial interests. The mediator does not have the authority to impose a settlement on the parties, but, if requested, the mediator may make oral or written recommendations concerning a suggested resolution of the dispute;
- The mediator may communicate with the parties together or with a party separately, including private meetings and each party shall co-operate 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 conducted within the time stipulated;
- The parties are encouraged to exchange all documents pertinent to the relief requested. The mediator may request the exchange of memoranda on issues, including the underlying interests and the history of the parties’ negotiations;
- Information that a party wishes to keep confidential may be sent to the mediator, as necessary, in a separate communication with the mediator;
- In the event that a complete settlement of all or some issues in dispute is not achieved within the scheduled mediation conference(s), the mediator may continue to communicate with the parties, for a period of time, in an ongoing effort to facilitate a complete settlement. The mediator is not a legal representative of any party and no fiduciary duty to any party.
Duties and Responsibilities of the Parties
The parties shall ensure the appropriate representatives of each party, having authority to settle the dispute, attend the mediation conference.
Prior to and during the scheduled mediation conference(s) the parties and their representatives shall exercise their best efforts to prepare for and engage in a meaningful and productive mediation.
Mediation sessions are private and confidential. Persons other than the parties and their representative may attend only with the permission of the parties and with the consent of the mediator. Information obtained during the mediation shall be kept confidential.
Subject to applicable law or the parties’ agreement, all information, records, reports or other documents received by a mediator while serving in that capacity will be confidential. The mediator will not be compelled to divulge such records or to testify or give evidence in regard to the mediation in any adversary proceeding or judicial forum. The parties will maintain the confidentiality of the mediation and will not rely upon or introduce as evidence in any arbitral, judicial or other proceeding:
- Views expressed or suggestions or offers including settlement offers made by another party to the mediator in the course of the mediation proceedings;
- Admissions or concessions made by another party in the course of the mediation proceedings;
- Willingness of a party to accept or decline a proposal for settlement.
No Stenographic Record
There shall be no stenographic record of the mediation process unless the parties agree otherwise.
Conclusion of Mediation
The mediation shall be terminated:
- By a duly executed settlement agreement; or
- By a written or verbal declaration of the mediator or all parties to the effect that further efforts at mediation would not contribute to a resolution of the parties’ dispute; or
- By a party withdrawal from the mediation.
Exclusion of Liability
Neither the ACDR nor any mediator is a necessary party in judicial proceedings relating to the mediation. Neither the ACDR nor any mediator shall be liable to any party for any error, act or omission in connection with or arising out of or relating in any way to any mediation conducted under these rules, except for the consequences of fraud or dishonesty.
Interpretation of Application of Rules
Interpretation of these Rules shall be left to the mediator in accordance with his or her duties and responsibilities.
Unless otherwise directed, the ACDR requires all parties deposit in advance of the mediation conference such sums of money as it, in consultation with the mediator, deems necessary to cover the costs and expenses of the parties and return any unexpended balance at the conclusion of the mediation. Absent necessary deposits, the ACDR reserves the right to postpone the mediation until necessary deposits are accounted for. The ACDR will not inform the mediator which parties have made their necessary deposits.
All expenses of the mediation, regardless of the outcome of the mediation and including the mediator’s fee, required travelling and other expenses or charges of the mediator, shall be borne equally among the parties unless otherwise agreed. The expenses of participants for either side shall be paid by the party requesting the attendance of such participants.
The parties shall be liable to pay the mediator such costs and the mediator may require the parties to make additional deposits at any time during the proceeding to cover costs.
Costs of the Mediation
All expenses are generally borne equally by the parties. The parties may adjust this arrangement by agreement.
Before commencement of the mediation, the ACDR shall estimate the anticipated total expenses.
Each party shall pay its portion of that amount as per the agreed upon arrangement. When the mediation is terminated, the ACDR shall render an accounting and return any unexpended balance to the parties.
If the parties have not agreed otherwise, the language of the mediation shall be that of the documents containing the mediation agreement.
Conference Room Rental
The costs included above do not include the use of the ACDR conference rooms which are available on a rental basis.
Role of Mediator in Other Proceedings
Absent a contrary agreement in writing, the mediator may not act as adjudicator, arbitrator or as a representative, counsel or expert witness in any arbitral or judicial proceeding relating to the dispute that was the subject of the mediation. A mediator may not be called by a party as a witness in any subsequent legal proceeding arising out of the same contract.
Arbitral or Judicial Proceedings
The parties undertake not to initiate, during the mediation, any arbitral or judicial proceedings in respect to a dispute that is the subject of the mediation, except that a party may initiate arbitral or judicial proceedings when, in its opinion, such proceedings either are necessary to preserve their rights to the claim.
Governing Law and Jurisdiction
The mediation shall be governed by, construed and take effect in accordance with the laws where the mediation takes place. The commercial courts of the nation where the mediation takes place have exclusive jurisdiction to settle an claim, dispute or matter of difference that may arise out of or in connection with the mediation.
Any settlement reached in mediation will not be legally binding unless it has been reduced to writing and is signed by, or on behalf of, the parties. The ACDR Settlement Agreement template provides prima facie evidence as to the validity of the settlement agreement for enforcement proceedings.
Suggested Mediation Clause
“Any dispute or controversy arising out of or in connection with this contract or breach thereof, and if the dispute cannot be settled through negotiation, shall be referred to the ACDR in accordance with the ACDR Mediation Rules. If the mediation is abandoned by the mediator or is otherwise concluded without the dispute or difference being resolved, then such dispute or controversy shall be submitted to the commercial court of Afghanistan, arbitration or some other dispute resolution procedure.”
The parties may wish to consider adding:
- “The place of the mediation shall be (Kabul and/or AFGHANISTAN); or
- “The language(s) of the mediation shall be PASHTO, DARI, ENGLISH;”
- “The mediator shall take no longer than XX days, unless agreed otherwise.”