SECTION I. MEDIATION
Application of the Rules
1. These Rules apply to mediation of disputes arising out of or relating to a contractual or other legal relationship where the parties seeking an amicable settlement of their dispute have agreed that the Mexico City National Chamber of Commerce Mediation Rules apply.
2. The parties may agree to exclude or vary any of these Rules at any time. 3. Where any of these Rules is in conflict with a provision of law from which the parties cannot derogate, that provision prevails.
Commencement of mediation proceedings
1. The party initiating mediation sends to the other party a written invitation to mediate under these Rules, briefly identifying the subject of the dispute.
2. Mediation proceedings commence when the other party accepts the invitation to mediate. If the acceptance is made orally, it is advisable that it be confirmed in writing.
3. If the other party rejects the invitation, there will be no mediation proceedings.
4. If the party initiating mediation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate. If he so elects, he informs the other party accordingly.
5. If arbitration is initiated, the notice of arbitration will have the same effect as the mediation notice described in paragraph 1 of this article. In this case, the mediation proceedings commence when the respondent party or parties receive the statement of claim.
Number of mediators
There shall be one mediator unless the parties agree that there shall be two or three mediators. Where there is more than one mediator, they ought, as a general rule, to act jointly.
Appointment of mediators
1. a) In mediation proceedings with one mediator, the parties shall endeavour to reach agreement on the name of a sole mediator;
b) In mediation proceedings with two mediators, each party appoints one mediator;
c) In mediation proceedings with three mediators, each party appoints one mediator. The parties shall endeavour to reach agreement on the name of the third mediator. If they do not reach an agreement, the mediators appointed by the parties shall appoint the third mediator.
2. Parties may enlist the assistance of the Commercial Mediation and Arbitration Commission of the Mexico City National Chamber of Commerce (the Commission) in connexion with the appointment of mediators. In particular,
a) A party may request the Commission to recommend the names of suitable individuals to act as mediator; or
b) The parties may agree that the appointment of one or more mediators be made directly by the Commission.
In recommending or appointing individuals to act as mediator, the Commission shall have regard to such considerations as are likely to secure the appointment of an independent and impartial mediator and, with respect to a sole or third mediator, shall take into account the advisability of appointing a mediator of a nationality other than the nationalities of the parties.
Submission of statements to mediator
1. The mediator,* upon his appointment, requests each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party sends a copy of his statement to the other party.
2. When the mediation is started by means of an arbitration statement of claim, the parties shall submit the mediator a copy of the statement of claim and of the statement of defence. These statements will be considered as the brief written statement referred to in the previous paragraph.
3. The mediator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate.
4. At any stage of the mediation proceedings the mediator may request a party to submit to him such additional information as he deems appropriate.
Representation and assistance
The parties may be represented or assisted by persons of their choice. The names and addresses of such persons are to be communicated in writing to the other party and to the mediator; such communication is to specify whether the appointment is made for purposes of representation or of assistance.
Role of mediator
1. The mediator assists the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.
2. The mediator will be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.
3. The mediator may conduct the mediation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the mediator hear oral statements, and the need for a speedy settlement of the dispute.
4. The mediator may, at any stage of the mediation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefore.
In order to facilitate the conduct of the mediation proceedings, the parties, or the mediator with the consent of the parties, may arrange for administrative assistance by the Commission.
Communication between mediator and parties
1. The mediator may invite the parties to meet with him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.
2. Unless the parties have agreed upon the place where meetings with the mediator are to be held, such place will be determined by the mediator, after consultation with the parties, having regard to the circumstances of the mediation proceedings.
Disclosure of information
When the mediator receives factual information concerning the dispute from a party, he discloses the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate. However, when a party gives any information to the mediator subject to a specific condition that it be kept confidential, the mediator does not disclose that information to the other party.
Co-operation of parties with mediator
The parties will in good faith co-operate with the mediator and, in particular, will endeavour to comply with requests by the mediator to submit written materials, provide evidence and attend meetings.
Suggestions by parties for settlement of dispute
Each party may, on his own initiative or at the invitation of the mediator, submit to the mediator suggestions for the settlement of the dispute.
1. When it appears to the mediator that there exist elements of a settlement which would be acceptable to the parties, he formulates the terms of a possible settlement and submits them to the parties for their observations. After receiving the observations of the parties, the mediator may reformulate the terms of a possible settlement in the light of such observations.
2. If the parties reach agreement on a settlement of the dispute, they draw up and sign a written settlement agreement. If requested by the parties, the mediator draws up, or assists the parties in drawing up, the settlement agreement.
3. Any litigation resulting from the settlement agreement, or related to it, shall be settled in accordance with these Rules, unless otherwise agreed by the parties.
4. If at the time of the signing of the settlement agreement the parties have initiated between them an arbitral proceeding, the mediator shall communicate the settlement agreement to the arbitral tribunal for the purpose of recording it in an arbitral award.
5. The parties by signing the settlement agreement put an end to the dispute and are bound by the agreement.
The mediator and the parties must keep confidential all matters relating to the mediation proceedings. Confidentiality extends also the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.
Termination of mediation proceedings
The mediation proceedings are terminated:
a) By the signing of the settlement agreement by the parties, on the date of the agreement; or
b) By a written declaration of the mediator, after consultation with the parties, to the effect that further efforts at mediation are no longer justified, on the date of the declaration; or
c) By a written declaration of the parties addressed to the mediator to the effect that the mediation proceedings are terminated, on the date of the declaration; or
d) By a written declaration of a party to the other party and the mediator, if appointed, to the effect that the mediation proceedings are terminated, on the date of the declaration.
Resort to arbitral or judicial proceedings
The parties undertake not to initiate, during the mediation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject of the mediation proceedings, except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.
When the mediation proceedings take place during the initial stage of arbitral proceedings, the arbitral proceedings related to the formation of the arbitral panel and the jurisdiction thereof, shall not be suspended.
1. Upon termination of the mediation proceedings, the mediator fixes the costs of the mediation and gives written notice thereof to the parties. The term "costs" includes only:
a) The fee of the mediator which shall be reasonable in amount, except when mediation results from a dispute concerning a payment transaction;
b) The travel and other expenses of the mediator;
c) The travel and other expenses of witnesses requested by the mediator with the consent of the parties;
d) The cost of any expert advice requested by the mediator with the consent of the parties;
e) The cost of any assistance provided pursuant to articles 4, paragraph 2 b), and 8 of these Rules.
2. The costs, as defined above, are borne equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party are borne by that party.
1. The mediator, upon his appointment, may request each party to deposit an equal amount as an advance for the costs referred to in article 17, paragraph 1 which he expects will be incurred.
2. During the course of the mediation proceedings the mediator may request supplementary deposits in an equal amount from each party.
3. If the required deposits under paragraphs 1 and 2 of this article are not paid in full by both parties within thirty days, the mediator may suspend the proceedings or may make a written declaration of termination to the parties, effective on the date of that declaration.
4. Upon termination of the mediation proceedings, the mediator renders an accounting to the parties of the deposits received and returns any unexpended balance to the parties.
Administrative expenses and mediators fees
1. The Commission shall be entitled to charge $5,000 Mexican Pesos** for the administration of the mediation proceedings. Nevertheless, in special cases, the Commission may set a different amount, according to the general characteristics of the mediation proceedings.
2. In determining the mediatorís fees, the mediator shall call the parties to a preliminary meeting to set cost guidelines.
Role of mediator in other proceedings
The parties and the mediator undertake that the mediator will not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceedings in respect of a dispute that is the subject of the mediation proceedings. The parties also undertake that they will not present the mediator as a witness in any such proceedings.
Admissibility of evidence in other proceedings
The parties undertake not to rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the mediation proceedings;
a) Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
b) Admissions made by the other party in the course of the mediation proceedings;
c) Proposals made by the mediator;
d) The fact that the other party had indicated his willingness to accept a proposal for settlement made by the mediator.
The mediator, the Commission and its representatives, shall not be liable to any party or representative, for any act or omission related directly or indirectly to the mediation proceedings, except for willful misconduct, serious error, inexcusable negligence or a confidentiality violation foreseen in these Rules.
* In this and all following articles, the term "mediator" applies to a sole mediator, two or three mediators, as the case may be.
** This amount does not include the Value Added Tax.