您现在的位置:  首页 > 调解与ADR > WHY SCIA Mediation Center

WHY SCIA Mediation Center


Why the SCIA Mediation Center?

For many years, SCIA (formerly named CIETAC South China Sub-Commission) has given support to parties to undergo mediation under the auspices of arbitration tribunals. Such method of dispute resolution which employs “a combination of arbitration with mediation” is referred to as “the oriental experience” in domestic and foreign arbitration and legal circles.

Stemming from such practice of mediating within arbitration proceedings and to meet the demands of the legal and commercial communities and the parties generally, pursuant to relevant laws and regulations, SCIA set up the SCIA Mediation Center (formerly named CIETAC South China Mediation Center, hereinafter referred to as “Mediation Center”) in December, 2008 to encourage parties to settle before or outside of arbitration proceedings, and through effective combination with  Arbitration, assist parties to resolve various types of domestic and foreign commercial disputes in a more harmonious, prompt, efficient and cost-effective manner.

 

What types of disputes may be referred to the Mediation Center for mediation?

All contractual or other proprietary rights disputes including infringement of rights arising between domestic and foreign citizens, corporates and other entities of equal status may be submitted to the MediationCenter for mediation.

 

How to bring about a prompt resolution of disputes for the parties while maintaining a relationship of cooperation?

As is different from litigation and arbitration, the MediationCenter’s mediation mechanism is premised primarily on the voluntariness of the parties. It seeks to minimize confrontation and resolve disputes amicably, for a win-win solution.

Very often, the parties share an experience of cooperation in commercial matters and their differences are not entirely irreconcilable. However, if left unresolved for a protracted period of time, the conflict gets deeper, legal proceedings or arbitration may be resorted and confrontation would become inevitable in that case, which may fundamentally damage the relationship of cooperation between the parties. If a conflict, upon its happening, can be submitted to an authoritative body and expert for mediation in a timely manner, it may effectively encourage the parties to negotiate and communicate in an harmonious manner, turning hostility into friendship.

SCIA MediationCenter, using the impartiality and authoritativeness of SCIA mediation as a premise, provides a new platform for dispute resolution for the parties based on harmonious communication and reasonable compromise. The mediator may meet with the parties and their representatives either separately or jointly in mediation. The mediator may request the parties to put forward written or oral suggestions or proposals and recommend to them solutions to resolve the dispute, based on the circumstances with which the mediator has come to grips and in accordance with fair and reasonable principles.

As regards contractual disputes, on intercession by the mediator, all of the parties clear up their misunderstandings, and make compromises voluntarily to reach settlement, conflicts are eliminated, loss to the two sides is avoided, and the continued performance of the contract by the parties is facilitated. As regards disputes of rights infringement, the disputes come to an end through mediation, so loss is minimized, rendering it even possible for the parties to establish a relationship of cooperation.

 

What if after a successful mediation, one party refuses to perform the settlement agreement?

While it is true that generally mediation cannot solve the problem of enforceability of the terms of settlement, parties can be carefree for such concerns at the MediationCenter. Under the SCIA Arbitration Rules and the Rules of the Mediation Center, with the “Combination of Mediation with Arbitration” dispute resolution mechanism, the parties may, upon a successful mediation, request SCIA to promptly render an arbitral award on the terms of the settlement agreement, enabling the results of the settlement to be enforceable in the 147 member-countries (including China) of the New York Convention. To a certain extent, this can be described as “One conclusive. Global validity”.

 

 

Is it fast to resolve disputes through mediation?

Resolving disputes in a prompt manner is a major feature of SCIAMediationCenter’s mediation mechanism. The mediation process prescribed in the Mediation Rules of the MediationCenter is flexible and simple. The parties may agree on a time limit for the mediation. In the absence of a specific agreement between the parties, the mediation shall conclude within a month. If the parties have the need to request SCIA to confer legal enforceability on the result of the mediation, SCIA will normally render a settlement award on the terms of the settlement agreement within a week.

 

Can the mediation process and result be kept confidential?

Confidentiality is a characteristic of SCIA arbitration, as well as a feature of mediation. Unless the parties otherwise agree, mediation at the MediationCenter is conducted in camera. The mediator, all of the parties and their representatives, the staff of the MediationCenter as well as any other persons that participate in the mediation process all bear a duty of confidentiality. In this way, the inside information of the disputes between the parties and their commercial secrets are fully protected, effectively safeguarding the commercial reputations of the parties.

 

What are the costs for resolving disputes through the Mediation Center?

The MediationCenter strives to assist the parties to resolve their commercial disputes in a cost-effective manner, helping the parties to substantially save costs in four major ways. Firstly, the scale for the mediation fees to be paid in advance is significantly lower than that for litigation or arbitration on the same dispute. Secondly, if mediation fails, only routine administrative expenses and the mediator’s remuneration as incurred are charged, the balance of the mediation fees paid in advance are refunded to the parties. Thirdly, if the mediation succeeds, since the settlement agreement is reached out of the parties’ own free will, so long as the parties are willing to perform, not only will arbitration or litigation costs be saved, but also the costs to apply for enforcement. Fourthly, if the parties request the making of an arbitral award on the terms of the settlement agreement, there will be a reduction on the arbitration fees.

 

Is it necessary to have prior agreement in order to apply for mediation?

Unlike arbitration, application for mediation may be made to the MediationCenter whether there is a prior agreement to mediate between the parties or otherwise.

 

How to make an application for mediation?

The procedures are very simple. Firstly, file an application for mediation and related documents. If the application is made by one party, the MediationCenter will consult the other parties regarding their willingness to mediate. Secondly, pay the mediation fees in advance. When all of the parties agree to mediate, the mediation fees shall be paid in advance in accordance with the payment notice. The mediation process will officially begin on the day the aforesaid procedures have been completed.

The mediation forms may be downloaded from www.scia.com.cn or get a copy by calling the MediationCenter.

 

How is the mediator appointed?

The MediationCenter selects experts in the legal or related fields in a strict manner to enlist into the “Panel of Mediators”, paying due attention to the mediators’ credibility, community spirit, professional standards, abilities to mediate and professional ethics, and implements a continuing mediator-training program to guarantee good professional standard and quality mediation service.

The “Panel of Mediators” sets out the expertise of the mediators, and from there the parties can jointly select a mediation expert they consider effective in resolving the dispute. Where no selection can be made jointly, the appointment is made by the MediationCenter.

 

Can the parties select a mediator that is not listed in the Panel of Mediators?

Yes. Under the Mediation Rules, the parties may also select together a mediator that is not listed in the Panel of Mediators, but the confirmation of the MediationCenter has to be obtained. There can be up to three mediators, as the parties may jointly agree.

 

Can the parties be represented by lawyers in the mediation?

With the necessary authorisation from a party, a lawyer may act as the appointed representative for such party to participate in the mediation and conclude settlement agreements. For disputes with complicated issues, the involvement of lawyers may facilitate settlement by the parties.

 

Can the parties directly refer a settlement agreement reached among them to SCIA for an arbitral award?

Yes. Under SCIA Arbitration Rules, the parties may, based on the arbitration agreement and settlement agreement reached among them, apply to SCIA to render an arbitral award on the terms of the settlement agreement. SCIA will, under the Arbitration Rules, appoint a sole arbitrator to examine the case according to the law and promptly render an award.

 

 

 





更多>>