Mediation is a dynamic and confidential process where a skilled and impartial mediator actively facilitates communication between individuals or organizations to foster a negotiated resolution of a dispute. Throughout the mediation, both parties retain full control over the decision-making process and the terms of the settlement. Compared to traditional court proceedings, mediation proves to be a significantly more effective and cost-efficient method of resolving conflicts, offering a flexible and cooperative approach that encourages mutually agreeable outcomes.
To register a new case, please send your application to info@tccadr.org or click the form below.
If a dispute has arisen, but there is no agreement between the parties to mediate, or if the parties wish to amend a dispute resolution clause to provide for TCC mediation, the following clause is recommended:
Parties hereby agree that the dispute, controversy, difference or claim having arisen between the parties in relation to ________________(Brief description of contract under which disputes, controversies, differences or claims have arisen) shall be referred to and finally resolved by mediation administered by the TCC ADR Centre in accordance with the Mediation Rules of the TCC ADR Centre (“TCC Rules”) for the time being in force, which rules are deemed to be incorporated by reference into this clause.
The seat, or legal place, of mediation shall be [City and/or Country].
The number of mediators shall be [one/three].
The language of the proceedings shall be [ ].
The governing law of the contract [is/shall be] the substantive law of [ ].
Payment of fees and costs could be made by bank transfer at the following details:
Account | TCC ADR Centre |
Bank | Bank Al-Falah Limited, DHA Phase V Branch, Lahore, Pakistan |
Account number | 09601008103213 |
IBAN | PK96ALFH0960001008103213 |
Currency | PKR |
Note:
It is important to include the name of the payer and, if applicable, the case reference to the payment for its prompt and accurate crediting. A copy of the proof of payment should be provided, so that the respective transfer is located in the TCC’s accounts.
All payments must be free of any charges that may occur at the sending and/or receiving bank. TCC shall bear no responsibility with regards to any currency conversions that might be applied by the sending and/or the receiving bank or to any currency fluctuations, which might overall affect the payment of fees and costs.
TCC ADR CENTRE
MEDIATION RULES
MARCH 2023
TCC ADR Centre
7A Commercial Area XX Block, Phase III DHA
Lahore, Pakistan 54810
T: +92 325 224 2727
W: https://tccadr.org/
TCC ADR Centre aims to support the business community by
focusing on technology, construction and commercial disputes with efficiency,
fairness, and integrity. It is a not-for-profit organization registered under
Section 42 of the Companies Act 2017 of The Islamic Republic of Pakistan, that
promotes the use of ADR with accredited trained and qualified experts and
neutrals. It strives to provide a
transparent and accessible alternative to traditional litigation which can
foster a thriving investor climate and deliver excellence to businesses and
industries across the nation. While TCC ADR Centre has used its best efforts in
preparing this publication, it makes no representation or warranties with
respect to the accuracy or
completeness of its content and specifically disclaims any implied warranties
of merchantability or fitness
for a particular purpose. All rights are reserved. No part of this publication
may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior permission in writing of the TCC ADR
Centre. Enquiries concerning the reproduction outside
the scope of these
rules should be sent to the
TCC ADR Centre.
TABLE OF
CONTENTS
Article 1 — Scope of application.................................................................... 1
Article 2 — Initiating mediation: prior agreement....................................... 1
Article 3 — Initiating mediation: no prior agreement................................. 2
Article 4 — Mediator appointment................................................................. 3
Article 5 — Conflict
of interest........................................................................ 4
Article 6 — Confidentiality.............................................................................. 4
Article 7 — Conduct
of the mediation........................................................... 4
Articles 8 — Termination of the mediation................................................... 5
Articles 9 —
Costs............................................................................................. 5
Article 10 — Mediator’s role in subsequent proceedings............................ 6
Article 11 — Exclusion
of liability.................................................................. 6
Appendix I
Model mediation clauses for contracts........................................................... 7
Article 1 – Scope of application
1.1.
Where parties have agreed that any
disputes between them, whether contrac- tual
or not, shall be referred
to mediation under the TCC ADR Centre Mediation
Rules (‘The Rules’) then such disputes shall be mediated in accordance with
these Rules, or such amended rules as the TCC ADR Centre may have adopted
as of the date of filing a request for mediation, subject to such
modification as the parties may agree.
1.2.
These Rules shall come into force on 1 March 2023.
1.3.
The parties may at any time agree in
writing, as between them, to modify the provisions of the Rules.
Any agreement to modify the provisions made after a mediator is appointed shall be subject
to the approval of the mediator also in writing.
1.4.
All communications with and
applications to the TCC ADR Centre under these
Rules shall be in English. TCC ADR Centre may request from the parties a
translation of any document written in a language other than English, where
such a document is required for TCC ADR Centre to fulfill its mandate under
these Rules.
1.5.
In these Rules:
a)
mediation’ refers to the entire
process from the initiation of a mediation in accordance with Article 2 or 3 of
these Rules as appropriate until it is terminated in accordance with Article 9
of these Rules;
b)
The functions of the TCC ADR Centre shall be performed in its name by
the Chair of TCC ADR Centre;
c)
‘DAS’ means the ‘Dispute
Appointment Service’ of the TCC ADR
Centre;
d)
‘representative’ includes
any adviser or other authorized representative of a party;
e)
words used in the singular
shall be construed to include
the plural and
vice versa, as the context may require.
1.6.
For the purpose of calculating a
period of time under these Rules, such period shall begin to run on the day following the day when a notice is received. If the last day
of such period is an official holiday or non-business day at the residence or
place of business of the addressees, the period is extended until the first
business day that fol- lows. Official holidays
or non-business days occurring during the running
of the period of time are included in calculating the period.
Article 2 – Initiating mediation: prior agreement to mediate under
the Rules
2.1.
Where there is a prior agreement to mediate under these Rules,
any party may initiate mediation by communicating to all other parties to the dispute,
in writing
(which includes e-mail)
a request for mediation, containing:
a)
the date on which the request was communicated to the other parties;
b)
the names, addresses (including
e-mail addresses), and contact numbers (including telephone and facsimile) of
all parties to the dispute and any legal or other representatives involved, so
far as known to the requesting party;
c)
a brief description of the nature of
the dispute and, if possible, its esti- mated value;
d)
a name or names of mediators that
the party proposes be appointed;
and/ or
e)
a proposal for criteria required of
a prospective mediator, such as lan- guage skills, mediation experience or
subject-matter expertise; and
f)
a proposal for dates when the
parties and the mediator could meet, if a meeting is required.
g)
a copy of the prior agreement to
mediate.
2.2.
Within 21 days from the date on
which a request for mediation was received by all of the other parties, each
recipient shall respond to the requesting party in writ- ing, with a copy to
all other parties, stating whether they accept the request to mediate and
whether they accept any of the proposed name(s) or criteria suggested by the
re- questing party and making any additional suggestions the recipient may have regarding
name(s) or criteria for the appointment of a mediator.
2.3.
Mediation shall be deemed initiated
on the date when a written acceptance of the request to mediate has been
received by the requesting party from all of the other parties.
2.4.
In the event that some of the other
parties accept the request to initiate media- tion under these Rules within 21
days then mediation shall be deemed initiated be- tween them and the requesting
party from the date of the last acceptance.
2.5.
In the event that none of the other
parties accept the request to initiate media- tion under these Rules within 21
days from the date on which the
request was commu- nicated to them there shall be no mediation under these
Rules.
Article 3 – Initiating mediation: no prior agreement
to mediate under
the Rules
3.1.
Where there is no prior agreement
between the parties to refer a dispute to mediation under these Rules, any
party wishing to initiate mediation under these Rules may offer to do so by
communicating a written request inviting all other parties to re- ply within 21
days in writing (which includes e-mail) whether or not they accept the offer.
The written request shall contain the information specified in Article 2.1
(a)-(f).
3.2.
Mediation shall be deemed initiated
on the date when a written acceptance of the offer to mediate has been received
by the requesting party from all of the other par- ties.
3.3.
In
the event that some of the other parties accept the offer to initiate mediation under these Rules
within 21 days then mediation shall be deemed initiated between them and the
requesting party from the date of the last acceptance.
3.4.
In
the event that none of the other parties
accept the offer
to initiate mediation under these Rules within 21 days from the date on
which the offer was communicated to them there shall be no mediation under
these Rules.
Article 4 – Mediator Appointment
4.1.
Where all parties have agreed who they wish to appoint
as mediator they shall jointly appoint the mediator to
mediate the matters in dispute in accordance with these Rules.
4.2.
If,
within 28 days from the initiation of a mediation
the parties have not agreed upon who they wish to
appoint as mediator, any party may apply to TCC ADR Centre to propose
a list of potential mediators or to appoint
a mediator. The party
making the application shall complete the relevant application form available
on the TCC ADR Centre’s web-site and send it to DAS with a copy to the other
parties.
4.3.
The request to propose a list of
potential mediators or to appoint a mediator
by the TCC ADR Centre pursuant to these Rules shall be accompanied by payment
of the appropriate application fee specified on the TCC ADR Centre website. TCC
ADR Centre shall not proceed until the specified payment has been received. The
application fee is not refundable.
4.4.
On receipt of an application to
appoint a mediator, the TCC ADR Centre shall make the appointment as promptly as possible, but in any event within 10
days. In making the appointment the TCC ADR Centre shall have due regard to any
agreement in writing between the parties as to the criteria required of a
prospective mediator, such as language skills, mediation experience or
subject-matter expertise.
4.5.
Mediators are usually selected from
the TCC ADR Centre’s Panel of Media- tors. However, TCC ADR Centre may appoint
a mediator who is not on the TCC ADR
Centre’s Panel of Mediators if it considers, in its sole discretion, that it is appropriate to do so.
4.6.
A single mediator
will be appointed, unless otherwise
agreed by the parties.
Article 5 – Conflict of interest
5.1.
The
mediator shall inform the TCC ADR Centre and all parties
at the earliest possible
time, whether before or during the process,
of any perceived conflict of interest and shall withdraw unless the
parties explicitly consent to the mediator continuing.
5.2.
In the event that a mediator has to
be replaced during the course of the
media- tion, a substitute mediator shall be selected or appointed pursuant
to the procedure pro- vided
for in Article 4.
Article 6– Confidentiality
6.1.
Unless required by law or otherwise
agreed between the parties to the media- tion in writing:
a)
TCC
ADR Centre, including the Chair,
its employees, the parties, their
representatives, and the mediator shall keep confidential all
information, whether given orally, in writing or otherwise, produced for, or arising out of or in
connection with the mediation, in-cluding the
fact that the mediation is taking, or has taken, place;
b)
the existence and content of any
settlement agreement shall be kept confidential except to the extent that disclosure is necessary for its imple-mentation or enforcement.
6.2.
Unless permitted by the party, the
mediator shall keep all information given privately by that party confidential
from all other parties.
Article 7 – Conduct of the mediation
7.1.
The
mediator shall conduct
the mediation in such manner
as the mediator con- siders
appropriate, taking into account the circumstances of the case, the wishes of
the parties and the need to avoid unnecessary delays.
7.2.
Meetings may be held face to face, by telephone, by videoconference, or other
electronic means. The mediator may communicate with the parties
together or with any
party separately, with or without its representatives.
7.3.
A
party may be assisted by any person(s)
it chooses and must keep the media-
tor and each other party informed of the names, contact details and roles of
such per- sons and of any changes that may occur during the mediation.
7.4.
Each party will inform the mediator
and all other parties to the dispute who has the ultimate authority to settle
the dispute on their behalf.
7.5.
Throughout the mediation the parties
and their representatives shall act in good faith and shall use their best
efforts to co-operate with each other and with the mediator to resolve the
dispute and enable the mediation to proceed smoothly.
Article 8 – Termination of the mediation
8.1.
The mediation shall end:
a)
upon the signing
by the parties of a written settlement agreement; or
b)
upon the mediator, after
consultation with the parties, informing them that it is terminated as in the
mediator’s opinion further attempts at se- curing an agreed outcome
through mediation are no longer appropriate or practically achievable; or
c)
upon written notification by any
party that the mediation is terminated. No reasons need be stated in any such
notice.
Article 9 – Costs
9.1.
Unless otherwise agreed by the
parties, each party shall bear its
own costs and expenses of the mediation.
9.2.
Unless otherwise agreed by the parties, each party shall bear equally the costs and expenses of the mediation including but not
limited to:
a)
the TCC ADR Centre’s application fees, if applicable;
b)
the mediator’s fees and expenses;
c)
the costs of any meeting rooms,
meals and refreshments or other reason- able costs relating to the organisation
and conduct of the mediation;
d)
the fees and expenses of any
independent witness or expert who attends the mediation at the request of the
mediator and with the consent of the parties.
9.3.
The mediator may at any time during
the mediation require the parties to make
deposits to cover any anticipated fees or expenses related to the mediation and
may suspend the mediation until such deposit is paid. Any surplus funds
deposited shall be returned to the
parties in proportion to their payments at the conclusion of the mediation.
Article 10 – Mediator’s role in subsequent proceedings
10.1.
The mediator shall not be appointed
as representative, counsel or expert wit- ness for any party in any subsequent
adjudication, arbitration or judicial proceedings whether arising out of or in
connection with either the mediation or the subject matter of the mediation,
save as may be expressly agreed in writing by all the parties and the mediator.
No party shall be entitled to call
the mediator as a witness in any subsequent adjudication, arbitration or judicial proceedings arising
out of or in connection with the same matter.
10.2.
The
mediator shall not be appointed as an adjudicator or arbitrator in the same dispute or in any other dispute arising out of or in connection with the same matter, nor shall the mediator accept such additional appointment
unless, at the time of the addi- tional appointment, the parties expressly
waive in writing any objection arising out of the adjudicator or arbitrator
having previously acted as mediator between the parties under these Rules, and
the mediator consents to the appointment.
Article 11 – Exclusion of liability
11.1.
Save for intentional wrongdoing, the
parties waive, to the fullest extent per- mitted under the applicable law, any claim against the mediator, the TCC ADR Centre, including the Chair, and its
employees, and any person appointed by the mediator based on any act or
omission in connection with the mediation.
11.2.
No communication made during the
course of the mediation shall be relied upon to found or maintain any action
for defamation, libel, slander or any related com- plaint.
Appendix I: Model mediation
clauses for contracts
Any dispute, controversy, or claim arising
out of or in connection with
this contract, or the breach,
termination or validity thereof, shall be referred to mediation in accordance
with the TCC ADR Centre’s Mediation Rules. The initiation of the mediation will
not prevent the parties commencing or continuing arbitration, court proceedings
or any other form of dispute resolution.
Parties may consider the following additional provisions:
1. Language(s) of the mediation
The language(s)of the mediation shall be [choose
language(s]).
2. Place of mediation and applicable law
The place of the mediation
shall be [choose city and country]. The mediation shall be conducted in
accordance with mediation law of the place of the mediation.
Any dispute, controversy, or claim arising
out of or in connection with
this contract, or the breach,
termination or validity thereof, shall first be referred to mediation in
accordance with the TCC ADR Centres’ Mediation Rules.
Parties may consider the following additional provisions:
1. Language(s) of the mediation
The language(s)of the mediation shall be [choose
language(s]).
2. Place of mediation and applicable law
The place of the mediation
shall be [choose city and country]. The mediation shall be conducted in
accordance with mediation law of the place of the mediation.
3. Arbitration if mediation does not resolve
the dispute
If the dispute, controversy,
or claim or any part of it is not resolved by mediation within [insert number] days from the initiation of the
mediation, it shall be referred to the TCC ADR Centreand settled
by final and binding
arbitration in accordance with the TCC ADR Centre Arbitration Rules.
The arbitral
tribunal shall be composed of [one or three] arbitrator(s.)
The language(s)of the arbitration proceedings shall be [choose
language(s]).
The place of the arbitration
shall be [choose city and country]. The proceedings shall be conducted in
accordance with arbitration law of the place of the arbitration.
We, the undersigned parties,
hereby agree that the dispute concerning [insert a brief and accurate description of the dispute], shall, notwithstanding any other proceedings, be referred
to mediation in accordance with the TCC ADR Centres’ Mediation Rules.
Parties may consider the following additional provisions:
1. Language(s) of the mediation
The language(s)of the mediation shall be [choose
language(s)].
2. Place of mediation and applicable law to the
mediation
The place of the mediation
shall be [choose city and country]. The mediation shall be conducted in
accordance with mediation law of the place of the mediation.
We, the undersigned parties,
hereby agree that the dispute concerning [insert a brief and accurate description of the dispute], shall, notwithstanding any other proceedings, be referred
to mediation in accordance with the TCC ADR Centres’ Mediation Rules.
Parties may consider the following additional provisions:
1. Language(s) of the mediation
The language(s)of the mediation shall be [choose
language(s)].
2. Place of mediation and applicable law to the
mediation
The place of the mediation
shall be [choose city and country]. The mediation shall be conducted in
accordance with mediation law of the place of the mediation.
3. Arbitration if mediation does not resolve
the dispute
If the dispute, controversy,
or claim or any part of it is not resolved by mediation within [insert number] days from the initiation of the
mediation, it shall be referred to the TCC ADR Centre and settled by final and binding arbitration in accordance with the TCC ADR Centre Arbitration Rules.
The arbitral
tribunal shall be composed of [one or three] arbitrator(s.)
The language(s)of the arbitration proceedings shall be [choose
language(s]).
The place of the arbitration shall
be [choose city and country]. The proceedings shall be conducted in accordance
with arbitration law of the place of the arbitration.
The Practice and Standards Committee (PSC) keeps these
Rules under constant review. Any comments and suggestions for updates and
improvements can be sent by email to info@tccadr.org