Text in force as from the 1st of January 2018.
The numbers of the legal provisions referred to in these Rules, are the provisions in force when the Rules were approved.
STANDARD MEDIATION CLAUSE
“The Parties hereby undertake to apply the CEPANI Mediation Rules to all disputes arising out of or in connection with this agreement.”
The following provisions may be added to this clause:
“The place of the mediation shall be [ ]”.
The proceedings shall be conducted in the [ ] language”.
“Should the mediation fail, the dispute shall be finally settled under the CEPANI Rules of Arbitration by one or more Arbitrators appointed in accordance with the said Rules. The place of the arbitration shall be [ ], the arbitration shall be conducted in the [ ] language”.
These Rules shall apply if one or more Parties wish to settle their dispute through mediation organized by CEPANI. It is not required that the Parties have concluded a mediation agreement prior to the dispute nor that a mediation clause be inserted in an agreement between Parties concerning which the dispute has arisen.
These Rules shall also apply to disputes arising out of contracts referring to CEPANI’s Mediation Rules for Information and Communications Technology, which are abrogated and replaced by these Rules.
Mediation is an alternative dispute resolution method whereby Parties Request a Third Person (the Mediator) to assist them in their attempt to reach an amicable settlement of their dispute arising out of, or relating to, a contractual or other legal relationship of whatsoever nature.
When the nature of the dispute requires complementary specializations (e.g. legal and technical), several Mediators may be appointed. In this case, the word ”Mediator” shall be read as Mediators.
When more than two Parties are involved in the dispute, the word “Requesting Party”, or “other Party” shall be read and understood as involving several Parties.
Article 1. Unilateral or joint Request for mediation
1.1 A Party wishing to have recourse to mediation under the CEPANI Rules shall submit its Request for Mediation to the Secretariat, in person or via its authorized Representative or Counsel. The Request must be submitted in electronic form and in one hard copy and must be signed in both cases by the Party wishing to have recourse to mediation or by its authorized Representative or Counsel.
Upon receipt of the Request, CEPANI shall send a copy of the Request by e-mail to the other Party or Parties involved.
If no valid e-mail address is known for the other Party(ies) involved, the unilateral Request submitted shall be supplied in a number of original and signed copies sufficient to provide one copy for the other Party(ies) and one copy for the Secretariat.
1.2 The Request for Mediation may also be submitted jointly by all Parties involved in the dispute.
The Request and the documents annexed thereto must be submitted in electronic form and in one hard copy. In both cases, it must be signed by all Parties or by their authorized Representative or Counsel.
1.3 The Request shall contain, inter alia, the following information:
- name, address, registered office, telephone and fax number, valid e-mail address, and company registration number, if any, of the Requesting Party and the identity of any Representative or Counsel having the capacity to act on behalf of the Requesting Party;
- a unique electronic communication method chosen for the exchange of all communications during the proceedings (including the name of the contact person and a valid e-mail adress);
- in case of a unilateral Request for Mediation in accordance with Article 1.1 : the name of the other Parties, along with all the information the Requesting Party has for contacting the other Parties or their authorized Representatives or Counsel, such as a postal or valid e-mail address, telephone and fax numbers, company registration number and any information obtained from previous contacts;
- a brief recital of the dispute;
- the proof of payment of the registration costs as fixed under Article 4 of Schedule I.A of these Rules.
1.4 In the case of a unilateral Request for Mediation, as mentioned in Article 1.1 of these Rules, and if the Request contains a claim to a right, the Requesting Party who introduced the Request shall comply with the formalities set out in Article 1730 of the Belgian Judicial Code in order for the Request to suspend the limitation period and to have the effect of a formal notice.
In the case of a joint Request as mentioned in Article 1.2 of these Rules, the Parties accept that, if their joint Request contains a claim to a right, it shall suspend the limitation period of the claim related to the said right during one month and shall have the effect of a formal notice.
Article 2. Answer to the Request for Mediation
Within two weeks after the Request has been sent as mentioned in Article 1.1, the other Party shall inform the CEPANI Secretariat whether or not it wishes to participate in the mediation. This deadline may be extended with Parties’ consent.
If no positive answer is given within the said time limit, the Request for Mediation shall be deemed to have been rejected by the said other Party.
A disagreement on the conditions set out by the Requesting Party is also considered as a refusal to take part in the mediation, unless the Requesting Party accepts in writing the conditions proposed by the other Party or if both Parties inform CEPANI of the conditions they have both agreed on.
Article 3. Effect of the mediation agreement
When the Parties agree to resort to CEPANI for mediation, they thereby submit to these Rules, including the Schedules, in effect on the date of the receipt by the CEPANI Secretariat of the Request for Mediation.
Article 4. Appointment of the Mediator(s)
4.1 The CEPANI Appointments Committee or the President of CEPANI shall appoint a Mediator within two weeks following receipt of the positive response as mentioned in Article 2. In doing so, the Mediator(‘) s(‘) availability, qualifications and ability to carry out the mediation in accordance with these Rules shall be taken into account.
The Parties may also propose by mutual consent the name of a Mediator to the Appointments Committee or to the President of CEPANI
4.2 When it notifies the identity of the Mediator the CEPANI Secretariat shall also communicate simultaneously to the Parties:
- the administrative expenses of CEPANI;
- the amount of the advance for mediation costs;
- the conditions for the payment of these costs;
- the date and the place of the mediation.
4.3 Provided that the advance for mediation costs has been fully paid, the CEPANI Secretariat shall transmit the file to the Mediator as soon as the latter has been appointed.
4.4 When several Mediators are appointed, they will act as a body.
Article 5. Independence of the Mediator
The Mediator shall be independent. Prior to his/her appointment, the Mediator shall sign a statement of acceptance, availability and independence and shall undertake to comply with the Rules of Good Conduct set out in Schedule II.
The Mediator shall disclose in writing to the Secretariat any facts or circumstances which might be of such a nature so as to call into question his/her independence in the eyes of the Parties. The Secretariat shall provide such information to the Parties in writing and fix a time limit for the receipt of their comments.
The Mediator and/or the Parties shall immediately disclose to CEPANI any facts or circumstances which might be of such a nature as to call into question the Mediator’s independence and which may occur during the mediation. In such event, CEPANI may, if the Parties or one of them so Requests, replace the Mediator.
Article 6. Mediation Protocol
6.1 The Mediator is free to organize the mediation as he/she sees fit in accordance with these Rules.
Before starting the mediation, in accordance with Article 1731 of the Belgian Judicial Code, the Mediator shall sign a Mediation Protocol with the Parties which shall state inter alia:
- the scale of fees or the method of determining the fees of the Mediator;
- the way in which the mediation costs will be divided among the Parties and the amount of the advance foreseen to cover these costs, as determined in accordance with Article 12 of these Rules;
- the method(s) of communication, if any, agreed by the Parties and the Mediator.
An original copy of the Mediation Protocol, duly signed by the Mediator and by the Parties or their authorized Representative or Counsel, shall be transmitted to the CEPANI Secretariat.
Article 7. Powers of the Mediator
7.1 The Mediator shall ensure that the proceedings are properly conducted. He/She shall create a favourable climate in which Parties themselves can find a solution to their dispute.
7.2 The Mediator shall ensure that the Parties are always treated on a balanced basis.
7.3 If Parties agree during a mediation that it would be useful for the Mediator to be made aware of the documentary evidence or of certain documents, or if the Mediator himself/herself finds it useful, they will be communicated accompanied with a list of the documents. This communication must not necessarily be made to the other Party(ies).
7.4 The Mediator shall not have the power to impose a solution on the Parties.
7.5 If nothing else is foreseen before or during the mediation, the Mediator’s approach will mainly consist in facilitating the search for a settlement between the Parties. On Parties’ Request the Mediator may however, insofar he/she judges it appropriate and being exclusively guided by the effectiveness of the procedure, give an opinion and express views regarding the Parties’ positions, both from a legal and a factual point of view. This opinion shall not bind the Parties or the Mediator. The opinion shall be construed as exclusively designed to give the Parties an informed analysis provided by a neutral and independent Third Party with the aim of helping them to find a solution to their dispute.
7.6 In the context of, and for the benefits of, his/her mission, the Mediator may, with the consent of the Parties, hear third Parties if they accept to be heard or, when it appears useful in the search for a solution, consult an Expert in one or more specific fields with a view to aiding the Parties.
7.7 After having consulted the Parties, the Mediator may decide to hold meetings at any location that he/she considers appropriate.
Article 8. Replacement of the Mediator
8.1 In the event of the Mediator’s death, resignation, if there is a cause preventing him/her from fulfilling his/her duties, or upon Request of all Parties, the Mediator shall be replaced.
8.2 The Mediator shall also be replaced when the Appointments Committee or the President decides that the Mediator is prevented de jure or de facto from fulfilling his/her duties in accordance with these Rules or within the allotted time limits.
Article 9. Secrecy obligation of the Mediator, the Parties, their authorized Representatives and Counsel.
The Mediator, the Parties, their authorized Representatives and Counsel, as well as the Experts or third Parties that have been involved in the proceedings, have a duty of secrecy in accordance with Article 1728 of the Belgian Judicial Code.
Save with the approval of the Mediator and the Parties, the meetings held within the context of mediation are not open to persons not involved in the mediation. However, if all Parties agree, other Parties may participate in the mediation.
Parties shall appear in person, as the case may be via one or more Representatives, with or without Counsel. Their Representatives must have a good knowledge of the dispute and the necessary decision-making power to settle it.
Article 10. Confidentiality of communications
All communications between the Parties and/or the Mediator as from his/ her appointment or by the latter for the purposes of the mediation, are confidential. The Parties undertake to refrain from making any reference whatsoever to the mediation outside the context of the mediation.
Unless otherwise agreed by the Parties, this shall however not apply to the Mediation Protocol, or to the notification of the end of the mediation as mentioned in Article 11 herein, nor to any settlement reached by the Parties at the end of the mediation.
Pre-existing documents or documents obtained by a Party outside of the context of the mediation and which are communicated in the context and for the purposes of the mediation between the Parties, to the Mediator or by the Mediator to the Parties or to one of the Parties are not covered by this confidentiality rule. As the case may be, said documents may subsequently be used by the Parties for other purposes than the mediation, unless they were specifically communicated as confidential documents as part of the mediation.
However, unless otherwise agreed by all Parties to the mediation, the Parties undertake to refrain from in any way referring to the fact that the documents have been communicated as a part of the mediation.
Article 11. Settlement / Non-settlement and end of the mediation
Settlement / Non-settlement
11.1 Should the mediation lead to a settlement between the Parties, the agreement shall be set forth in writing, dated and signed by the Parties and, when Requested by the Parties, by the Mediator. This document shall set out the precise undertakings of each Party as well as the allocation of the mediation costs, if this differs from what was agreed in the Mediation Protocol.
The Mediator shall send an original copy of the settlement to CEPANI.
11.2 In the event that the mediation fails to produce a settlement, or if the Mediator considers that the mediation should not be pursued, he/she shall inform the CEPANI Secretariat and the Parties thereof.
End of the mediation
11.3 When an agreement is reached, the mediation shall end when a copy of the settlement, signed by the Parties and, if needed, by the Mediator, is sent to the CEPANI Secretariat. Parties may however agree, by so indicating in their settlement that the mediation will end only later, for example to allow the Mediator to remain in office until the settlement is carried out.
11.4 At any time, either Party may refuse to continue the mediation. If no agreement is reached, the Parties and the Mediator acknowledge the lack of agreement and the Mediator or one of the Parties notifies the CEPANI Secretariat that no settlement has been reached, with a copy of the said notification to the Parties.
11.5 In the event that the mediation fails, the Mediator shall not act as an arbitrator, Representative or Counsel of a Party in arbitral or judicial proceedings relating to the dispute which was the subject of mediation, unless otherwise agreed by the Parties.
Article 12. Mediation costs
12.1 The mediation costs shall include the fees and expenses of the Mediator, as well as the CEPANI administrative expenses and all costs related to the mediation as have been agreed by the Parties. The advance required to cover the mediation costs shall be paid to CEPANI prior to the appointment of the Mediator by the Appointments Committee or the President. The said advance shall be fixed by the Secretariat on the basis of the total value of the sum of the principal claims and counterclaims, in accordance with the scale of fees in force at the time of the commencement of the mediation.
12.2 Other costs and expenses relating to the mediation, such as the expenses incurred by a Party, are not included in the mediation costs and are borne by the said Party, unless otherwise agreed by Parties, such agreement to be in writing.
12.3 If CEPANI decides in the course of the mediation, after having consulted the Mediator, that the initial advance for mediation costs must be adjusted, the Parties shall be Requested to make a further advance payment.
Unless otherwise agreed by the Parties, the initial advance on mediation costs, as well as any additional advance(s) on mediation costs, shall be payable in equal shares by the Parties.
When a Request for an additional advance on mediation costs has not been complied with, and after consultation with the Mediator, the Secretariat may direct the Mediator to suspend his/her work until the advance is fully paid.
12.4 At the end of the mediation, the mediation costs are deducted from the advance on mediation costs received. The outstanding balance, if any, is reimbursed to the Parties, as may be agreed between them.
Article 13. Limitation of liability
For any act or omission in the course of a mediation, the Mediator, CEPANI and its members and personnel shall not incur any liability except in the case of fraud or gross negligence.
SCHEDULE I: Scale of Fees for Mediation
SCHEDULE II: Rules of Good Conduct
SCHEDULE III: Parties’ Costs
SCHEDULE IV: Belgian Judical Code provisions relating to mediation