Rules of Mediation Procedure
RULES ON MEDIATION
Article 1
The present rules on mediation shall apply whenever the parties in a legal matter over which the parties have full control have agreed for the mediation to be conducted in accordance with the Rules on Mediation of the Danish Institute of Arbitration.
Request for mediation
Article 2
A request for mediation shall be submitted to the Danish Institute of Arbitration by one of the parties or by the parties jointly.
Par. 2: The request for mediation shall contain the names, addresses, telephone, telefax and e-mail references of the mediation parties as well as a brief statement of the nature of the dispute.
Par. 3: The request for mediation must be accompanied by the payment of a registration charge of EUR 400 / DKK 3,000. The registration charge is non-refundable.
Par. 4: The Danish Institute of Arbitration shall immediately inform the parties of receipt of the request for mediation and the date of such receipt. Together with this communication the parties shall receive a copy of the Rules on Mediation of the Danish Institute of Arbitration.
Par. 5: Unless, within a period of 2 weeks of receipt of the communication stated in par. 4 above, the other party notifies the Danish Institute of Arbitration in writing that it accepts the request for mediation in accordance with the present rules, the Danish Institute of Arbitration shall refuse the request and inform the parties accordingly.
Appointment of mediator
Article 3
Unless otherwise agreed by the parties, the Danish Institute of Arbitration shall appoint a mediator. Unless otherwise agreed by the parties only one mediator shall be appointed.
Par. 2. The appointment shall have due regard to any qualifications required by the mediator in pursuance of the agreement between the parties and to such factors as will secure the appointment of an independent and impartial mediator.
Par. 3. Where not all parties to the dispute are domiciled in the same country, the person appointed mediator shall be domiciled in a country other than those in which the parties reside, unless otherwise agreed by the parties.
Par. 4: Before being appointed by the Danish Institute of Arbitration, the mediator shall sign a statement of independence and impartiality in which are stated any circumstances which, in the opinion of either party to the mediation case, may give rise to justifiable doubt as to the mediator’s impartiality or independence. The Danish Institute of Arbitration shall submit the statement to the parties stating a deadline for any comments.
Par. 5: A person appointed mediator shall immediately inform the Danish Institute of Arbitration of any circumstances that should have been included in the statement mentioned in par. 4 above had they existed at the time.
Par. 6: The chairmanship of the Danish Institute of Arbitration shall decide whether a person proposed as mediator shall be disqualified on the grounds of conflict of interest, or whether a person appointed mediator shall have to resign on those grounds.
Conduct of the mediation
Article 4
The mediator shall determine the manner in which the mediation shall be conducted in consultation with the parties, including the presentation of documents and oral statements by the parties, etc., and shall draw up a timetable for the mediation proceedings.
Par. 2: At any point in time the parties may decide to be assisted by legal counsel or another adviser of their choice.
Par. 3: Provided that the parties, the mediator and the involved third party all agree, non-party participants may contribute information or expert assessments. The expenses relating thereto shall be covered by the parties in pursuance of the provisions of article 10 below.
Par. 4: Endeavours shall be made to conclude the mediation within 60 days of the appointment of the mediator.
Role of the mediator
Article 5
Following consultation with the parties, the mediator shall decide the time and place of the mediation.
Par. 2: The mediator shall ensure that the parties are treated with equality and are given full opportunity to present their case.
Par. 3: The mediator shall be free to meet and communicate orally and in writing with the parties separately or jointly.
Par. 4: Information given to the mediator by a party shall remain confidential and shall not be disclosed to the other party without the express permission of the party giving the information.
Par. 5: The mediator shall not have the authority to make a decision in the dispute between the parties and shall not produce a draft settlement. The mediator shall act exclusively as a neutral and impartial facilitator in the mediation process who tries to identify the interests and needs of the parties and the problems they wish to resolve, thereby assisting the parties in reaching a solution of their dispute which they consider satisfactory.
Par. 6: The mediator shall not act as adviser to or representative of either party. The mediator shall not provide legal or technical advice or assistance to the parties jointly or separately.
Par. 7: The mediator shall not ensure that the parties reach a resolution of their dispute which complies with applicable legislation, including current commercial usage within an industry; nor shall he ensure that a resolution is in accordance with the possible outcome of the case in the form of an award or a ruling.
Confidentiality, etc.
Article 6
The mediator, the parties and the Danish Institute of Arbitration shall respect the confidentiality of the mediation in all respects, unless otherwise agreed by the parties. Confidentiality shall also be observed with regard to the solution of the dispute reached by the parties, unless disclosure is necessary for the purpose of implementing or enforcing the solution reached by the parties or for the purpose of complying with statutory provisions or other public regulations to which a party may be subject.
Par. 2: The parties commit themselves not to introduce as evidence in a dispute any material prepared by the other party or the mediator for the purpose of the mediation proceedings and not to use views expressed by the other party or the mediator in the course of the mediation proceedings.
Par. 3: The parties and the mediator commit themselves to respect that the mediator cannot act as arbitrator or in a similar capacity in a dispute that fully or partially concerns the dispute to which the mediation proceedings relate, except for the situation mentioned in article 8 below.
Par. 4: The parties commit themselves not to call the mediator as witness in a dispute that fully or partially concerns the dispute to which the mediation proceedings relate. The parties cannot demand access to the mediator’s notes, records and the like.
Termination of the mediation
Article 7
The mediation shall be deemed to be terminated when:
a) the parties agree that they have reached a solution of their dispute,
b) the mediator informs the parties that further efforts at mediation are futile or irresponsible, or
c) a party informs the mediator that the mediation proceedings are to be considered as terminated.
Article 8
If the parties reach a solution of the dispute and if they so agree, the Danish Institute of Arbitration may at the request of the parties and subject to the consent of the mediator appoint the latter arbitrator with a view to obtaining affirmation of the solution reached by the parties by the court of arbitration in the form of an arbitration award on agreed terms.
Legal steps, etc.
Article 9
During the mediation proceedings the parties commit themselves not to initiate an arbitration case, a lawsuit or take other legal steps in relation to the dispute subject to mediation unless, in the opinion of the initiating party, such legal steps are necessary in order to protect its rights. If a party intends to take legal steps in relation to the dispute subject to mediation, the mediator shall be notified thereof. The other party shall also be notified, unless the initiating party finds it essential to the protection of its rights that such legal steps be taken before the other party is informed thereof.
Deposit of financial security
Article 10
In addition to the registration charge mentioned above in article 2, par. 3, the parties shall pay a deposit as security for the estimated costs of the mediation proceedings, including the fee to the mediator and the fee to the Danish Institute of Arbitration.
Par. 2: The Danish Institute of Arbitration shall decide the amount of the security, and payment thereof shall be made within 2 weeks of the parties receiving notice of its size. Normally the two parties will be asked to pay identical amounts. Failure by a party to pay its share shall require the other party to pay the full amount in order for mediation to commence.
Par. 3: In the event that the costs estimated to accrue from the mediation proceedings prove to exceed the amount originally anticipated, the Danish Institute of Arbitration may demand that the amount be increased and that the additional amount be paid by the parties in pursuance of par. 2 above before mediation continues.
Par. 4: Failure to pay the security demanded by the Danish Institute of Arbitration before the deadline set may cause the Danish Institute of Arbitration to decide to terminate proceedings, however without prejudice to the possibility of submitting a request for mediation at a later stage. Having made that decision, the Danish Institute of Arbitration shall inform the parties that the proceedings have been terminated due to failure to pay the security, but that this shall not preclude the possibility of submitting a request for mediation at a later stage.
Costs
Article 11
Unless other agreed by the parties, the total costs of the case shall be borne by them in equal shares.
Par. 2: Upon the conclusion of the mediation proceedings the mediator shall submit a statement of the costs of mediation to the Danish Institute of Arbitration.
Par. 3. The Danish Institute of Arbitration shall decide the fee to the mediator on the basis of a reasoned proposal on the size of the fee from the mediator. The Danish Institute of Arbitration shall make the final statement of the total costs of the mediation, including the fee payable to the Danish Institute of Arbitration. The fee to the mediator and to the Danish Institute of Arbitration shall be fixed in accordance with the rates in force at the time the request for mediation was submitted.
Par. 4: Upon the conclusion of the mediation the Danish Institute of Arbitration shall forward the statement mentioned in par. 3 above to the parties. The parties shall be jointly and severally liable for the mediation costs.
Par. 5: Any excess amount of the deposit shall be repaid on the basis of the statement drawn up by the Danish Institute of Arbitration without addition of interest.
Liability
Article 12
The mediator, the Danish Institute of Arbitration, its Council, Board of Representatives and employees shall not be liable for any acts or omissions in connection with a request for mediation, the conduct of the mediation or the award drawn up by the mediator in pursuance of article 8 above.
Entry into force, etc.
Article 13
The present rules shall enter into force on 5 May 2006.
As adopted by the Council of the Danish Institute of Arbitration on 5 May 2006.