BIMS Mediation Rules

 

 

DISPUTE MEDIATION RULES, 2017

Preamble

Pursuant to the resolution adopted on 15th July, 2017 the Board of Directors of Bangladesh International Mediation Society (hereinafter BIMS), registered under the Societies Registration Act, 1860 (Act No. XXI of 1860) with the Registrar, Joint Stock Companies and Firms, Government of the People’s Republic of Bangladesh, for the purpose of effective mediation of disputes formulates these Rules.

1. Title
a) These Rules may be cited as the Dispute Mediation Rules, 2017.
b) It shall come into force with immediate effect.

2. Definition
(a) “Mediation” means to settle the dispute arising in between the parties, both national and international, following the guidelines framed by the national domestic laws namely Arbitration Act, 2001 and Rules framed thereunder, the international guidelines framed by the United Nations Commission On International Commercial Trade Law (UNCITRAL) 1985 with amendments as adopted in 2006 and the International Bar Association (IBA) Guidelines On Conflicts of International Arbitration as adopted on 23 October, 2014;
(b) “Mediator” means a person eligible to conduct mediation under these Rules;
(c) “Mediated Agreement” means any written agreement reflecting a consensus reached among the parties under these Rules as a result of mediation session;
(d) “Mediation Session” means a negotiation session arranged to assist the parties to identify the issues and the parties’ interests, structures, their discussions, facilities communication among them and provides them with the opportunity to resolve their dispute in a mutually agreeable way with a view to settling the action/ cause;
(e) “Society” means Bangladesh International Mediation Society (BIMS).

3. Application of the Rules
These Rules shall apply to the mediation of any present or future disputes where the parties seek consensual resolution and have agreed that these Rules shall apply. The parties may vary the Rules at any time in writing signed by the parties and notified to the mediator, subject to the right of the mediator to terminate the mediation under Rule 14.

4. Referral to mediation
(1) At any time after a dispute note is filed by a party, the mediator may refer the action for mediation, on giving notice to the parties or, where they are represented, to their counsel.
(2) On the written request of any party, the mediator may refer the action for a mediation session.
(3) Once introduced the request for mediation, the parties are required to participate in good faith.

5. Case Summary
(1) A party to a dispute shall file a case summary.
(2) The case summary shall be filed with the Secretary of BIMS at the time of filing pleadings.
(3) A case summary shall include the following-
(a) the names of the parties;
(b) the address of the parties including postal, fax, telephone and email addresses;
(c) the facts giving rise to the dispute and the defence to the facts;
(d) the name and address of the counsel of the parties, if any;
(e) the name of the person with full authority to sign a settlement;
(f) the name of the person who will be the lead negotiator for the party;
(g) the name of the proposed mediator, if any; and
(h) the documents that the parties inted to rely on at the mediation.
(4) The mediator shall ensure that all parties comply with the sub Rule (3).

6. Mediator
(1) The mediator is chosen, jointly by the parties. If after thirty days of the date of the written request for mediation, the parties could not agree on the person or designated agency shall, upon request of a party, the appointment of the mediator, shall be made within next fifteen days by BIMS.
(2) Mediation under these Rules may only be conducted by a person with the relevant qualifications and experience in mediation in the respective fields and chosen by the parties.
(3) Where a person is chosen as a mediator by the parties under this Rules, it shall be the responsibility of the parties to pay the fees of that mediator.
(4) A mediator must be impartial and shall act impartially.
(5) The mediator shall use his/ her reasonable best efforts to achieve an agreed outcome to the mediation as expeditiously as circumstances of the parties and the nature of the dispute will permit.

7. Role of the Mediator
(1) The mediator shall help the parties to seek a negotiated solution to their dispute. To this end, in particular, the mediator shall help the parties to communicate, negotiate, asses their positions and explore mutually satisfactory solutions.
(2) Mediation can not be used to determine which party is right but to be intended to find a satisfactory solution for both parties in compliance with the laws and regulations.
(3) The parties must contribute to a climate respectful and fruitful exchanges to promote the settlement of the dispute.
(4) The mediator shall not give legal advice or to represent any party. The parties should obtain their own advice concerning their situation ,the mediation process and any contemplated agreement.

8. Conduct of the Mediation
(1) The mediator will fix the measures to facilitate the conduct of mediation.
(2) The Mediator upon appointment shall hear the parties, if necessary separately or together instead of determination.
(3) The mediator shall be provided with all relevant information, including document requires for consideration of the dispute.

9. Confidentiality
The mediator and the parties shall be bound by strict confidentiality for all matters concerning mediation in particular, any findings, statement or proposition made before the mediator. The mediator shall not be called to testify in judicial or other proceedings. Upon appointment of the mediator, it and each parties agree in writing to respect the confidentiality obligations.

10. Scheduling of Mediation
(1) Where only one defendant is named in the dispute/ action, a mediation session may be scheduled after a dispute note is filed.
(2) Where two or more defendants are named, a mediation session may be scheduled within a period of 30 days of filing of the dispute

11. Attendance and representation
(1) All the parties receiving notice shall attend at a mediation session.
(2) If a party is incorporated, the entity must be represented by an individual who has knowledge of the facts and authority to resolve the dispute/ action.
(3) Counsel or an agent may attend with a party at a mediation session.
(4) Other persons may attend with the consent of all the parties and the mediator.

12. Disqualification and Replacement of Mediator
(1) No person may act as a mediator in a dispute in which that person has any financial or personal interest or any conflict of interests likely to affect or which might reasonably be perceived to affect the mediator’s independence or ability to act impartially at all times, save where the parties have been notified in writing of such circumstances and have subsequently expressly consented in writing to the appointment of the mediator.
(2) If, following appointment, a mediator becomes aware of any circumstances that may create a reasonable perception of bias, partiality or lack of neutrality, the mediator shall immediately so inform the parties and, where the mediator is appointed by BIMS, shall also immediately so inform BIMS. If any party objects to the continued services of the mediator, the mediator shall be disqualified.
(3) Within 10 days following the disqualification, another mediator who is willing to serve and is not disqualified under these Rules shall be appointed by all parties, failing which, within 10 days of being notified by a party, such failure, and without the need to consult the parties, BIMS shall appoint another mediator from its accredited mediators, being a mediator prepared to serve and not disqualified under these Rules.

13. Role of the Parties
Throughout the mediation the parties and their representatives shall use their reasonable best efforts to co-operate with each other and with the mediator to settle their differences and enable the mediation to proceed expeditiously.

14. Termination of Mediation
The mediation shall end:
(i) upon the signing by the parties of a written settlement agreement; or
(ii) upon the mediator, after consultation with the parties, informing them that in his/ her opinion further attempts at securing an agreed outcome through mediation are no longer appreciate; or
(iii) upon written notification by any party at any time to the mediator and each other party or by the mediator to each party that the mediation is terminated. No reasons need be stated in any such notice.

15. Exclusion of Liability
(1) Neither BIMS nor the mediator shall be liable to any party or to any other participant in the mediation for any act or omission in relation to or arising out of any mediation initiated under these Rules or any settlement of the dispute. This exception shall not exclude a person’s liability for that person’s fraud.
(2) No communication made during the course of mediation shall be relied upon to found or maintain any action or defamation, libel, slander or any other claim or complaint.

16. Costs
(1) Unless otherwise agreed or ordered by the mediator, each party shall bear its own costs of the mediation.
(2) Unless otherwise agreed or ordered by the mediator, each party shall bear equally the costs and expenses of the mediation including
(a) BIM’S administrative charges for appointing one or more mediators;
(b) the mediator’s fees and expenses;
(c) the costs of any meeting rooms, meals, translations, photocopies, internet access, communication systems, or other reasonable costs relating to the organization and conduct of the mediation;
(d) the fees and expenses of any independent witness, expert advice or opinion requested by the mediator with the consent of the parties; and
(e) any additional administrative costs relating to the mediation, as may be assessed by BIMS.
(3) The mediator may at any time during the mediation require the parties to make deposits with the mediator or BIMS to cover any anticipated fees or expenses and may suspend mediation until such deposit is made.