MEDIATION RULES 2016
The President of the CAM-CCBC, in the exercise of the powers conferred upon him by article 2.6(d) of the CAM-CCBC Rules, approved on 01 August 2011, after hearing the Advisory Council of CAM-CCBC, approves the Code of Ethics and Conduct for Mediators in Procedures Managed by CAM-CCBC.
The President of the Center for Arbitration and Mediation of the Chamber of Commerce Brazil-Canada, hereinafter referred to as CAM-CCBC, in the exercise of the powers conferred upon him by article 2.6(d) of the CAM-CCBC Rules and motivated by the edition of a legal framework in Mediation, namely (i) Law No. 13,140 of 26 June 2015; and (ii) Law No. 13,105 of 16 March 2015, issues these Rules.
CHAPTER I – INITIAL ACTS
ARTICLE 1 – MEDIATION REQUEST
1.1. The person(s) interested in proposing Mediation may do so with or without the provision of a contractual clause, upon request in writing, addressed to the Secretariat of the CAM-CCBC, attaching the Registration Fee payment receipt, as per article 9.2 hereof..
1.1.1. In the event of participation of a direct or indirect entity from the Public Administration, these articles shall be adapted as necessary to meet legal requirements, subject to the approval of the President of the CAM-CCBC.
1.2. The President of the CAM-CCBC shall evaluate the admissibility of the Mediation request, admitting it or refusing it.
ARTICLE 2 – PRECEDING MEETING
2.1. Once the Mediation request is admitted, the Secretariat of the CAM-CCBC shall invite, within five (5) days, both the person(s) who proposed the mediation and the other possible participant(s) for preceding meetings.
2.1.1. The preceding meetings have an informative nature and do not constitute the beginning of the Mediation proceeding, which will take place only before the Mediator, pursuant to article 5.1 hereof.
2.2. The preceding meetings must be made, as a rule, separately for the person(s) who proposed Mediation and the other possible participant(s).
2.3. The preceding meetings must be conducted by the Executive Secretariat responsible for managing the Mediation proceeding of the CAM-CCBC.
2.4. After the preceding meetings, the Participants shall establish the value of the dispute and pay the fees to CCBC (opening and administration fees) and the Mediator’s fees, as set forth in article 9 hereof.
ARTICLE 3 – CHOOSING THE MEDIATOR
3.1. Once the preceding meetings are completed, the Secretariat of the CAM-CCBC shall present the CAM-CCBC the List of Mediators for participants to choose, jointly, the name of the professional who will carry out the proceeding.
3.2. If there is no consensus on the choice of the Mediator, each participant will be asked to submit a shortlist of five (5) names from the List of Mediators, within five (5) days, by order of preference.
3.3. If there is a name in common, this will be the Mediator who will carry out the proceeding.
3.4. If there is more than one name in common, the tiebreaker will be the sum of the preference order of each name on those lists.
3.5. If the criteria in articles 3.1 to 3.4 of these Rules are not sufficient to choose the Mediator, the President of the CAM-CCBC will choose one.
3.6. In exceptional circumstances and with the approval of the President of the CAM-CCBC, the participants may indicate a consensual name that is not on the List of Mediators.
3.7. The chosen Mediator will be invited by the Secretariat of the CAM-CCBC to confirm their acceptance by answering the questions from the CAM-CCBC Conflict of Interest and Availability Questionnaire (referred to as “Questionnaire”) within five (5) days.
3.8. The Questionnaire answered by the Mediator will be sent to the participants, who will have five (5) days to submit any comments, questions or objections.
3.9. Any issue in relation to the Mediator’s Questionnaire or the comments from the participants shall be decided by the President of the CAM-CCBC.
ARTICLE 4 – CO-MEDIATION
4.1. The Mediator can recommend and the participants can, jointly, request a Co-mediation.
4.2. Once the Co-mediation is accepted by all, the Co-mediator is appointed by the Mediator.
4.3. Any and all reference to Mediator in these Rules also applies to Co-mediator.
CHAPTER II – MEDIATION PROCEEDING
ARTICLE 5 – TERMS OF REFERENCETERMS OF REFERENCE
5.1. The Secretariat of the CAM-CCBC, after establishing a day, time and place, shall invite the participants to the first Mediation meeting in order to establish the proceeding, upon signing the Terms of Reference.
5.2. The Terms of Reference must contain:
(a) the identification of the participants and their representatives or lawyers, as appropriate;
(b) the identification of the Mediator;
(c) a brief indication of the matter that will be the subject of the Mediation;
(d) the place and the language of Mediation;
(e) the mediator’s fees and forms of payment; and
the start date, provisional timetable and the possible closing date of the Mediation.
5.3. The participants, through their representatives, where appropriate, as well as the Mediator, shall sign the Terms of Reference, in as many copies as necessary. One of these copies must be filed at the Secretariat of the CAM-CCBC.
5.4. Unless otherwise specified in the Terms of Reference or if agreed by the Parties in the course of the proceeding, the Mediation will be closed after a period of thirty (30) days as of the execution of the Terms of Reference.
ARTICLE 6 – MEDIATION MEETINGS
6.1. The Mediator, who will chair the meetings, and the participants, their representatives and lawyers (joint meetings) will participate in the mediation meetings held preferably at the CAM-CCBC facilities; the Mediator may also choose to conduct individual meetings, where only one of the parties and their representatives and lawyers are present.
CHAPTER III – TERMINATION OF THE MEDIATION PROCEEDING
ARTICLE 7 – AGREEMENT
7.1. If agreed, the participants will sign a Settlement Agreement, in as many copies as necessary, in compliance with the legal requirements, and file one of the copies at the Secretariat of the CAM-CCBC.
ARTICLE 8 – OTHER KINDS OF TERMINATION
8.1. The mediation proceeding will also be terminated:
(a) at any time, by written communication from the Mediator to the participants, or any of those participants to each other and the Mediator;
(b) after the period provided for in article 5.4.
8.2. In any of the cases of articles 7 and 8.1, the Mediator shall communicate the termination of the Mediation proceeding to the Secretariat of the CAM-CCBC.
8.3. With the termination of the Mediation proceeding, the Secretariat of the CAM-CCBC shall destroy all documents presented during the proceeding, unless the participants wish to retrieve them, in which case they shall bear the respective costs and shipping charges.
8.4. In any event, one copy of the Terms of Reference, one copy of the Settlement Agreement and one copy of the Closing Agreement, if any, will be digitally filed at the CAM-CCBC.
CHAPTER IV – MEDIATION EXPENSES
ARTICLE 9 – TABLE OF EXPENSES AND MEDIATORS’ FEES
9.1. The Table of Expenses and Mediators’ Fees (hereafter “Table”), which concerns the provisions of administrative fees, mediators’ fees and expense fund, is available at the CAM-CCBC website (www.ccbc.org.br).
9.2. At the time of submission of the Mediation request, the requesting participant must pay the CAM-CCBC the Registration Fee, non-refundable, in the amount provided in the Table.
9.3. The Mediation proceeding will only be commenced after the confirmation, by the Secretariat of the CAM-CCBC, of the payment of Registration, Administrative Fees and the expense fund, as well as the full deposit of the Mediator’s fees.
9.4. The CCBC may require in or out of judicial courts the reimbursement of expenses incurred, payment of Fees (Registration and Administrative) and/or Mediator’s fees, which will be considered net and certain values, and are likely to be charged through execution proceeding, plus interest and monetary restatement, when the anticipated and/or advanced values are not sufficient for the final conclusion of the accountability.
ARTICLE 10 – ACCOUNTABILITY
10.1. Once the Mediation proceeding ends, the Secretariat of the CAM-CCBC shall elaborate the final calculation, based on what is provided by the CCBC, and report to the participants the amounts paid, asking for supplementary funds, if any, or returning any remaining balance.
10.2. In the cases of articles 7 and 8.1 of these Rules, participants shall be reimbursed for any amounts anticipated and related to hours not worked by the Mediator, exceeding the minimum hours set out in the Table.
CHAPTER V – FINAL PROVISIONS
ARTICLE 11– FINAL PROVISIONS
11.1. Anyone who has acted as a Mediator will be prevented from acting as an arbitrator (and vice-versa) in the same dispute, in whole or in part.
11.2. Mediation proceedings are strictly confidential, except as otherwise provided by law or by express agreement of the participants.
11.3. The Mediator, any of the participants, their representatives, lawyers and other persons acting in the Mediation may not disclose to third parties or be called to reveal facts, proposals, documents and other information obtained during the Mediation proceeding, including in subsequent arbitration or judicial or extrajudicial proceeding.
11.4. All deadlines contained in these Rules are continuous and only working days will be considered and counted, excluding the day of receipt and including the due date.
11.4.1. The time limits start on the first working day following the summons, notice or other communication received by the Secretariat of the CAM-CCBC.
11.4.2. The due date is extended to the first following working day if it falls on a day when there are no office hours at the CAM-CCBC.
11.5. The Code of Ethics and Conduct for Mediators in Proceedings Managed by the CAM-CCBC (referred to as the “Code of Ethics and Conduct”) is part of these Rules for all legal purposes and shall support the interpretation of the provisions of these Rules.
11.5.1. The Code of Ethics and Conduct aims to guide the conduct of Mediators acting in the mediation, and aims also to guide the participants, representatives and lawyers, as well as CAM-CCBC’s representatives in dealing with the Mediator and each other.
11.6. It is up to the President of the CAM-CCBC to interpret and apply these Rules in specific cases, solving any gaps or omissions.
11.7. The Mediator, the Presidency and the Secretariat of the CAM-CCBC and CCBC are exempt from liability towards the participants and their representatives and lawyers by any act or omission in relation to a Mediation started, interrupted, suspended or concluded, in whole or in part, in accordance with these Rules.
11.8. These Rules revoke the previous ones and shall enter into force upon its issuance on 03 August 2016, being valid for Mediation proceedings started before CAM-CCBC from the issue date onwards.