1. Mediation Rules of Procedure
These Rules were prepared by Professor Tang Houzi and have been modified to include the Hong Kong Agreement to Mediate, which can be found attached to the Hong Kong Code of Conduct for Mediators.
SCOPE AND APPLICATION
Article 1These Rules apply to moot mediation of international, cross-border, foreign-related and domestic disputes.
Article 2These Rules are formulated for resolving disputes arising between parties with or without contractual relations by means of Mediation.
Article 3Mediation can be carried out if an agreement to mediate exists between the parties according to the applicable law. Where no mediation agreement exists between the parties, one party requests mediation and the other party does not refuse, it shall be deemed that a mediation agreement exists.
Notwithstanding the aforesaid, if the Arbitral Tribunal, before making an award, believes that there is still a chance of the parties reaching a successful concord, it may order that the matter be the subject of mediation.
Article 4When using these Rules, their provisions and stipulations can be varied if the parties are in unanimous agreement and the Director of the Competition also agrees; however, the variation may not violate the law.
Article 5In these Rules mediation means a dispute resolution process whereby an independent and impartial third party (the mediator) assists disputing parties to negotiate a resolution of their dispute. The Mediator will assist the Parties to attempt to resolve the dispute by helping them to:
(a) systematically isolate the issues in dispute;
Article 6The Mediator may meet with the Parties together or separately.
Article 7The Mediator will not:
(a) give legal or other professional advice to any Party; or
Article 8The Mediator shall conduct mediation independently and impartially in accordance with the stipulations of the contract (if any), these Rules, the Code of Conduct in Appendix 1, the applicable law and the principles of fairness and reasonableness.
Article 9Mediation can be conducted as a separate process or, if the parties agree, or if the Arbitral Tribunal directs, in combination with arbitration (conducted during arbitration proceedings or at their conclusion but before an award is made) or in combination with litigation (conducted during court proceedings).
Article 10One mediator shall be appointed for each mediation by the Director of the Moot (ie, to be allocated by roster prior to the moot taking place).
Article 11In mediation with one mediator, the parties shall endeavor to reach agreement on the name of a sole mediator. For the purposes of competition the sole mediator will be appointed in accordance with Article 10 of these rules.
Article 12Judges and mediator(s) are not subject to the limitation of nationality. Any qualified person of any nationality is entitled to be appointed as a judge or mediator.
Article 13When accepting an appointment, the mediator shall ensure that he/she fulfills his/her duties and discloses any circumstances that may affect his/her independence and impartiality in the specific case. The Parties will then decide whether the mediation will continue with that Mediator or with a new mediator appointed by the Parties.
Article 14If in the course of the mediation the Mediator becomes aware of any circumstances that might reasonably be considered to affect the Mediator?s capacity to act impartially, the Mediator must immediately inform the Parties of these circumstances. The Parties will then decide whether the mediation will continue with that Mediator or with a new mediator appointed by the Parties.
Article 15The mediator shall endeavour to finish the mediation within the time period allocated for the competition and enforced by the Judges of the mediation.
Article 16Commencement of Mediation Process
Article 17Mediation proceedings commences when the initiating party receives the other party's written reply expressing his acceptance of the mediation invitation. For the purposes of this competition a roster of times for mediation will be provided to teams by the Director of the competition.
Article 18Statement of Dispute
Article 19The parties must attend the mediation in person. They may be accompanied by their legal representatives. Of the students representing the particular team in the arbitration hearings, one will undertake the role of the client and the other will continue to act as legal counsel/attorney.
Article 20The Parties agree to cooperate in good faith with the Mediator and each other during the mediation.
AUTHORITY TO SETTLE AND REPRESENTATION AT THE MEDIATION SESSION
Article 21The Parties agree to attend the mediation with authority to settle within any range that can reasonably be anticipated.
Article 22At the mediation each Party may be accompanied by one or more persons, including legally qualified persons, to assist and advise them.
Article 23Any information disclosed to a Mediator in private is to be treated as confidential by the Mediator unless the Party making the disclosure states otherwise.
Article 24Every person involved in the mediation:
(a) will keep confidential all information arising out of or in connection with the mediation, including the fact and terms of any settlement, but not including the fact that the mediation is to take place or has taken place or where disclosure is required by law to implement or to enforce terms of settlement; and
(b) acknowledges that all such information passing between the Parties and the Mediator, however communicated, is agreed to be without prejudice to any Party?s legal position and may not be produced as evidence or disclosed to any judge, arbitrator or other decision-maker in any legal or other formal process, except where otherwise disclosable in law.
Article 25Where a Party privately discloses to the Mediator any information in confidence before, during or after the mediation, the Mediator will not disclose that information to any other Party or person without the consent of the Party disclosing it, unless required by law to make disclosure.
Article 26The Parties will not call the Mediator as a witness, nor require him to produce in evidence any records or notes relating to the mediation, in any litigation, arbitration or other formal process arising from or in connection with the Dispute and the mediation; nor will the Mediator act or agree to act as a witness, expert, arbitrator or consultant in any such process.
Article 27No verbatim recording or transcript of the mediation will be made in any form.
Termination of Mediation Proceedings
Article 28Mediation proceedings shall be terminated when one of the following circumstances arises:
Article 29(1)If the mediation results in an agreement, the parties shall sign a settlement agreement (including therein a dispute resolution clause to the effect that if one party does not comply with the settlement agreement, the other party may initiate a specified ADR process), and then the mediator(s) may draft the settlement agreement.
(2)No terms of settlement reached at the mediation will be legally binding until set out in writing and signed by or on behalf of each of the Parties.
Article 30The Mediator will not be liable to a Party for any act or omission by the Mediator in the performance or purported performance of the Mediator?s obligations under this agreement unless the act or omission is fraudulent.
Article 31Each party indemnifies the Mediator against all claims by that Party or anyone claiming under or through that Party, arising out of or in any way referable to any act or omission by the Mediator in the performance or purported performance of the Mediator?s obligations under this agreement, unless the act or omission is fraudulent.
Article 32No statements or comments, whether written or oral, made or used by the Parties or their representatives or the Mediator within the mediation shall be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this document may be pleaded as a bar to any such action.
Article 33The Parties will be responsible for the fees and expenses of the Mediator in accordance with the SCHEDULE at the end of these Rules.
Article 34Unless otherwise agreed by the Parties in writing, each Party agrees to share the mediation fees equally and also to bear its own legal and other costs and expenses or preparing for and attending the mediation (?each Party?s Legal Costs?? prior to the mediation. However, each Party further agrees that any court or tribunal may treat both the mediation fees and each Party?s legal costs as costs in the case in relation to any litigation or arbitration where that court or tribunal has power to assess or make orders as to costs, whether or not the mediation results in settlement of the Dispute.
Article 35Any contemplated or existing litigation or arbitration in relation to the Dispute may be started or continued despite the mediation, unless the Parties agree or a court orders otherwise.
Article 36This Agreement is governed by the law of The Hong Kong Special Administrative Region and the courts of The Hong Kong Special Administrative Region shall have exclusive jurisdiction to decide any matters arising out of or in connection with this Agreement and the mediation.
Appointment of Judges
Article 37In each competition session, two Judges shall be present to watch the performance and give marks for it. The Judges are to be appointed by the Director of the Moot.
Article 38In each competition session, one counsel and one client from each competing team shall be present. Each match is limited to 120 minutes, with 60 minutes for arbitration (strictly enforced) and 60 minutes for mediating of the dispute.? At the conclusion of the mediation competitors and anyone else present, will vacate the room while the judges complete score cards and assess the respective teams Representation Plans. Then judges will provide a few general comments to assist competitors.
A single break of 5 minutes may be taken by each team during each competition session. Caucus breaks of no more than 7 minutes each and 15 minutes total may be proposed by the mediator(s) as the mediator(s) consider necessary and appropriate.
The Director of the Moot may issue instructions to clarify or streamline this procedure if this is seen as necessary. If so, all competing teams will be advised.
These Mediation Rules of Procedure come into force as from 2010.
Mediator's Fees and Expenses
1. For all preparation: $ _____ (per hour)
2. For the mediation: $ _____ (per hour)
3. Room hire fees: $ _____
4. Allocation of costs
Party 1: _____ %
2. Arbitration Rules
Article 39The Arbitral Panel will consist of 3 tribunal members, comprising a student arbitrator/mediator from a team not competing in the particular match and two arbitrators appointed by the competition organizers. Only the marks of the two dispute resolution practitioners appointed by the competition organizers will count. However, the student arbitrator will be assessed on his role as arbitrator and, subsequently, mediator.
Article 40The duration of the arbitration will be 1 hour with each side allowed 30 minutes to be divided between its two speakers.
Article 41The applicable law for the dispute will be announced at the time of the release of the problem. In order to guide teams in early preparation for the 2011 competition, it is likely that (i) the Arbitration Law applicable to these proceedings will be the UNCITRAL Model Law as amended in 2006 (ii) the Arbitration Rules applicable will be those of the HKIAC, and, (iii) The substantive law will be decided under the UNIDROIT Principles.
Article 42For the arbitral proceedings, Teams will be required to submit two (2) memoranda, one for the Claimant and one for the Respondent. Each memorandum will be no more than 3,000 words in length. Memoranda should be double spaced on A4 sized paper and presented in Times font, 12 size. Footnotes will be part of the word count. The due date for these memoranda will be declared when the problem is released. Memoranda should be sent as an email attachment in Word format to the Director of the Moot, Dr. Vernon Nase at the following email address before midnight on the due date: email@example.com
The word limit of 3,000 words will be strictly enforced with penalties as follows:
Less than 100 words over-length = 5 penalty marks
These penalties apply to each memoranda received. That is, they apply to both Claimant and Respondent memoranda.
Cover sheet required
Each memoranda should have on its cover the team number and the side represented, ie, Claimant or Respondent. No indication of the name of the university should be found anywhere on each Memorandum. There is an automatic 20 point penalty for breach of this rule.
Opposing Team Memoranda
All teams will receive the memoranda of the teams they are scheduled to meet in the oral rounds one week prior to the competition, either by email or by posting the memoranda on the moot website.
No revision allowed
No memoranda may be revised for any purpose whatsoever once it has been submitted.
Scoring of the Memoranda
A panel selected by the Moot Director will score the memoranda on the basis of the quality of the analysis, the persuasiveness of the legal argument, thoroughness of the research and the clarity of the writing. The panel will take an unfavourable view of arguments which are based on facts not found in the problem or the clarifications and which are not logical or necessary extensions of the given facts. The panel will be supplied with copies of the Memoranda, which have on the cover sheet only the teams??individual moot numbers.
Venue of the Competition
The venue of the competition is City University of Hong Kong, Tat Chee Avenue, Kowloon Tong, Kowloon, Hong Kong S.A.R., China.
Oral Hearings will be conducted at City University or other designated venue during the dates of the competition.
A moot will only proceed if 2 representatives from both teams are present. If both speakers for a team are not present by 15 minutes after the published start time of the moot, when the other team is all present, then that other team shall be automatically awarded full round points and a ?win??and the absent team will score no round points. However in that event, any speakers present from either team may obtain raw scores if they elect to proceed with their argument before the arbitrators.
There is no restriction on the amount of coaching a team may receive in preparation for the oral hearings.
No team members, friends or relatives of a team are permitted to attend hearings involving other teams during the General Rounds of the competition. Scouting is not allowed. For the Knockout Rounds members of the teams already eliminated are permitted to attend as part of the audience, given that the venues provide sufficient room to accommodate them. Teams competing in the Knockout Rounds still cannot scout other teams competing in the Knockout Rounds. Violation of this rule will disqualify a team from participating beyond the general rounds or in the final.
Once the hearing has commenced, no assistance is to be given to the oralists by the other members of their team or any other person.
Videotaping of any moot is not permitted except for the grand final, except with the express permission of the Moot Director.
Once Memoranda have been submitted for consideration in the competition, copyright in those memoranda will vest in the School of Law, City University of Hong Kong.
Appendix 1: The Code of Conduct for Mediators
This code of conduct is the Draft Hong Kong Mediators??Code of Conduct. Its rules should be adhered to as far as is practicable in this competition. These rules are included for guidance purposes and may be modified where appropriate for the purposes of the competition. Consent to mediate by the parties shall be considered to be given for competition purposes.
1. The Mediator shall act fairly in dealing with the Parties to the mediation, have no personal interest in the terms of any Settlement Agreement, show no bias towards the Parties, be reasonably available as requested by the Parties, and be certain that the Parties have been informed about the mediation process.
2. Impartiality/Conflict of Interest
The Mediator shall maintain impartiality towards all Parties. The Mediator shall disclose to the Parties any affiliations/interests which the Mediator may have or had with any Party and in such situation obtain the prior written consent of all the Parties before proceeding with the mediation.
3. Informed Consent
(a) The Mediator shall explain to all Parties the nature of the mediation process, the procedures to be utilised and the role of the Mediator.
(b) The Mediator shall ensure the Parties sign an Agreement to Mediate prior to the substantive negotiations between the Parties. A sample Agreement to Mediate is attached.
(c) The Agreement(s) to Mediate shall include the responsibilities and obligations of the Mediator and the Parties.
(a) The Mediator shall keep confidential all information, arising out of or in connection with the mediation, unless compelled by law or public policy grounds.
(b) Any information disclosed in confidence to the Mediator by one of the Parties shall not be disclosed to the other Party without prior permission.
(c) Paragraphs 4(a) and 4(b) shall not apply in the event such information discloses an actual or potential threat to human life or safety.
5. Suspension or Termination of Mediation
The Mediator shall inform the Parties of their right to withdraw from the mediation. If the Mediator believes that a party is unable or unwilling to participate effectively in the mediation process, the Mediator can suspend or terminate the mediation.
The Mediator shall consider whether it is appropriate to be covered by professional indemnity insurance and if so, shall ensure that he is adequately covered.
7. Independent Advice and Information
In a mediation in which a Party is without legal representation or relevant expert opinion, the Mediator shall consider whether to encourage the Party to obtain legal advice or relevant expert opinion.
The Mediator has a duty to define and describe in writing the fees for the mediation. The Mediator shall not charge contingent fees or base the fees upon the outcome of the mediation.
The Mediator shall be competent and knowledgeable in the process of mediation. Relevant factors shall include training, specialist training and continuous education, having regard to the relevant standards and or accreditation scheme to which the Mediator is accredited. For example, in the event the mediation relates to separation/divorce, the Mediator shall have attained the relevant specialist training and the appropriate accreditation.
Before accepting an appointment, the Mediator must be satisfied that he/she has time available to ensure that the mediation can proceed in an expeditious manner.
11. Advertising/promotion of the Mediator's services
The Mediator may promote his/her practice, but shall do so in a professional, truthful and dignified manner.
Appendix 2: General Competition Rules and Information
Participants must register by submitting the Registration Form to Ms Rita Wong, School of Law, City University of Hong Kong (CityU) by registered mail on or before 30th March 2011. It is preferable that this can be done prior to the distribution of the problem on 25th March 2011.
Registration Fee and Team Size
When registering for participating in the International ADR Mooting Competition, each participating team shall pay a registration fee of HK$6,300. A team may be composed of THREE to SIX students and a coach.
Payment of the registration fee of HK$6,300 must be made. Bankdraft [original] / copy of remittance advice for the bank transfer / cheque [original] must be sent together with the Registration Form by registered mail by 30th March 2011.
Accommodation of Teams
Accommodation in the Student Residence of City University of Hong Kong (CityU) is available at a cost of HK$260 per night for a double room (equipped with two single beds). Our check-in date is 7th August 2011 (after 2:00 pm) and check-out date is 14th August 2011 (before 12:00 noon). Room booking is subject to a first-come-first-served basis. Reservations should be made by completing the Registration Form which should be submitted by 30th March 2011 (Please refer to the Registration Form - Accommodation part for details). Once confirmation is given, the payment will need to be settled (either by bankdraft or by cheque, in Hong Kong Dollars, payable to "City University of Hong Kong") and sent to? Ms Rita Wong, School of Law, City University of Hong Kong (CityU) by registered mail on or before 30th May 2011. For information of the Student Residence of CityU, please click here.
Team Contact Person
The Registration Form includes space for the name and email address of the Team Contact Person. The Team Contact Person can be the University Coach or a member of the team itself.
The Team Contact Person is expected to:
Communication between the team and the organizers through anyone other than the Team Contact Person is at the risk of the team.
Requests for interpretation of the rules may be addressed to the Moot Director. All interpretations as well as any waivers, consents or other decisions concerning the moot competition are in the sole discretion of the Moot Director. There is no right of appeal from the decisions of the Moot Director.
|Last updated: 15 November 2010|