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Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
Reglamento mediacioningles
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Reglamento mediacioningles

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  • 1. MEDIATION RULES Adapted to the Royal Decree Law 5/2012 of 5 March, on mediation in civil and commercial matters In force since 8 March 2012
  • 2. 2
  • 3. MEDIATION RULES INDEXRULES Article 1. Rules ..................................................................................... 4 Artículo 2: Article 2. Scope of application of the Rules ................... 4MEDIATION PROCEEDINGS Article 3. Request for Commencement ............................................. 5 Article 4. Commencement of the Mediation .................................... 5 Article 5. Notice to other parties ....................................................... 6 Article 6: Appointment of the mediator ............................................ 6 Article 7. Representation of the parties ............................................ 8 Article 8. Mediation proceedings. Principles .................................... 8 Article 9. Briefings. Commencement minutes .................................. 9 Article 10. Mediation proceedings ..................................................... 9 Article 11. Confidentiality ................................................................... 11 Article 12. Confidentiality of documents .......................................... 12 Article 13. Confidentiality of opinions, agreements and admissions ............................................................................................ 12 Article 14. Termination of the Mediation .......................................... 13 Article 15. Exclusive mediator ............................................................ 15 Article 16. Administration fee of the Mediation Service of AEADE 15 Article 17. Fees of the mediator ......................................................... 16 Article 18. Deposits ............................................................................. 16 Article 19. Costs ................................................................................... 17 Article 20. Liability ............................................................................... 17 Article 21. Suspension of prescriptions ............................................. 17SCALE OF CHARGES AND FEES Administration fee ............................................................................... 18 Mediator fees ....................................................................................... 19 3
  • 4. AEADEArticle 1. RulesFor the purposes of these Rules: - Mediation shall be construed to mean a way of settling disputes, regardless of their denomination, in which two or more parties attempt to voluntarily reach an agreement with the intervention of a mediator. - The term “Mediation Agreement” shall be construed to mean any agreement reached by the parties to submit to mediation all or certain disputes which have arisen or may arise between them. - A Mediation Agreement may take the form of a clause in a contract or a separate contract. - The term “mediator” includes a sole mediator or all mediators where more than one is appointed. - The terms “AEADE” or “the Association” shall be construed to mean the European Association of Arbitration. The term “Service” shall refer to the Mediation Service of AEADE. - Words used in the singular shall include the plural and vice versa, as the context may require.Article 2. Scope of application of the RulesWhen a Mediation Agreement provides for mediation under the AEADEMediation Rules, the present rules shall be considered part of thatagreement. Unless otherwise agreed by the parties, these Rules as ineffect on the date of the commencement of the mediation shall apply.Parties wishing to submit to mediation any dispute arising from a legalrelationship in contract or tort, either civil, mercantile, commercial or4
  • 5. MEDIATION RULESotherwise, both national and international, provided that the parties areentitled to decide on the subject matter of such dispute, may voluntarilysubmit themselves to such proceedings before AEADE in accordancewith the Rules herein.MEDIATION PROCEEDINGSArticle 3. Request for Commencement a) If one of the parties to a Mediation Agreement wishes to urge the commencement of the proceedings, such party shall submit a written request to the Mediation Service of AEADE. b) The natural or legal persons wishing to resort to mediation will file a joint or individual written request to the Secretariat of AEADE. The Request for Mediation shall include or be accompanied by i) name, address, e-mail, telephone, telex, fax or any other communication reference of the parties to the dispute and the representative of the party submitting the Request for Mediation; ii) where appropriate, the written agreement in which the parties undertake to submit any disputes to mediation, and iii) a brief description of the nature of the dispute. c) A Request for Mediation shall be considered a joint request when the parties are bound by a previous agreement to submit to mediation all or some of the disputes that have arisen or may arise between them regarding a specific contractual relationship or tort.The Request for Mediation shall be considered a joint request when,even in the absence of a prior agreement signed by the parties, all of 5
  • 6. AEADEthem declare to the AEADE’s secretariat their wish to submit themselvesto mediation to resolve their disputes.Article 4. Commencement of the MediationThe date of the commencement of the mediation shall be the date onwhich the Request for Mediation is received by the Mediation Serviceof AEADE.Article 5. Notice to other partiesOnce an unilateral Request for Mediation has been received, theSecretariat shall inform the other party or parties, giving them a periodof seven days to express their approval or disapproval to participate inmediation.If all the parties accept the invitation to participate in the mediationproceedings, they shall give notice to the Secretariat of AEADE withinthe period prescribed in the preceding paragraph.The response to the offer of mediation may be conducted by e-mail, fax,regular or registered mail, or other written means for record keepingpurposes.The lack of response in the said period of seven days or the negativeresponse given by any of the other parties shall be considered as adisapproval of the request for mediation. The Secretariat shall give verbalnotice to both the requesting and disapproving parties about this fact.Article 6: Appointment of the mediator 1. Unless the parties have agreed themselves on the person of the mediator or on another procedure for appointing the mediator, the mediator shall be appointed by the Mediation Service of AEADE after consultation with the parties. The appointment of the mediator or6
  • 7. MEDIATION RULES mediators shall be conducted as follows: 2. The number of mediators shall be one, unless the parties expressly request two. 3. In the proceedings with a sole mediator, the mediator shall be appointed by AEADE within 10 days of receipt of acceptance to participate in mediation. If the parties decide to appoint two mediators, each party shall appoint one out of three mediators proposed by AEADE or freely choose from a list of expert mediators provided by AEADE. The appointment of the mediators by the parties shall take place within 10 days from the acceptance of the mediation by all the parties. 4. The mediator shall be impartial and independent and shall conduct the mediation neutrally and refrain from intervening if there is a conflict of interest with the parties. The mediator shall disclose any circumstances likely to affect their impartiality and, in any case, in the following circumstances: - In case of any previous or present personal, contractual, professional or business relationship between the mediator and any of the parties which could affect the mediation process; - In case that the mediation proceedings may result in any economic interest, or otherwise, to the mediator, either directly or indirectly; - In case that the mediator, or a member of his/her company or organization, has previously acted as for or against one or more of the parties under any circumstances, except for mediation. In such cases the mediator may only accept or continue the mediation 7
  • 8. AEADE when total impartiality can be guaranteed and provided that the parties give their express consent. This obligation shall be in force throughout the entire mediation proceedings. 5. By accepting the appointment, the prospective mediator undertakes to spend sufficient time to allow the mediation to be conducted quickly and efficiently.Article 7. Representation of the parties a) The parties may be represented or assisted in their meetings with the mediator. The representatives of the parties shall hold a power of attorney. b) Following the appointment of the mediator and before the commencement of the mediation, each party shall give notice to the other party, the mediator and in any case the Mediation Service of AEADE, about the names and addresses of the authorized representatives and the names and positions of the individuals attending meetings with the mediator on behalf of such party.Article 8. Mediation proceedings. Principles 1. The mediation shall be conducted in the manner agreed by the parties. If, and to the extent that, the parties have not made such agreement, the mediator shall, in accordance with these Rules, determine the manner in which the mediation shall be conducted. 2. Each party shall cooperate in good faith with the mediator for the mediation to be conducted as expeditiously and effectively as possible. During the mediation process the parties shall not bring any court or out-of-court action related to the subject matter of the mediation.8
  • 9. MEDIATION RULES 3. The mediator shall be free to meet and to communicate separately with a party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other party without the express authorization of the party giving the information.Article 9. Briefings. Commencement minutes 1. The appointed mediator or mediation institution may summon the parties to the briefing. The unexcused absence of any of the parties to the briefing shall be considered a waiver of the requested mediation. In such briefing, the mediator shall inform the parties of the possible causes regarding his/her career, training and experience which may affect impartiality, as well as the characteristics, cost and organization of the mediation proceedings and the legal consequences of the prospective agreement. 2. If deemed appropriate, a deadline shall be set for the parties to submit their case to the mediator, together with the documents and other forms of evidence which will substantiate their claims. 3. At any point of the mediation process, the mediator may request the parties additional information or additional statements which may be accompanied by other documents and evidence which the parties may consider necessary to be taken into account by the mediator.Article 10. Mediation proceedings a) The mediator shall freely conduct the mediation proceedings, consistent with the principles of impartiality, neutrality, independence and good faith. 9
  • 10. AEADE b) Participation in mediation is always voluntary. Any party or mediator shall be free to withdraw at any time, without the need of any approval. If in the course of the mediation proceedings, the mediator considers that any of the parties, for any reason, cannot govern itself or is not willing to freely participate in the proceedings, the mediator may raise the issue with the parties and/or suspend the mediation temporarily or permanently. c) The mediator may terminate the mediation if any of the parties fails to fulfill the rules set in the proceedings or in the Mediation Agreement or if the mediator notices that any of the parties is hindering the mediation process or acting with abuse of law. d) Any party may at any time submit to the mediator, for consideration by the mediator only, written information or materials which it considers confidential. The mediator shall not disclose, without the written consent of that party, such information or materials to the other party. e) If the mediator considers that any issues in dispute between the parties are not likely to be resolved through mediation, the mediator may propose, for consideration by the parties, the procedures or methods he/she considers most appropriate to resolve such issues, taking into account the circumstances of the dispute and any business relationship between the parties in the most effective, less costly and most productive way. The mediator may suggest in particular: i) expert determination of one or more specific issues; ii) arbitration; iii) the submission of last offers of settlement by each party and, in the absence of a settlement through mediation, the conduction of arbitration proceedings on the basis of those last offers and according to an arbitral procedure in which the mission of the10
  • 11. MEDIATION RULES arbitration tribunal is confined to determining which of the last offers shall prevail; iv) arbitration proceedings where the mediator acts with the express written consent of the parties, as sole arbitrator. In the arbitration proceedings, the arbitrator may take into account the information received during the mediation if all parties give their written consent. v) any other possible way of settling disputes other than those mentioned above and accepted by the parties.Article 11. Confidentiality a) Mediation will be absolutely confidential. Every person involved in the proceedings must respect confidentiality. b) The information and documents provided by the parties to the mediation process shall only be subsequently disclosed to any third party by the party which has provided it. c) No recording of any kind shall be made of any meetings of the parties with the mediator. d) In case of holding individual meetings with the parties, the mediator shall clarify in advance the limits of confidentiality regarding the information which might be disclosed during such meetings. e) Mediators shall not act as experts or witnesses in any court or arbitration proceedings carried out by the parties for the same claims submitted to mediation. f) Each person involved in the mediation, including, in particular, the mediator, the parties and their representatives and advisors, 11
  • 12. AEADE any independent experts and any other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of the mediation and may not, unless otherwise agreed by the parties and the mediator, use or disclose to any outside party any information concerning, or obtained in the course of, the mediation. Each such person shall sign an appropriate confidentiality agreement prior to taking part in the mediation.Article 12. Confidentiality of documentsUnless otherwise agreed by the parties, each person involved in themediation shall, on the termination of the mediation, return, to theparty providing it, any brief, document or other materials suppliedby a party, without retaining any copy thereof. Any notes taken by aperson concerning the meetings of the parties with the mediator shallbe destroyed on the termination of the mediation.AEADE shall keep and guard for a period of six months a record with thedocuments which do not need to be returned to the parties.Article 13. Confidentiality of opinions, agreements and admissionsUnless otherwise agreed by the parties, the parties shall not introduceas evidence, or in any manner whatsoever in any court or arbitrationproceeding, information about: i) any views expressed or suggestions made by a party regarding a possible settlement of the dispute; ii) any admissions made by a party in the course of the mediation; iii) any proposals made or views expressed by the mediator; iv) the fact that a party had or had not indicated willingness to accept any proposal for settlement made by the mediator or by the other12
  • 13. MEDIATION RULES party.Article 14. Termination of the MediationUpon the termination of the mediation, the mediator shall send tothe Mediation Service of AEADE a notice in writing that the mediationis terminated. The notice shall determine the termination of theproceedings and, where appropriate, shall explain the agreementsreached in a clear and understandable way, or the termination for anyother reason. The notice shall be signed by all parties and the mediatoror mediators and one original copy shall be provided to each.Upon the termination of the mediation, documents shall be returnedto the party which had submitted them. The Mediation Service ofAEADE shall keep and guard for a period of six months a record with thedocuments which do not need to be returned to the parties. a) The Mediation Service of AEADE shall keep the confidentiality of the notification issued by the mediator and shall not disclose the existence or the result of the mediation without the written consent of the parties. b) However, the Mediation Service of AEADE may include information regarding mediation in the global statistics about the activity of the association, provided that such information does not disclose the identity of the parties or the particular circumstances of the dispute. c) The mediation proceedings shall be terminated by any of the following circumstances: I)By the signing by the parties of an agreement binding them from the time of signature or from the time the parties entered into the agreement. 13
  • 14. AEADE II)By a written certificate in which the mediator shall state the failure of the mediation. III) By notice to the Mediator by any of the parties withdrawing from further mediation proceedings. IV) By decision of the mediator who may terminate the mediation proceedings, following the consultations with the parties, on any of the following assumptions: a) Lack of cooperation by either party. b) Failure to fulfil mediation rules previously set. c) Unexcused absence of either party. d) Unlikelihood of the proceedings to achieve the intended purposes. e) The mediator detects that the conflict should be approached from a different form of intervention or treatment. f) The mediator considers that the agreement to be reached is illegal or unenforceable. g) The mediator considers that he or she is no longer able to guarantee the impartiality needed to continue with the proceedings. h) The mediator considers that either party is unable to decide and/or assume the commitments. i) Any other circumstance found by the mediator contravening the principles of mediation.14
  • 15. MEDIATION RULESIn such circumstances, the mediator shall discuss with the parties thepossibility to modify or solve the impediments. Otherwise, the partiesmay be offered to continue with the proceedings with a differentmediator or may be suggested to choose a different professional servicedeemed appropriate to the circumstances in accordance with article10.e) of these Rules.Article 15. Exclusive mediatorUnless required by a court of law or authorized in writing by the parties,the mediator shall not act in any capacity whatsoever, otherwise thanas a mediator, in any pending or future proceedings, whether judicial,arbitral or otherwise, relating to the subject matter of the dispute.Article 16. Administration fee of the Mediation Service of AEADEThe Request for Mediation shall be subject to the payment of theadministration fee to the Mediation Service of AEADE according to thefollowing rules: a) The amount of the registration fee shall be determined in accordance with the Schedule of Fees of the Mediation Service of AEADE in force at the date of the Request for Mediation. b) The administration fee shall not be refundable. c) No action shall be taken by the Mediation Service of AEADE on a Request for Mediation until the administration fee has been paid. d) If the party who has filed a Request for Mediation fails, within 15 days after the second reminder in writing from the Mediation Service of AEADE, to pay the administration fee, it shall be deemed to have withdrawn its Request for Mediation. 15
  • 16. AEADEArticle 17. Fees of the mediatorThe fees of the mediator shall be subject to the following rules: a) The amount and currency of the fees of the mediator and the modalities and timing of their payment shall be fixed by the Mediation Service of AEADE, in accordance with the present article and after consultation with the mediator and the parties. b) Unless otherwise agreed by the parties and the mediator, the amount of the fees shall be calculated on the basis of the hourly rates, or day rates where applicable, set out in the schedule of fees of the mediator applicable on the date of the Request for Mediation, taking into account the amount in dispute, the complexity of the subject matter of the dispute and any other relevant circumstances of the case.Article 18. DepositsDeposits shall be requested on the following assumptions:a) At the time of the appointment of the mediator, the MediationService of AEADE may require each party to deposit an equal amountas an advance for the costs of the mediation, including, in particular, theestimated fees of the mediator and the other expenses of the mediation.The amount of the deposit shall be determined by the Mediation Serviceof AEADE.b) The Mediation Service of AEADE may require the parties to makesupplementary deposits.c) If a party fails, within 15 days after the second reminder in writingfrom the Mediation Service of AEADE, to pay the required deposit, themediation shall be deemed to be terminated. The Mediation Service ofAEADE shall give written notice to the parties and the mediator stating16
  • 17. MEDIATION RULESthe date of termination. However, if either party fails to pay the deposit,the mediator or official body shall inform the other parties beforedeclaring the termination in case such party is interested in depositingthe sum within the set period of time.d) After the mediation, the Mediation Service AEADE shall provide theparties with an statement of the deposits made and shall return anyunexpended balance or require the payment of any sum due to theparties.Article 19. CostsUnless otherwise agreed by the parties, the administration fee, thefees of the mediator and all other expenses of mediation including, inparticular, the required travel expenses of the mediator and any expensesincurred to obtain expert advice shall be borne equally by the parties.Article 20. LiabilityThe acceptance of the appointment binds the mediators to faithfully carryout the mediation. The failure to fulfil such obligation shall result in themediator being liable for damages caused by him/her due to bad faith,recklessness or willful misconduct. The affected party shall be entitled totake direct action against the mediator and AEADE notwithstanding anyreimbursement actions pending on the mediators.Article 21. Suspension of prescriptionsThe commencement of mediation shall suspend the prescription orexpiration of legal actions from the date of Request for Mediation untilthe date of signature of the Mediation Agreement, or failing that, untilthe date of the notification causing the termination of mediation in anyof the circumstances provided in Article 14 of these rules. 17
  • 18. AEADESCALE OF CHARGES AND FEESAdministration fee 1. The amount of the administration fee shall be 0,10% of the value of the mediation, subject to a maximum administration fee of €10,000. As an example, the following registration fees shall be paid when the value of mediation reaches the following amounts (in EURO): Value of Mediation Tasa de registro registration fee 50.000 500 100.000 1.000 500.000 5.000 a partir de 1.000.000 10.000 (Amounts expressed in EURO) 2. The value of the mediation is determined by the total value of the amounts claimed. 3. Where the Request for Mediation does not indicate any claims for a monetary amount or the dispute concerns issues that are not quantifiable in monetary amounts, an administration fee of €350 shall be payable, subject to adjustment. The adjustment shall be made by according to the circumstances of the case and after consultation with the parties and the mediator. 4. For the purposes of calculating the administration fee, any monetary amounts in dispute expressed in a currency other than EURO shall be converted into EURO on the basis of the official United Nations exchange rate prevailing on the date of submission of the Request for Mediation.18
  • 19. MEDIATION RULESMediator feesIndicative fees per hour and day: Minimum Maximun Per hour 150 500 Per day 500 3.500(Amounts expressed in EURO)Note: The Mediation Service of AEADE may retain and collect up to 15%of its fees from the mediator for the service provided to the mediator. 19
  • 20. AEADE European Association of Arbitration, AEADE Campoamor, 18 3º 28004 Madrid Tel.: (+34) 914 322 800 www.aeade.org comunicacion@aeade.org20
  • 21. MEDIATION RULES 21

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