18-Oct-22 Med v.

2022-2
 FUNDAMENTALS OF
MEDIATION
Module 3: Part II
Atty. Rodolfo Ferdinand N. Quicho, Jr.

18-Oct-22 Med v.2022-2

 SESSION OBJECTIVES
● Further describe Conflict Diagnostic
Tools for better appreciation of conflicts.

● Differentiate position and interest

● Describe interest-based mediation

• Understand the purpose and
benefits of Singapore Convention
11/15/22
and UNCITRL Mediation Rules
Med v.2022-1
18-Oct-22 Med v.2022-2
 CONFLICT DIAGNOSTIC TOOLS
• ABC of Conflict
• Circle of Conflict
• Stakeholder Analysis
• Analysis of Sources of Power
• Analysis of the functional ingredients of
dispute resolution/management
• Force Field Analysis

18-Oct-22 Med v.2022-2

STAKEHOLDER ANALYSIS

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 FUNCTION
• Identifies individuals, groups, sectors,
etc. who are affected and affecting
the movement of the conflict.
• Guides the mediator as to who
should be involved in the mediation
process.
• Helps ensure exhaustive coverage
(procedural and substantive) of
conflict intervention.
18-Oct-22 Med v.2022-2
STAKEHOLDER ANALYSIS FRAMEWORK
STAKE- STORYLINE, POSITION INTERESTS LEVEL OF LEVEL OF SOURCES
POSITIONING MOTIVATION INFLUENCE
HOLDERS OF POWER
OF SELF AND (H,M.L) (HML)
OTHERS

18-Oct-22 Med v.2022-2

 MOTIVATION AND INFLUENCE
• Level of motivation (high, moderate or
low) refers to the extent to which a party
desires to manage/resolve the conflict in
an amicable way.
• Level of influence (high, moderate or low)
refers to the ability of a party to affect the
direction of the conflict – towards
management/resolution or escalation

18-Oct-22 Med v.2022-2

SOURCES OF POWER

18-Oct-22 Med v.2022-2

 FUNCTION
• Informs the mediator as to the kinds of
power at play in the process.
• Guides the mediator in closing the power
gap.

18-Oct-22 Med v.2022-2

SOURCES OF POWER

18-Oct-22 Med v.2022-2

SOURCES OF POWER
Formal Authority Derived from a formal position which a structure
confers certain decision-making prerogatives
Associational or Derived from association with other people with
referent power power
Resource power Control over valued resources (money, materials,
labor, goods or services
Sanctions The perceived ability to inflict harm or interfere with
another’s ability to realize his or her interests
Habitual Power of the status quo; tendency to maintain a
particular arrangement than to change it
18-Oct-22 Med v.2022-2
SOURCES OF POWER
Expertise or Derived from having expertise in a particular area
Information
Procedural Control over procedures by which decisions are
made
Moral Derived from an appeal to widely held values
Personal Derived from personal attributes like self-assurance,
articulateness
Nuisance Derived from the ability to cause discomfort to
another

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FORCE FIELD ANALYSIS

18-Oct-22 Med v.2022-2

 FUNCTION
Informs the mediator of the internal
(intra- and inter-stakeholders) and
external environment (social, cultural,
political, economic environment, etc.) of
the conflict.

18-Oct-22 Med v.2022-2

 CRUCIAL QUESTIONS
• What are the factors that can trigger the
escalation of the conflict?

• What are the factors that can hinder or

encourage conflict
intervention/mediation?

• How can these factors be managed to

facilitate mediation?

18-Oct-22 Med v.2022-2

FUNCTIONAL INGREDIENTS
ANALYSIS

18-Oct-22 Med v.2022-2

 FUNCTION
Analyzes the state of affairs and mind of
the disputants, thereby determining if
the conditions are present for mediation
to work.

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 CHECKLIST
ü Mutual positive motivation to manage/resolve
the conflict – both have the drive to resolve or
manage the conflict

ü Balance in situational power – power imbalances

tend to inhibit the disputant from advancing
their respective views in a clear and forceful
manner

18-Oct-22 Med v.2022-2

 CHECKLIST
ü An optimum level of tension – the tension is
moderate in such a way that the disputants are
still open to consider alternatives

ü Synchronization of confrontation efforts – both

parties must be ready to confront the conflict

18-Oct-22 Med v.2022-2

CONFLICT MAP

18-Oct-22 Med v.2022-2

 DEFINITION
A Conflict Map is a communication tool
that guides the mediator/conflict manager
in dealing with the dispute/s at hand in a
more systematic manner. Given the
diagnoses, the mediator may now decide
whether to proceed with the mediation,
and thereby prescribe the manner by
which the mediation intervention should
proceed.

18-Oct-22 Med v.2022-2

 FUNCTION
• Describes the conflict at hand and its
context
• Determines the applicability of mediation
• Draws up a roadmap for mediation
intervention

18-Oct-22 Med v.2022-2

CONFLICT MAP
Diagnostic Tools Diagnostic Objectives
Conflict ABCs What happened? What are
the antecedents, the
manifestations, and effects
of the conflict?
Circle of Conflict What are the different
interests, structural
problems, value differences,
and relationship problems?
What are the problems on
data?
Action Objectives
Is mediation the appropriate
approach?
Can the differences in
interests, values, and
structural and relation
problems be used as an
opportunity for parties to use
mediation?
18-Oct-22 Med v.2022-2
CONFLICT MAP
Diagnostic Tools Diagnostic Objectives Action Objectives
Stakeholder Who are the stakeholders? What will be done to involve
Analysis What are the areas of the stakeholders? What will
dissonance (per column of be the substantive focus of
SA matrix)? Are there conflict intervention?
data/information gaps?
Link Analysis What are the different How to catalyze the creation
positions, interests and of ZOPAs?
demands? What are the
ZOPAs (Zone of Possible
Agreement)?

18-Oct-22 Med v.2022-2

CONFLICT MAP
Diagnostic Tools Diagnostic Objectives Action Objectives
Force Field What can trigger conflict How to control factors that
Analysis escalation? What can are triggering the escalation
trigger/hinder conflict of conflict? How to tap
management/resolution? factors that can help in
conflict management/
resolution?
Functional Are stakeholders ready to What can be done to
Ingredients use mediation? persuade parties to try
mediation?

18-Oct-22 Med v.2022-2

INTEREST-BASED MEDIATION

18-Oct-22 Med v.2022-2

 UNDERSTANDING INTEREST-
BASED MEDIATION
• It is important to first understand the concept
of negotiation
• Negotiation happens when the disputants or
parties in conflict by themselves attempt to
find a solution to their conflict/dispute

18-Oct-22 Med v.2022-2

 UNDERSTANDING INTEREST-
BASED MEDIATION
There are two kinds of negotiation:
• Distributive: parties aim to win/conquer each
other as in a contest
• Integrative: parties harmonize their interests

18-Oct-22 Med v.2022-2

 UNDERSTANDING INTEREST-
BASED MEDIATION
There are various approaches to negotiation, e.g.:
• Power-based approach
• Rights-based approach
• Positional bargaining approach
• Interest-based approach

18-Oct-22 Med v.2022-2

 WHAT DOES ‘POSITION’ MEAN?

A demand made by a party,

merely one way, to satisfy a
perceived interest or set of
interests.

18-Oct-22 Med v.2022-2

 WHAT DOES ‘INTEREST’ MEAN?
• An interest is a motivation behind a
demand made by a party to a dispute.
• Parties’ needs, desires, concerns, and
fears.
• The “silent movers” behind the
positions.
• The “needs that motivate the bulk of
people’s actions.”

18-Oct-22 Med v.2022-2

 INTERESTS MAY BE…

PROCEDURAL
preference for
SUBSTANTIVE way to discuss
needs of person conflict and for
in conflict manner to
implement
solution

PSYCHOLOGICAL
emotional and
relation needs of
person having
conflict

18-Oct-22 Med v.2022-2

 SUBSTANTIVE INTEREST CAN BE:
• Survival needs (food, shelter,
health)
• Sense of security (physical,
economic, mental)
Interests define the problem.
• Identity-based needs (sense of
meaning, community,
intimacy, autonomy)

18-Oct-22 Med v.2022-2

Position

Interests

18-Oct-22 Med v.2022-2

 DISCOVERING INTERESTS
• Examine the position and ask “WHY?”
• Why is the party making this demand?
• Why is it important for that demand to be
satisfied or met?
• Ask variations of “why” (i.e., why not, what
drives her to, what are her concerns…)
• Each party can have multiple interests

18-Oct-22 Med v.2022-2

 POSITION VS. INTEREST

Position Interest

What parties say they want What caused the parties to want
what they say
Claim, demand, decision, proposed Reason or motivation behind the
solution position
The focus is not on who is right or wrong, or who has a stronger or a
weaker case in court.

The Mediator helps the parties to move away from their respective
positions and to focus instead on their interests.
18-Oct-22 Med v.2022-2
 SCENARIO
POSITION INTERESTS
•I have a 3-month old baby
I want my neighbor to •I need to go to bed early
stop from having karaoke •I need to leave early for work
sessions!!! •It is considered noise since she is tone-deaf
•His/Her guests get drunk & noisy
•I am doing karaoke with my friends in the
privacy of my home
My neighbor should mind
• Me and my friends need to practice singing
his/her own business!!!
because we are going to join a competition
• We only do karaoke until 10:00 pm

18-Oct-22 Med v.2022-2


POSITION
My Mother should be
imprisoned for hurting me!!!
I have the right to discipline
my child!!!
SCENARIO
INTERESTS
• My mother doesn't love me
• My mother doesn't understand me
• I don't want my mother to go abroad and leave us
again
• I feel like I have no parents because I don’t have
someone to share my feelings with
• I love my child that is why I should teach her a lesson
• The behavior of young people is different nowadays
• I want to give my children a good life that is why I
need to work abroad
• My daughter has no sense of gratitude
18-Oct-22 Med v.2022-2

POSITION
I want to sell our ancestral
house!!!
I don’t want to sell our
ancestral house!!!
SCENARIO
INTERESTS
• I want to get married
• I want to buy my own place
• I cannot live with my sister anymore
• I don’t want to remember the bad memories in
that house
• I grew up in that house and I have a lot of good
memories there
• My share in the proceeds of the sale is not enough
for me to buy a new one
• My brother is disrespectful. He should not get
what he wants
• If my parents were alive, they won’t agree to the
sale
18-Oct-22 Med v.2022-2

POSITION
The dog owner must be held
accountable for what
happened to me!!!
It was an accident, it was not
my fault that my dog bit him!!!
SCENARIO
INTERESTS
• His dog may have Rabies
• He should not take care of the dog because he is
irresponsible
• His dog is always defecating in front of my gate
• The front of my house stinks
• His dog is noisy every night
• My dog is completely vaccinated
• If my dog defecates outside, I am cleaning the mess
• The dog barked naturally, he was just watching over
our house
• I was fired from my job so I could not answer his
treatment
18-Oct-22 Med v.2022-2
 MULTIPLE INTERESTS
Each party may have
more than just one
interest

18-Oct-22 Med v.2022-2

 EXAMPLES OF
INTERESTS:
• Identity
• Reputation
• Relationships
• Security
• Business Opportunities
• Recognition
18-Oct-22 Med v.2022-2
 IT REPRESENTS THE:

Needs Hopes Concerns

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INTEREST VS. POSITION EXERCISE

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 EXERCISE
• Get a pen and a piece of paper
• Think of a usual issue brought to you for
mediation
• List down a maximum of three positions of the
complainant and the corresponding interest/s
for each of these positions
• List down a maximum of three positions of the
respondent and the corresponding interest/s for
each of these positions
• 15 minutes

18-Oct-22 Med v.2022-2

 EXERCISE
CASE:
POSITIONS INTERESTS
Complainant

Respondent

18-Oct-22 Med v.2022-2

COMMON INTERESTS VS. CONFLICTING INTERESTS
In reality, the parties may have more
shared or compatible interests than
those that are opposed.

A Mediator should, when

communicating with each party, try to
identify the common and conflicting
interests, with a view on emphasizing Party A Party B
common and compatible interests,
and helping the parties to either
reconcile or compromise on
conflicting interests

18-Oct-22 Med v.2022-2

 INTEREST-BASED MEDIATION
• Based on the 7 elements of an effective
negotiation strategy outlined by Roger
Fisher and William Ury in 1981
• Developed by the Harvard Negotiation
Project
It is a type of Mediation that
encourages the disputing
parties to view their dispute
as a mutual problem to be
solved by them jointly having
regard to each party’s
interests, needs, and
concerns
18-Oct-22 Med v.2022-2
 INTEREST-BASED MEDIATION
• The focus is not on who among the
parties is right or wrong, or who has a
bigger chance of winning in case the
dispute is filed in court

• The Mediator helps the parties move

away from their respective positions
and focus instead on their interests
18-Oct-22 Med v.2022-2
 INTEREST-BASED, PROBLEM-SOLVING MEDIATION

Ty
e

pe
t iv

s
ec

of
To avoid positions and Expertise in Mediation
bj

M
O

process and techniques;

ed
negotiate in terms of
a in

ia t
parties’ underlying needs no actual requirement of
M

or
s
and interests instead of knowledge of the
their strict legal subject matter of the
entitlements dispute

Almost all types of Disputes

(Business/ Commercial,
Community, Construction,
Insurance, Domestic / Family,

Ap Are
Environmental, Government
Contracts, Property, Real Estate,
pl a s
ica of Land Use, Intellectual Property /
t io Patents, Labor and Employment
n and Personal Injury)
18-Oct-22 Med v.2022-2
INTERESTS DEFINE THE PROBLEM
• ‘To resolve a conflict, ‘we need to
work hard to understand
everyone’s interests… By looking at interests,
broadly enough and at the right instead of positions,
level of depth in order to gain a the possibility to develop
practical handle on what is going solutions improves.
on in a conflict.’

Bernard Mayer, The Dynamics of Conflict

Resolution
18-Oct-22 Med v.2022-2
 INTEREST-BASED

DECISION

Decision-maker: Parties themselves.

Proceedings: Non-Confrontational
Focus: Solving the Problem, having
regard to the parties’ interests
18-Oct-22 Med v.2022-2
DYNAMICS BETWEEEN PARTIES
How the other party is A co-stakeholder
viewed A co-problem solver

Goal of the process A wise outcome reached efficiently and

amicably

18-Oct-22 Med v.2022-2

 CHALLENGE TO MEDIATORS

Considering that positional bargaining

appears to be the norm, the challenge to
mediators is to vigilantly guide the process
to ensure a consistently interest-based
negotiation between the parties.

18-Oct-22 Med v.2022-2

 TIPS
• Adequately prepare by doing a sound diagnosis
of the conflict, especially identifying people
problems and substantive problems (a conflict
map is always better).
• Ensure that discussions focus on interests and
not on positions.
• Encourage the parties to invent options for
mutual gains.
• Lead the parties to lay down objective criteria for
choosing their best options.

18-Oct-22 Med v.2022-2

18-Oct-22 Med v.2022-2
 FUNDAMENTALS OF
MEDIATION
Module 3: Part III
Atty. Rodolfo Ferdinand N. Quicho, Jr.

18-Oct-22 Med v.2022-2

 SESSION OBJECTIVES
• Understand the purpose and
benefits of Singapore Convention
Explain the concepts and features
of mediation
• Differentiate position and interest
• Describe interest-based
mediation
•
11/15/22
and UNCITRL Mediation Rules
Med v.2022-1
18-Oct-22 Med v.2022-2
UNITED NATIONS CONVENTION ON INTERNATIONAL
SETTLEMENTAGREEMENTS RESULTING FROM MEDIATION
(Singapore Convention on Mediation)

Date of Adoption: 20 December 2018

Opened for Signature: 17 August 2019, Singapore

Entered into Force: 12 September 2020

Status: Philippines is a signatory but is yet to ratify

the Convention
18-Oct-22 Med v.2022-2
 WHAT IS THE SINGAPORE CONVENTION?
- Establishes a harmonized and efficient legal
framework for :
(i) the right to invoke settlement agreements; and
(ii) their enforcement

- Complements the UNCITRAL Model Law on

Commercial Mediation & International Settlement
Agreements Resulting from Mediation (2018)

18-Oct-22 Med v.2022-2

 ADVANTAGES:
- Facilitates international trade and promotes
mediation as an alternative and effective
method of resolving trade disputes

- Binding instrument --> settlement becomes

binding and enforceable across borders

- Brings certainty and stability to the

international framework on mediation

18-Oct-22 Med v.2022-2

SCOPE OF APPLICATION

Article 1(1)

- International agreements
- resulting from mediation
- concluded in writing by parties
- to resolve a commercial dispute

18-Oct-22 Med v.2022-2

SETTLEMENT AGREEMENT MUST BE INTERNATIONAL

(a) At least two parties have their places of business in different States; or

(b) The State in which the parties have their places of business is different
from either:

(i) The State in which a substantial part of the obligations under

the settlement agreement is performed; or
(ii) The State with which the subject matter of the settlement
agreement is most closely connected.

18-Oct-22 Med v.2022-2

 SETTLEMENT MUST RESULT FROM MEDIATION

Article 2(3)

“Mediation” - a process, irrespective of the

expression used or the basis upon which the
process is carried out, whereby parties attempt to
reach an amicable settlement of their dispute with
the assistance of a third person or persons (“the
mediator”) lacking the authority to impose a
solution upon the parties to the dispute.

18-Oct-22 Med v.2022-2

UNCITRAL MEDIATION RULES
(2021)

18-Oct-22 Med v.2022-2

 Mediation Rules of the United Nations
Commission on International Trade Law

- Adopted on 9 December 2021

- Recommended by the UNCITRAL in the settlement of

disputes arising in the context of international
commercial relations

- Preparation of the Rules benefitted from consultation

with Governments and interested intergovernmental
and international NGOs

18-Oct-22 Med v.2022-2

 APPLICATION OF THE RULES
(Article 1)

- Upon the Agreement of the parties, irrespective of the basis

upon which mediation is carried out.

- Mediation –> a process whereby parties request a

third person/s (the “mediator”) to assist them to
in their attempt to reach an amicable settlement of
their dispute. The Mediator does not have authority to
impose solution to the dispute.

18-Oct-22 Med v.2022-2

 Model Mediation Clauses

Mediation only

Any dispute, controversy or claim arising out of or

relating to this contract, or the breach, termination, or
invalidity thereof, shall be submitted to mediation in
accordance with the UNCITRAL Mediation Rules.

18-Oct-22 Med v.2022-2

 Model Mediation Clauses
Multi-tiered clause

Any dispute, controversy or claim arising out of or relating to this

contract, or the breach, termination, or invalidity thereof, shall be
submitted to mediation in accordance with the UNCITRAL Mediation
Rules.

If the dispute, or any part thereof, is not settled within [(60) days] of
the request to mediate under these Rules, the parties agree to resolve
any remaining matters by arbitration in accordance with the
UNCITRAL Arbitration Rules.

18-Oct-22 Med v.2022-2

 APPLICATION OF THE RULES
(Article 1)

- The parties may agree to exclude or vary any

provision of the Rules at any time.

- Where any provision of the Rules is in conflict with

a provision of the law applicable to the mediation
from which the parties cannot derogate, including
any applicable instrument or court order, that
provision of law shall prevail.

18-Oct-22 Med v.2022-2

 Number and Appointment of Mediators
(Article 3)

- One mediator unless otherwise agreed. Where there is

more than one, mediators shall act jointly.

- Parties should endeavor to appoint the mediator by agreement

of the parties, unless a different procedure applies;
Parties may seek assistance from an institution or person
for appointing a mediator.

- Parties may agree to replace a mediator at any time.

18-Oct-22 Med v.2022-2

 Number and Appointment of Mediators
(Article 3)
Factors to consider in recommending/selecting a mediator:

(a) Professional expertise and qualifications, experience as a

mediator and ability to conduct the mediation;
(b) Any relevant accreditation and/or certification awarded by a
recognized professional mediation standards body;
(c) Availability of the mediator;
(d) Such considerations as are likely to secure the
appointment of an independent and impartial mediator

18-Oct-22 Med v.2022-2

 Number and Appointment of Mediators
(Article 3)

Factors to consider in recommending/selecting a mediator:

- If the parties have different nationalities, the advisability of

appointing a mediator of a nationality other than the nationalities
of the parties may be taken into account.

- Geographical diversity and gender of the candidates shall

also be considered.

18-Oct-22 Med v.2022-2

 Duties of the Mediator
(Article 3)
- A prospective mediator shall disclose any circumstances
likely to give rise to justifiable doubts as to his or her impartiality or
independence.

- A mediator, from the time of appointment and throughout

the mediation, shall, without delay, disclose to the parties
any such circumstances as they arise.

- Prior to accepting the appointment, the prospective mediator

shall ensure his/her availability to conduct the mediation
diligently and efficiently.

18-Oct-22 Med v.2022-2

 Model Declaration of Disclosure

No circumstances to disclose

To the best of my knowledge, there are no circumstances, past or

present, likely to give rise to justifiable doubts as to my impartiality or
independence. I shall promptly notify the parties of any such
circumstances that may subsequently come to my attention during
this mediation.

18-Oct-22 Med v.2022-2

 Model Declaration of Disclosure

Circumstances to disclose

Attached is a statement of (a) my past and present professional,

business and other relationships with the parties and (b) any other
relevant circumstances. [Include statement.] I confirm that those
circumstances do not affect my independence and impartiality. I shall
promptly notify the parties of any such further relationships or
circumstances that may subsequently come to my attention during
this mediation.

18-Oct-22 Med v.2022-2

 Model Statement of Availability

I confirm, on the basis of the information presently

available to me, that I can devote the time necessary to
conduct this mediation.

18-Oct-22 Med v.2022-2

 CONDUCT OF MEDIATION
(Article 4)
- Parties may agree on the manner in which the mediation is to be
conducted; or the mediator may determine the conduct of the
mediation in consultation with the parties

- The mediator shall maintain fair treatment of the parties

- Arrangements to facilitate conduct of mediation: (a) meeting at

early stage to agree on organization of mediation;
(b) arrangement for possible assistance by a suitable
institution/person: (c) appointment of experts

18-Oct-22 Med v.2022-2

 CONDUCT OF MEDIATION
(Article 4)
- Utilization of technological means in mediation, including to
communicate with the parties and to hold meetings remotely

- A party may be represented or assisted by a person/s

of its choice.
-> Name, address and function shall be communicated to all parties
and to the mediator in advance of the mediation or without delay.
-> Communication shall indicate scope of authority and whether
the purpose of the appointment is for representation
or assistance.

18-Oct-22 Med v.2022-2

 COMMUNICATION BETWEEN PARTIES &
MEDIATOR (Article 5)

- The mediator may meet or communicate with the parties together

or
or with each of them separately.

- At any stage of the mediation, the parties may submit information

concerning the dispute: (i) statements describing the general
nature of the dispute;(ii) points at issue; and (iii) any supporting
document/s or additional information deemed appropriate;
(iv) description of the goals, interests, needs and motivations
of the parties.

18-Oct-22 Med v.2022-2

 COMMUNICATION BETWEEN PARTIES &
MEDIATOR (Article 5)

CONFIDENTIALITY

When the mediator receives information concerning the dispute

from a party, the mediator shall keep such information confidential,
unless that party indicates that the information is not subject
to the condition that it should be kept confidential, or expresses
its consent to the disclosure of such information to another
party to the mediation.

18-Oct-22 Med v.2022-2

 CONFIDENTIALITY
(Article 6)

Unless otherwise agreed by the parties, all information relating to

the mediation, including, if relevant, the settlement agreement,
shall be kept confidential by those involved in the mediation,
except where disclosure is required by the law or as referred
to under article 8, paragraph 4.

18-Oct-22 Med v.2022-2

 INTRODUCTION OF EVIDENCE IN OTHER
PROCEEDINGS (Article 7)
1. Unless otherwise agreed by the parties, a party to the mediation,
the mediator and any third person, including those involved in the
administration of the mediation shall not, in arbitral, judicial or
other dispute resolution proceedings, rely on, introduce as
evidence or give evidence regarding any of the following:

(a) An invitation by a party to engage in mediation or the fact

that a party was willing to participate in mediation;
(b) Views expressed, or suggestions made by a party
in the mediation in respect of a possible settlement
of the dispute;

18-Oct-22 Med v.2022-2

 INTRODUCTION OF EVIDENCE IN OTHER
PROCEEDINGS (Article 7)
(cont.)

(c) Statements or admissions made by a party in the course of

the mediation;
(d) Proposals made by the mediator or the parties;
(e) The fact that a party had indicated its willingness to accept
a proposal (or parts thereof) for settlement made by the
mediator or the parties; and
(f) A document prepared primarily for purposes of the
mediation.

18-Oct-22 Med v.2022-2

 INTRODUCTION OF EVIDENCE IN OTHER
PROCEEDINGS (Article 7)
2. Paragraph 1 applies irrespective of the form of the information
or evidence referred to therein.

3. Paragraphs 1 and 2 apply whether or not the arbitral, judicial,

or other dispute resolution proceedings relate to the dispute
that is or was the subject matter of the mediation.

4. Subject to the limitations of paragraph 1, evidence that is

otherwise admissible in arbitral, judicial, or other dispute
resolution proceedings does not become inadmissible as a
consequence of having been used or disclosed
in the mediation.

18-Oct-22 Med v.2022-2

 SETTLEMENT AGREEMENT
(Article 8)

- Parties to prepare and sign a settlement agreement.

The mediator may provide support in preparing
the settlement agreement upon request of parties
and if parties deem appropriate.

18-Oct-22 Med v.2022-2

 SETTLEMENT AGREEMENT
(Article 8)

- Unless the parties agree otherwise, the mediator/

mediation institution may sign or stamp the
settlement agreement or provide other evidence
that the agreement resulted from mediation.

18-Oct-22 Med v.2022-2

 SETTLEMENT AGREEMENT
(Article 8)
- Requirement that a settlement agreement shall be signed
by the parties is met in relation to an electronic
communication if:

(a) A method is used to identify the parties and to indicate the

parties’ intention in respect of the information contained in
the electronic communication;

18-Oct-22 Med v.2022-2

 SETTLEMENT AGREEMENT
(Article 8)
(b) The method is used either:

(i) As reliable as appropriate for the purpose for which the electronic
communication was generated or communicated, in the light of
all the circumstances, including any relevant agreement; or

(ii) Proven in fact to have fulfilled the functions described

in subparagraph (a) above, by itself or together
with further evidence.

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 SETTLEMENT AGREEMENT
(Article 8)

By signing the settlement agreement, the parties agree

that the settlement agreement can be used as
evidence that it results from mediation, and that it
can be relied upon for seeking relief under
the applicable law.

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 TERMINATION OF MEDIATION
(Article 9)
(a) By the signing of the settlement agreement by the
parties, on the date of the agreement or such
other date as agreed by the parties;

(b) By a declaration of the parties to the mediator to

the effect that the mediation is terminated, on
the date of the declaration;

(c) By a declaration of a party to the other party

and the mediator to the effect that it no longer
wishes to pursue mediation, on the date
of the declaration;

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 TERMINATION OF MEDIATION
(Article 9)
(d) By a declaration of the mediator, after consultation with the parties,
to the effect that further efforts at mediation are no longer justified,
on the date of the declaration;

(e) By a declaration of the mediator, after consultation with the parties,

in the situation referred to in article 11, paragraph 5,
on the date of the declaration; or

(f) At the expiration of any mandatory period in the applicable

international instrument, court order or mandatory statutory provision,
or as agreed upon by the parties.

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 ROLE OF THE MEDIATOR IN THE PROCEEDINGS
(Article 12)

Unless otherwise agreed by the parties, the mediator

shall not act as an arbitrator in respect of the dispute
that was or is the subject of the mediation and of
a dispute that has arisen from the same or a
related contract or legal relationship.

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 ROLE OF THE MEDIATOR IN THE PROCEEDINGS
(Article 12)

The mediator shall not act as a representative or

counsel of a party, or be presented by any party as
witness, in any arbitral, judicial or other dispute
resolution proceedings in respect of the dispute
that was or is the subject of the mediation and
of a dispute that has arisen from the same or
a related contract or legal relationship.

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 EXCLUSION OF LIABILITY
(Article 13)

Save for intentional wrongdoing, the parties waive,

to the fullest extent permitted under the applicable
law, any claim against the mediator based on
any act or omission in connection with the
mediation.

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THANK YOU
Does anyone have any questions?

mediation.oadr@gmail.com
Office for Alternative Dispute
Resolution

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