rules for mediators

RULES OF CONDUCT FOR THE MEDIATOR WHO IS LISTED IN THE NMI’S REGISTER OF MEDIATORS

Article 1 – General

1. The Mediator shall conduct himself at all times in such a manner that confidence in the NMI and in Mediation shall not be harmed.

2. The Mediator shall conduct himself in accordance with the Mediation Rules.

Article 2 – Independence

1. A Mediator who himself has an interest in the outcome of the Mediation shall not accept his appointment.

2. The Mediator shall not act in a dispute on which he has previously advised one of the Parties. The foregoing is not applicable if he has made his position clear to all Parties and the Parties, nevertheless, request him to act as Mediator.

3. The Mediator shall make clear to all Parties the relationship he and/or one or more of his associates has or has had with one or more Parties.

4. The Mediator shall withdraw from the Mediation if, in his opinion, the Rules of Conduct and/or the Mediation Rules are not or cannot be observed.

5. In performing his duties, the Mediator shall not be guided by interests outside of the mediation.

6. The Mediator shall maintain an independent position. The Mediator shall express no judgement as to the merits of the dispute or any part thereof, unless the Parties each specifically request him to do so.

Article 3 – Mediation Agreement

Prior to the Mediation, the Mediator is required to enter into a Mediation agreement with all Parties and to explain the Mediation process, the content of the Mediation agreement and the Mediation Rules.

Article 4 – The Mediator’s Method of Working

1. The Mediator shall conduct the Mediation with due dispatch.

2. The Mediator shall require the Parties to provide all information necessary to arrive at proper decisions.

3. The Mediator shall see to it that the Dispute is dealt with in an even-handed manner and shall ensure as much as possible that each Party is afforded an equal turn.

Article 5 – Confidentiality

1. The Mediator shall not involve third parties in the Mediation and shall not disclose information concerning the Mediation to third parties, except with the consent of the Parties.

2. The Mediator shall require all third parties he involves in the Mediation or informs of the Mediation to commit in writing to maintain confidentiality.

Article 6 – Fee

1. The Mediator shall reach agreement with the Parties on his fee and shall record it in the Mediation Agreement.

2. The Mediator shall determine his fee purely on an hourly basis and independent of the outcome of the Mediation.

3. The Mediator shall submit a clearly specified invoice, showing which activities have been carried out and which costs are charged for what. The Mediator shall keep a record of his activities and shall submit this record if so requested.

4. The Mediator may condition the commencement or the continuation of his activities on the Parties’ posting security for settlement of his invoice.

Article 7 – Collegiality

1. A Mediator who takes over a Mediation from another Mediator is obliged to inform his predecessor of this.

2. If the Mediator is being replaced, the new Mediator shall not commence his activities until the invoices of his predecessor and of the Assistants involved in the Mediation thus far have been fully paid.

3. Nevertheless, the Mediator may commence his activities when he has a written authorization of the Board of the NMI.

4. If a Mediator is being replaced by another Mediator, the previous Mediator shall at the Parties’ request fully inform the Mediator who succeeds him. The information supplied during a caucus is exempted therefrom, unless it has been agreed, with respect to that information, that it may be passed on to the other Party.

© Stichting Nederlands Mediation Instituut © translation Trenité Van Doorne, Advocaten Notarissen Octrooigemachtigden.

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NMI  MEDIATION RULES   (edition 01-01-01) Article 1 – Definitions   In these Rules the following terms have the following meaning:               The NMI:                                               the Foundation “Stichting Neder­lands Mediati­on Insti­tuut”, having its registered office in Rot­terdam.   Rules:                                                   these NMI Mediation Rules.   Secretariat:                                           the Secretariat of the NMI.   Register:                                               the register kept by the NMI listing the Mediators available under the Rules for the rendering of assistance in  Mediation procedures.   Mediation:                                             procedure in which the Parties attempt to resolve their dispute amicably with the aid of a Mediator, in accordance with these Rules.   Mediation Agreement:                            the agreement in which the Parties and the Mediator mutually undertake to use their best endeavours in attempting to resolve the dispute described therein through Mediation.   Dispute:                                                the dispute described in the Media­tion Agreement.   Party/Parties:                                        the Parties (or one of them) who wish to resolve their dispute through Media­tion.   Mediator:                                              the person who conducts the Mediation procedure and is                                                             listed in the Register.   Auxiliary Person:                                   any person who or organization which at the unanimous request of the Parties, or at the request of the Mediator and with the consent of the Parties, assists in the Mediation.   Separate Talks:                                     talks held between one or several of the Parties and the Mediator without any of the other Parties being present.     Article 2 – Secretariat   2.1               The Secretariat is charged with the keeping of the accounts and records of Medi­a­tions             and with the keeping of the Register. 2.2        The Secretariat shall in addition have such other duties and powers as shall be assigned to it in these Rules.     Article 3 – Applicability of the Rules   The Rules shall apply to the Mediation to which the Parties have committed themselves by the signing of the Mediation Agreement.     Article 4 – Voluntariness   Any Party and the Mediator may prematurely terminate the Mediation procedure.     Article 5 – Non-commitment   The Parties cannot be compelled to adhere to the positions adopted and proposals made by them in the course of the Mediation nor to any statements made by them to the Mediator or to the other Party or any of the other Parties, with the exception of what has been agreed between them in a settlement agreement as referred to in article 14. The Parties may deviate from the foregoing if and insofar as they explicitly agree to do so in writing.     Article 6 – Privacy   No persons shall be present at the Mediation other than the Mediator, the Parties and/or their representatives and Auxiliary Persons, except with the joint consent of the Parties. If the Mediator wishes he may for secretarial support during the Mediation avail himself of the assistance of a person to be designated by him for that purpose. Any persons other than the Mediator and the Parties themselves may be involved in and/or admitted to the Mediation only if they have undertaken beforehand to maintain confidentiality.     Article 7 – Confidentiality   7.1     The Parties undertake not to disclose to any third party – including courts and arbitrators – any information concerning the progress of the Mediation procedure, the positions adopted, the proposals made or the information supplied by the Parties verbally or in writing either directly or indirectly. 7.2     The Parties undertake not to reveal, quote from, refer to, paraphrase or in any other way invoke any documents to any third party – including judges and arbitrators -, if such documents have been revealed, shown, quoted from or paraphrased by any Party involved in the Mediation. This obligation shall not apply if and insofar as the Party in question already itself had or could have had these documents at its disposal independently of the Mediation. By documents as referred to in this article shall also be meant: memorandums, notes, minutes of sessions, etc., as well as other data carriers, such as audiotapes, videotapes and computer discs. 7.3     The provisions of the preceding paragraphs of this article shall apply mutatis mutandis in respect of the Mediator. 7.4     The Parties undertake to not at any time examine the Mediator, Auxiliary Persons and/or other persons involved in the Mediation, or cause the same to be examined, as a witness or otherwise, concerning facts, documents, proposals, statements, etc. – all this to be construed in the widest sense – that were discussed during the Mediation, if and insofar as the Party in question did not already have these at its disposal  independently of the Mediation. 7.5     All information supplied to the Mediator during Separate Talks by the person or persons present thereat, shall be treated by the Mediator as confidential, unless it has been agreed otherwise. 7.6     This article shall be without prejudice to the provisions of article 15.     Article 8 – Other procedures   8.1     The Parties undertake while a Mediation procedure is in progress not to institute any legal or other proceedings against each other concerning the Dispute or any parts thereof – with the exception of steps for the safeguarding of rights – unless the Parties have agreed otherwise. 8.2     If any Party institutes any proceedings that are permitted under paragraph 1, such Party shall have the obligation to within 24 hours notify this to the Mediator and to the other Party or Parties. 8.3     Any ongoing proceedings during the Mediation concerning the Dispute or any parts thereof – with the exception of steps for the safeguarding of rights – shall be suspended by the Parties for the duration of the Mediation. During the Mediation no procedural acts – except for the aforementioned exception – shall take place.     Article 9 – Exclusion of liability   The NMI, the members of the Board of the NMI in person, the members of constituent bodies of the NMI in person, employees of the NMI, Me­diators and Auxiliary Persons shall not be liable for any damage, whatever its nature, that may arise for the Parties or any persons involved in the Mediation out of the Media­ti­on, all this to be construed in the widest sense. The Parties undertake to give indemnity to the natural and/or legal persons referred to above in the event of any claims from third parties on that account.     Article 10 – Powers of attorney   If any Party is not present in person during the Mediation procedure, it must be represented by a person who is authorized to perform all legal acts that may be necessary within the framework of the Mediation. The relevant power of attorney must be produced when so requested by any of the Parties or by the Mediator.     Article 11 – Appointment of the Mediator   11.1   The Mediator shall be appointed by the Parties jointly. The appointment shall be recorded in the Mediation Agreement. If the Mediator accepts his appointment he must give evidence thereof by co-signing the Mediation Agreement. 11.2   If the Parties wish to arrive at the appointment of a Mediator with the aid of the NMI, they must file a written request thereto with the Secretariat. The request must at least contain the names, addresses, telephone and fax numbers of the Parties and their representatives, if any, as well as a concise description of the Dispute.      11.3   Upon receipt of the request the Secretariat will send to the Parties a copy of the Rules, and a list with the names of the Mediators who according to the description of the Dispute are eligible for appointment, as well as an invoice for administrative charges.*) 11.4   The Parties will together select a Mediator from the aforementioned list and notify the Secretariat in writing which Mediator they have selected. Upon receipt of this letter the Secretariat will inform the Mediator concerned of the request and of his having been selected. The Mediator will then contact the Parties, so that the Mediation can be commenced. 11.5   If the Parties fail to together agree on the selection of a Mediator, they will notify this in writing to the Secretariat. The Secretariat will then send them a written proposal for a Mediator who may be appointed by the Parties.   *) The NMI may where appropriate decide not to charge administrative charges. Administrative charges are almost never charged, without this constituting a precedent.     Article 12 – Replacement of a Mediator   12.1   If during the Mediation procedure the Parties arrive at the conclusion that the Mediation should be continued by a different Mediator, they may cancel the appointment of the Mediator by notifying this to the latter in writing 12.2   The fees, costs and expenses incurred in respect of the Mediation up to the time that the Mediator receives the written notification referred to in the preceding paragraph, shall continue to be payable by the Parties in full. 12.3   Appointment of another Mediator may then take place by applying Article 11 mutatis mutandis, however only after the fees, costs and expenses referred to in the preceding paragraph have been paid in full.     Article 13 – Conduct of Mediation in general   13.1   The Mediator shall decide, after consultation with the Parties, on the manner in which the Mediation procedure will be conducted. 13.2   The Mediation procedure shall be conducted in the Dutch language, unless the Parties agree on a different language. 13.3   All the Parties and the Mediator shall use their best endeavours to ensure that the Mediation proceeds with the necessary speed. 13.4   The Mediator shall be empowered to hold Separate Talks.     Article 14 – Recording of the outcome of the Mediation   If an amicable resolution has been reached, this shall be recorded in a settlement agreement between the Parties. The Mediator shall ensure that what has been agreed between the Parties is properly recorded in writing.     Article 15 – Compliance with settlement agreement   Any disputes arising between the parties out of the settlement agreement concluded by the Parties shall be submitted by the Parties to Mediation, before submitting them to a court or an arbitrator or arbitrators. By way of exception to the provisions of article 7, the settlement agreement signed by the Parties in such a procedure may be submitted to the Mediator, a court, or an arbitrator or arbitrators.     Article 16 – Complaints   If any Party is dissatisfied with the performance of a Mediator, that Party may lodge a complaint concerning this with the NMI in accordance with the NMI Complaints Scheme at that time in force.     Article 17 – Payment of fees, costs and expenses   17.1   The fees, costs and expenses of the Mediation comprise:           –  the administrative charges referred to in article 11 paragraph 3;           –  the fees of the Mediator and Auxiliary Persons, and the expenses incurred by them;           – any VAT and other taxes and levies imposed by the authorities on the              aforementioned fees, costs and expenses. 17.2   The Mediator may present advance bills to the Parties. 17.3   All amounts incidental to the Mediation invoiced to the Parties (including advances) must be paid by the Parties within fourteen calendar days after the NMI, the Mediator, or the Auxiliary Persons have presented their invoices or bills of costs. 17.4   Each Party shall bear an equal share of the fees, costs and expenses payable in respect of the Mediation, unless the Parties have agreed on a different distribution in the Mediation Agreement. 17.5   Each Party shall bear its own costs and expenses.     Article 18 – Cases not provided for by the Rules   In all cases not provided for by the Rules the Mediator shall decide. In doing so the Mediator shall act in accordance with the purport of the Rules.     Article 19 – Amendments to the Rules   The NMI shall have the power to amend the Rules at any time. Such amendments shall not affect any ongoing Mediation procedure. The version of the Rules in force at the time of the commencement of such a procedure shall apply to that procedure.     Article 20 – Applicable law   These Rules shall be governed by Dutch law. The same shall apply in respect of the settlement agreement as referred to in article 14, unless the Parties have agreed otherwise.       In these Rules the following terms shall mean: NMI:  The “Stichting Nederlands Mediation Instituut“, with its registered offices in Rotterdam. Rules: These NMI – Mediation Rules – 2001. Secretariat: The secretariat of the NMI. Register: The register maintained by the NMI, listing mediators available to conduct procedures under these Rules. Mediation: A procedure, through which the Parties attempt to settle their dispute amicably, with the assistance of a Mediator, applying these Rules. Mediation Agreement: The agreement in which the Parties and the Mediator undertake to attempt to settle the dispute defined therein through Mediation. Dispute: The dispute defined in the Mediation Agreement. Party(ies): The Parties (or one of them) who wish to settle their dispute through Mediation. Mediator: The person who guides the Mediation procedure and who is registered in the Register Assistant: A person or organization which assists in the Mediation at the unanimous request of the Parties or at the request of the Mediator and with the Parties’ consent. Caucus: A conference between one or more of the Parties and the Mediator outside of the presence of one or more of the other Parties. Article 2 – Secretariat 2.1 The Secretariat is responsible for the administration of Mediations and the Register. 2.2 The Secretariat also has the duties and powers assigned to it in these Rules. Article 3 – Applicability of these Rules These Rules are applicable to the Mediation to which the Parties have committed themselves by signing the Mediation Agreement. Article 4 – Voluntariness Each of the Parties and the Mediator may terminate the Mediation procedure prematurely. Article 5 – Non-commitment The Parties cannot be bound by the positions taken and proposals made by them during the Mediation nor to statements made by them to the Mediator or the other Party, except for those matters agreed upon and laid down in a settlement agreement as described in Article 14. The Parties may deviate from the above if and to the extent that they explicitly agree to do so in writing. Article 6 – Closed Meetings No persons other than the Mediator, the Parties, or their representatives, and Assistants shall be present at the Mediation, unless the Parties have given their mutual consent thereto. If the Mediator wishes, he can have secretarial support provided during the Mediation by a person to be appointed by him. Persons other than the Mediator and the Parties themselves can only be involved in and/or admitted to the Mediation if they have bound themselves to confidentiality beforehand. Article 7 – Confidentiality 7.1 The Parties commit to refrain from making statements to third parties – including judges or  arbitrators – concerning the course of the Mediation procedure, the positions taken and/or proposals made by the Parties and any related information, oral or written, direct or indirect. 7.2 The Parties commit not to disclose, quote, paraphrase or otherwise refer to any documents to a third party – including judges or arbitrators – if these documents have been disclosed, shown, cited, or paraphrased by a Party involved in the Mediation. This commitment does not apply if and insofar as the relevant Party independently from the Mediation already had or could have had these documents at its disposal. For the purposes of this article “documents” are understood to include: statements, memoranda, records of sessions, etc. drawn up by the Parties or the Mediator within the scope of the Mediation, as well as other data carriers, such as audio tapes, video tapes and computer diskettes. 7.3 The foregoing clauses of this article apply mutatis mutandis to the Mediator. 7.4 The Parties undertake never to hear or cause the Mediator, the Assistants and/or others who have been involved in the Mediation to be heard as a witness or otherwise hear or cause them to be heard about facts, documents, proposals, statements, etc. — all to be understood in the broadest sense — which have been under discussion during the Mediation, if and as far as the Party concerned, independently of the Mediation, did not already have these at its disposal itself prior to the Mediation. 7.5 All information provided to the Mediator during a Caucus by those present shall be treated in strict confidence by the Mediator, unless otherwise agreed. 7.6 This article in no way derogates the provisions of Article 15. Article 8 – Other procedures 8.1 During the course of a Mediation procedure, the Parties commit not to initiate legal or other proceedings against each other concerning the Dispute or parts thereof – except for measures for the preservation of rights – unless the Parties have otherwise agreed. 8.2 If a Party initiates proceedings which are allowed pursuant to Article 8.1, it must notify the Mediator and the other Party thereof within 24 hours. 8.3 Any proceedings concerning the Dispute or parts thereof pending during the Mediation – except for measures for the preservation of rights — shall be suspended by the Parties for the duration of the Mediation. Legal actions – save for the exception mentioned above — shall be held in abeyance during the Mediation. Article 9 – Exclusion of Liability The NMI, NMI Board members in person, members of NMI bodies in person, NMI employees, Mediators and Assistants shall not be liable for damages, of whatever nature, which might arise from the Mediation for the Parties or those involved in the Mediation, all this to be understood in the broadest sense. The Parties shall indemnify the above-mentioned natural and/or legal persons against any claims by third parties on that account. Article 10 – Powers of attorney If a Party is not present in person during the Mediation procedure, it must be represented by a person who is authorized to perform any legal acts necessary in connection with the Mediation. To that end, a power of attorney must be presented when a Party or the Mediator so desires. Article 11 – Appointment of Mediator 11.1 The Mediator shall be jointly appointed by the Parties. The appointment shall be recorded in the Mediation Agreement. If the Mediator accepts his appointment, he confirms this by co-signing the Mediation Agreement. 11.2 If the Parties wish to appoint a Mediator with the aid of the NMI, they must file a written application to that effect with the Secretariat. The application must include in any case the names, addresses, telephone and telefax numbers of the Parties and their representatives, if any, as well as a general description of the Dispute. 11.3 After receipt of the application, the Secretariat shall send the Parties a copy of these Rules, a list of Mediators, who, in view of the description of the Dispute, may be considered for appointment, as well as an invoice for administrative charges. 11.4 The Parties shall jointly select a Mediator from the above-mentioned list and inform the Secretariat in writing which Mediator they have selected. Upon receipt thereof, the Secretariat shall inform the Mediator of the application and the selection. The Mediator shall then contact the Parties so that the Mediation can be commenced. 11.5 If the Parties are unable to make a joint selection, they shall inform the Secretariat thereof in writing. Thereupon the Secretariat shall send them a written proposal for a Mediator to be appointed by the Parties. Article 12 – Replacement of the Mediator 12.1 If, during the Mediation procedure, the Parties come to the conclusion that it would be advisable for the Mediation to be continued by another Mediator, they may withdraw the Mediator’s appointment by jointly informing him thereof in writing. 12.2 The Mediation costs incurred up until the Mediator has received the aforementioned written announcement shall remain fully payable by the Parties. 12.3 The appointment of another Mediator can subsequently take place in accordance with Article 11, but not until the costs as set forth in paragraph 2 of this article have been paid in full. Article 13 – The Procedure in General 13.1 After consultation with the Parties, the Mediator shall determine the method by which the Mediation procedure shall be conducted. 13.2 The Mediation procedure shall be conducted in Dutch, unless the Parties agree to another language. 13.3 All Parties and the Mediator shall endeavour to conduct the Mediation with dispatch. 13.4 The Mediator is authorized to conduct Caucuses. Article 14 – Deed of Settlement Upon reaching an amicable settlement, the Parties shall record it in a settlement agreement between themselves. The Mediator shall ensure that the substance of the agreement between the Parties is properly recorded. Article 15 – Fulfilment of the settlement agreement The Parties shall submit disputes with regard to the settlement agreement to Mediation, before submitting them to the judgement of a judge or arbitrator(s). As an exception to the provisions of Article 7, the settlement agreement signed by the Parties may be submitted to the Mediator, the judge, or arbitrator(s) in such a procedure. Article 16 – Complaints If a party is dissatisfied with the Mediator’s performance, that Party can lodge a complaint with the NMI in accordance with the NMI Complaints Procedure in force at that time. Article 17 – Financial settlement 17.1 The Mediation costs comprise: – the administrative charges referred to in Article 11.3; – the fees of the Mediator and Assistants, as well as any costs incurred by them; – any VAT and other taxes and governmental charges on the above-mentioned fees and costs. 17.2 The Mediator may submit invoices for retainer fees to the Parties. 17.3 The Parties shall pay all amounts invoiced to them pursuant to the Mediation (including retainer fees) within fourteen calendar days of submission of the invoice or note of fees from the NMI, the Mediator and/or the Assistants. 17.4 The costs of the Mediation shall be borne in equal shares by all Parties involved, unless the Parties have agreed to another division in the Mediation Agreement. 17.5 The Parties shall each bear their own costs. Article 18 – Unforeseen circumstances In matters not provided for in these Rules, the Mediator shall decide. In doing so, he shall act in accordance with the spirit of these Rules. Article 19 – Modification of these Rules The NMI is at all times authorized to modify these Rules. Such modifications shall not affect the Mediation procedures in progress at such time. The Rules in force at the commencement of those procedures shall be applicable to such procedures. Article 20 – Applicable law These Rules are governed by Dutch law. Dutch law also applies to the settlement agreement as provided for in Article 14, unless the Parties agree otherwise.   © Stichting Nederlands Mediation Instituut