KLRCA MEDIATION RULES (Revised 2013)
These rules apply to any Mediation of any present or future dispute where the parties have agreed that the KLRCA Mediation Rules (“the Rules”) will apply.
Where any of the Rules is in conflict with the provision of law from which the parties cannot derogate, that provision prevails.
Commencement of Mediation Proceedings
Any party/parties wishing to commence Mediation proceedings pursuant to the Rules shall give to KLRCA a written Request for Mediation which shall contain the following:-
The names, addresses (including e-mail addresses), telephone numbers of the parties and any legal or other representatives involved;
A reference to any Mediation clause or a copy of the separate Mediation agreement, if any;
A reference to the contract (if any) or other legal relationship (if any) out of or in relation to which the dispute arises;
A brief explanation of the nature of dispute, the amount involved, if any, and any specific relief or outcome sought by any party; and
The Registration Fee set out in accordance with the Schedule of Fees annexed hereto (“Registration Fee”).
Upon receipt of a written Request for Mediation under Rule 3, KLRCA shall send a copy of the Request for Mediation to the other party/ parties named.
The Mediation process shall be deemed to have commenced when KLRCA receives written notice of the other party’s/parties’ acceptance of the Request.
If the other party/parties reject(s) the Request or if KLRCA does not receive a reply within 30 days from the date of KLRCA’s written notice of the Request under Rule 4, KLRCA may elect to treat this as a rejection of the Request and inform the party/ parties initiating the Mediation accordingly.
Appointment of the Mediator
Where all parties have agreed upon a proposed Mediator, who is willing to serve and is not disqualified under Rule 10, the parties will jointly appoint that person as the Mediator.
If, within 30 days of the Request for Mediation under Rule 4, all parties have not agreed upon a proposed Mediator willing to serve and not disqualified under Rule 10, then the Director of KLRCA shall appoint the Mediator and the parties are deemed to have approved the appointment made by the Director of KLRCA.
There shall be one Mediator unless the parties otherwise agree.
No person may act as a Mediator in any dispute in which that person has any financial or personal interest or any conflict of interest likely to affect or which might reasonably be perceived to affect the Mediator’s independence or ability to act impartially at all times, save where the parties have been notified in writing of such circumstances and have subsequently expressly consented in writing to the appointment of a Mediator.
If, following appointment, a Mediator becomes aware of any circumstances that may create a reasonable perception of bias, partiality or lack of neutrality, the Mediator shall immediately so inform the parties and, where the Mediator was appointed by KLRCA, shall immediately inform KLRCA. If any party objects to the continued service of the Mediator, the Mediator shall be disqualified. In this event, the parties will have a further 30 days from disqualification of the Mediator to appoint a new Mediator. In the event that the parties do not within such 30-day period agree upon a substitute proposed Mediator willing to serve and not disqualified under Rule 10, then the Director of KLRCA shall appoint the Mediator and the parties are deemed to have approved the appointment made by the Director of KLRCA.
Role of the Mediator
AThe Mediator shall assist the parties in an independent and impartial manner to reach an amicable settlement of the dispute.
The Mediator may conduct the Mediation in such manner as the Mediator considers appropriate, having regard to the circumstances of the dispute, the wishes of the parties and any practical considerations which might be relevant for the satisfactory and prompt resolution of the dispute.
Prior to or during the Mediation, the Mediator may communicate with the parties together, or with any party separately, with or without its representatives, either in person, by telephone, videoconference or electronically as the Mediator sees fit.
The parties may be required by the Mediator to participate in a preliminary conference prior to the commencement of the formal Mediation. The purpose of the preliminary conference is to enable the parties, with the assistance of the Mediator, to:-
Discuss and agree upon issues in dispute or formulate a process by which those issues are to be clarified and agreed;
Make provision for, in accordance with the Mediator’s directions, the service and exchange of documentary material relevant to the Mediation including position papers by all parties;
Make provision for such other planning and administrative arrangements as are necessary and appropriate to enable the Mediation to proceed.a
Role of the Parties
Each party to the Mediation has a duty to participate in good faith in the Mediation. Each party and their representatives will use their best endeavours to co-operate with each other and with the Mediator to settle their differences.
Authority and Representation
Each party to a Mediation may be assisted or represented by any person it chooses (including legal advisers). The identity, contact details and roles of any such persons must be disclosed to all parties and to the Mediator.
Each party to the Mediation must have authority to settle a dispute or be represented by a person or persons having full authority to settle the dispute. In the event that any such authority is limited, the limits of authority must be disclosed to the parties and the Mediator.
All mediation proceedings shall be private and confidential. All parties and participants in the Mediation shall execute a written undertaking in the form of the Confidentiality Undertaking as provided for in Schedule A to give effect to this requirement.
Any information given to the Mediator by a party in caucus or private session shall be kept confidential as between the party furnishing the information and the Mediator unless the party providing the information consents to its disclosure to any other party to the Mediation.
The Mediator, all parties and participants in the Mediation must keep all matters relating to or arising out of the Mediation private and confidential except:-
Where disclosure is compelled by law;
If necessary to give effect to a Mediation agreement or to enforce an agreement reached to settle or resolve the whole or any part of the dispute;
With the consent of the parties to the Mediation.
Unless parties agreed otherwise, the Mediation proceedings shall be held in the KLRCA premises.
The parties will be notified of the time and venue of the Mediation proceedings which shall be subject to the parties’ agreement.
The parties shall ensure that they have all necessary additional services where required for the Mediation.
Termination of the Mediation
The Mediator may suspend or terminate the Mediation or withdraw as Mediator when he or she reasonably believes the circumstances require it, including when he or she has reasonable grounds to suspect that:-
The parties are involved in illegal/fraudulent conduct; or
The parties are unable to participate meaningfully and reasonably in negotiations; or
Continuation of the Mediation process would cause significant harm to any party or a third party.
When the Mediator determines that it is necessary to suspend or terminate a Mediation or to withdraw, the Mediator must do so without violating the obligation of confidentiality and in a manner that will cause the least possible harm to the parties.
The Mediator shall promptly inform the Director of KLRCA of the termination.
In addition to termination occurring under Rule 25, the Mediation shall be deemed to be terminated upon:-
Upon the signing by the parties of a written settlement agreement;
A written declaration of the Mediator, after consultation with the parties, to the effect that further attempts at Mediation are no longer justified;
A written declaration by any of the parties addressed to the Mediator to the effect that the Mediation is hereby terminated; or
Expiry of 3 months from the date of the Request for Mediation under Rule 4 unless agreed otherwise by the parties; or
By order of the Director of KLRCA in the event that any monies properly payable under Rule 30 are not paid as required by these Rules.
Unless otherwise agreed or ordered by a court or arbitrator, each party shall bear its own costs of the Mediation.
The costs and expenses of the Mediation shall include but are not limited to:-
The professional fees of the Mediator;
The cost of the venue hire, including meeting rooms, breakout rooms, meals, translation fees, photocopying fees, internet access, telephone and communication expenses, administrative costs incurred under Rule 30(d), and any other costs reasonably and properly incurred in respect of the organisation or conduct of the Mediation;
Any fees or costs set out above in respect of expert advice or expert witnesses who attend or provide such advice with the consent of the parties;
The proper administrative charges of KLRCA relating to the conduct of the Mediation fixed in accordance with this Rule. Without limiting the foregoing, the costs of KLRCA may include:-
· The Registration Fees;
· Appointment Fee and
· Any Administrative Costs.
The parties are jointly and severally liable for costs and expenses set out in Rule 30 above.
Subject to Rule 24 above, the Director of KLRCA may arrange for translators, administrative assistance, and/or other facilities in order to facilitate the Mediation at the request of the Mediator or the parties.
Exclusion of Liability
Except in the case of fraud on the part of KLRCA or the person claiming immunity or protection from suit under this rule, neither KLRCA nor the Mediator shall be liable to any party or to any other participant in the Mediation for any act or omission in relation to or arising out of the Mediation conducted under these rules or in respect of or arising out of any settlement reached in any Mediation conducted under these rules.
All statements whether written or oral made in the course of the Mediation shall not be relied upon to institute or maintain any action for defamation, libel, slander or any related complaint.
Role of Mediator in Other Proceedings
The Mediator shall not, without the consent of the parties, act as an arbitrator or as a representative or counsel of a party or appear as a witness in any arbitral or judicial proceedings or give advice to any person whatsoever in respect of a dispute that is the subject of the Mediation.
The parties and the Mediator agree that they will not present the Mediator as a witness in any such proceedings, nor will they subpoena or endeavour to compel the Mediator to give evidence or to produce documents in any subsequent judicial proceedings or arbitration.
Schedule of Fees
Parties are free to agree with the Mediator on the Mediator’s Fees. Unless otherwise agreed, the Schedule of Fees shall apply.
The Schedule of Fees provides the fee scale for international and domestic Mediation.
An “international Mediation” means a Mediation where –
One of the parties to the Mediation has its place of business in any State other than Malaysia;
Any place where a substantial part of the obligations of any commercial or other relationship is to be performed or the place with which the subject matter of the dispute is most closely connected is in any state other than Malaysia; or
The parties have expressly agreed that the subject matter of the Mediation relates to more than one State.
A “domestic Mediation” is any Mediation which is not an “international Mediation”.
Prior to the commencement of the Mediation, each party shall pay the Registration Fees, Appointment Fee (if any) and deposit the Mediator’s Fees and Administration Costs with the KLRCA in accordance with the Schedule of Fees annexed hereto.
At any time during the course of the Mediation the Director of KLRCA may require additional deposits to be paid by the parties on account of the costs and expenses referred to in Rule 30. Any additional such sums requested by the Director of KLRCA on account of the costs and expenses referred to in Rule 30 shall be payable 15 days after the receipt of the request for additional deposits.
If any of the monies referred to in Rules 29 and 30 are not paid in full by both parties within 15 days after the receipt of the Request, the Director of KLRCA shall so inform the parties in order that one or another of them may make the required payment.
If any such payment is not made, the Mediator, after consultation with the Director of KLRCA, may order the suspension or termination of the Mediation.
The Director of KLRCA may apply the deposit towards the fees and disbursements incurred by KLRCA and the Mediator for the Mediation.
Upon termination of the Mediation, the Director of KLRCA shall render an account to the parties of the deposit received and used and return any unexpended balance to the parties.
a) Registration Fee
A non-refundable registration fee of RM150.00 is payable by the party initiating Mediation (Rule 3(e)).
b) Administrative Costs
The Administrative Costs for Mediation shall be fixed at RM500.00 per case.
c) Mediator’s Fee
i) RM3500.00 per day; and
ii) RM450.00 per hour for review of documents and related works.
a) Registration Fee
A non-refundable registration fee of USD50.00 is payable by the party initiating Mediation (Rule 3(e)).
b) Administrative Costs
The Administrative Costs for Mediation shall be fixed at USD250.00 per case.
c) Mediator’s Fee
i) USD6000.00 per day; and
ii) USD750.00 per hour for review of documents and related works.
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