The final part of the China Business Review series dealing with trade disputes.
Sample Mediation Procedures
The US-China Mediation Business Center's mediation procedures offer an alternative to arbitration. Some of the key procedures are listed below.
The mediator shall have no interest in the outcome of the dispute and have no current or anticipated business or personal relationship with any party to the dispute.
Each party must be represented at each mediation conference by a business executive authorized to negotiate a complete resolution of the entire dispute, unless excused by the mediator from a particular conference.
At least 10 business days before the first substantive mediation conference, each party will submit to the mediator a written statement summarizing the background and present status of the dispute, including any settlement efforts to date.
The submission should include an analysis of the party's real interests and needs; this will help the mediator assist the parties in finding a solution that effectively addresses those interests. The parties are encouraged, but not required, to exchange the materials they submit to the mediator.
Efforts to reach a settlement shall continue until a written settlement is reached, the mediator concludes and informs the parties that further efforts would not be useful, or one of the parties or the mediator withdraws from the process.
If the parties fail to develop their own settlement terms, and if expressly requested to do so by both parties, the mediator may submit a final settlement proposal to the parties before terminating the procedure; or if qualified to do so, may give the parties an evaluation of the likely outcome of the case if it were tried to final judgment, subject to any limitations under application mediation rules, court rules, or ethical codes.
Thus, a mediator cannot offer a definitive evaluative assessment of the dispute without the parties' permission and without also being qualified to do so. Often such assessments can disrupt an otherwise effective mediation process if not provided at the parties' express request based upon a shared respect for the basis and authority of the mediator's assessment.
The mediator shall not serve as an arbitrator in the same or substantially related matter, unless the parties and the mediator otherwise agree in writing.
The parties may request the Center to arrange for entry of the mediated settlement agreement as an arbitral award, or request a court of competent jurisdiction to enter the settlement agreement as a judgment.
—US-China Business Mediation Center
Source: This is an excerpt from an article originally published in the July-Aug, 2005 .issue of the China Business Review.