COMMISSION ON

ARBITRATION
AND ADR

MEDIATION
GUIDANCE
NOTES

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FOREWORD

MEDIATION
GUIDANCE NOTES
This booklet is a practical companion to the ICC
Mediation Rules. Its purpose is to offer guidance on
issues that deserve attention when choosing and
organizing mediations. Helpful information will be found
on the many administrative and procedural questions
which a party may wish to consider when preparing
mediation proceedings on its own or in discussions with
the other party and the mediator. Mediations may be
conducted in various ways depending on the
backgrounds of the parties, their advisors and the
mediator and the nature of the dispute. In keeping with
the spirit of mediation, the Mediation Guidance Notes do
not dictate solutions, but encourage parties to work out
the best arrangements for their particular case in light of
common mediation practices and the flexibility offered
by the ICC Mediation Rules.
Although a stand-alone procedure, mediation can also
be combined with other dispute resolution procedures as
part of a tiered dispute resolution process. Increasingly,
mediation is considered as a useful and even an
indispensable first step in situations where parties are
keen on reaching a solution that upholds their mutual
business or contractual interests. It can also be used once
arbitration has commenced if parties wish to seek a
settlement. For these reasons, the Mediation Guidance
Notes also address the relationship between mediation
and arbitration.
The Mediation Guidance Notes result from work and
consultations conducted within the ICC Commission on
Arbitration and ADR, whose members are dispute
resolution practitioners and specialists from some ninety
countries worldwide. The range of legal and cultural
traditions represented within the Commission allows it to
transcend local differences and create products that
offer a basis for international understanding between
contracting parties and dispute resolution professionals.

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FOREWORD

The ICC Mediation Rules to which these Mediation

Guidance Notes relate are published with the ICC
Arbitration Rules in hard copy (ICC Publication 865,
available in several languages from the ICC) and online
(at www.iccwbo.org and in the ICC Dispute Resolution
Library at www.iccdrl.com). ICC mediations are overseen
by the ICC International Centre for ADR, which is the only
body empowered to administer proceedings under the
ICC Mediation Rules. The Centres experience and
expertise help to ensure that proceedings progress
efficiently, transparently, fairly and are respectful of the
parties wishes.

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TABLE OF CONTENTS

WHAT IS MEDIATION?

04

WHY MEDIATION?

05

MEDIATION SESSIONS

06

PREPARATION FOR MEDIATION SESSIONS

08

Attendees 08
Procedural agreements time and language
09
Logistical arrangements
09
Information and documents
09
Mediation agreement
10
Applicable law
10
AUTHORITY

10

CASE SUMMARIES AND DOCUMENTS

11

RELATIONSHIP BETWEEN MEDIATION AND

ARBITRATION PROCEEDINGS

13

MISCELLANEOUS 16
Co-mediation 16
Independent expert
16
Legal representation
16
Costs
17
Recommended terms of settlement
17
Combining mediation with other
settlement procedures
17

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MEDIATION GUIDANCE NOTES

WHAT IS MEDIATION?
1 
For the purpose of the ICC Mediation Rules
(the Rules), mediation is a flexible settlement
technique, conducted privately and confidentially, in
which a mediator acts as a neutral facilitator to help
the parties try to arrive at a negotiated settlement of
their dispute. The parties have control over both the
decision to settle and the terms of any settlement
agreement.
2 
In these Guidance Notes,1 the term mediation
refers to the entire proceedings and the term
mediation session refers to one or more sessions
during the proceedings when the mediator and the
parties meet together. 2 Further information on
mediation sessions is set out below, from paragraph
11 onwards.
3 Since mediation is flexible, the mediation procedure
to be used can be adapted to the needs of the parties,
including their cultural and legal backgrounds, and
the specifics of the dispute. The manner in which the
procedure is to be conducted will be the subject of
the discussion provided for in Article 7(1) of the
Rules. As provided for in Article 7(3) of the Rules, in
establishing and conducting the mediation, the
mediator is guided by the wishes of the parties and
treats them with fairness and impartiality.
4 
During the mediation, the mediator may hold
meetings or conference calls with all of the parties
present and may also hold separate meetings or calls
with each of the parties alone.

1 These Mediation Guidance Notes provide guidance regarding the

process of mediation. They do not offer guidance on other
settlement procedures that parties may agree to use under the
ICC Mediation Rules.
2 Internationally, the terms conciliation and mediation are used
sometimes to describe processes that are substantively the same
and sometimes to describe processes that are similar but have
some differences. Where there are substantive differences, there
is no uniform understanding of what those differences are.
Mediation as referred to in the ICC Mediation Rules and these
Mediation Guidance Notes is a concept sufficiently broad to
encompass both mediation and conciliation.

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5 
In the course of the mediation, the parties can
exchange settlement proposals, which may lead to a
negotiated agreement. Such proposals can be made
directly between the parties or through the
mediator.
6 
Since control over the decision to settle and the
terms of any settlement agreement remains with the
parties, the mediator has no power to impose a
settlement on the parties.
WHY MEDIATION?
7 
Mediation takes significantly less time than
arbitration or litigation and involves much lower
costs.
8 The mediation process enables the parties to reach
agreement on solutions which could not be achieved
through an adjudicative process such as arbitration
or litigation and which would not therefore be
available through the rendering of an arbitral award
or a court decision. For example, the parties
preferred solution to a contractual dispute may be to
renegotiate the terms of the contract. The
renegotiation of a contract is possible in mediation,
whereas there is unlikely to be any legal basis for
seeking such relief in arbitration or litigation.
9 
Whilst the adjudicative processes focus on the
parties legal rights, mediation helps parties also to
take into consideration commercial and other
interests. This is an important difference between
mediation and arbitration or litigation. The mediation
process can help parties acquire a better
understanding of each others needs and interests
so that they can look for a solution which
accommodates these needs and interests as far
aspossible.

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MEDIATION GUIDANCE NOTES

10 Mediation can be a particularly useful tool when the

parties in dispute have an ongoing relationship (such
as a joint venture or long-term supply contract).
Mediation is likely to be less disruptive to that
relationship than litigation or arbitration.
MEDIATION SESSIONS
11 At the core of most mediations will be one or more
mediation sessions which are attended by all parties,
their advisers (if any) and the mediator. The number
of sessions, their duration and the purpose of each
session can be tailored to the requirements of the
case and the approach favoured by the mediator
and the parties. It is possible, even in large cases, for
there to be just one mediation session, which may be
scheduled to last a full day.
12 During mediation sessions, the mediator may meet
with the parties together (a joint meeting), or meet
with one or more parties without other parties being
present (a private meeting). The mix between joint
meetings and private meetings will depend upon the
requirements of the case and the approach favoured
by the mediator, the parties and their advisers. This is
something that may form part of the discussion
between the mediator and the parties provided for
in Article 7(1) of the Rules.
13 Typically, a private meeting or discussion between
the mediator and a party will be confidential. The
mediator will agree that any new information
discussed during that meeting will not be disclosed
by the mediator to any other party without express
permission. However, any party may specifically ask
the mediator to relay new information to another
party, and the mediator may seek permission to
disclose information where such disclosure is likely
to assist the parties in resolving their dispute.

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14 
During all meetings (both joint and private) the
mediator will seek to create an environment
conducive to constructive negotiations, but the
purpose of the meetings may vary. Some may be
used for the parties and/or their lawyers to make
presentations to each other. Others may be used for
the mediator to explore the background to the
dispute, identify the interests and needs of each of
the parties for their mutual benefit, and consider any
alternative options for settlement. Later in the
process, meetings may be used for bargaining, with
offers and counter-offers being exchanged either
directly or via the mediator. If agreement is reached,
then the meetings may be used to draft3 and agree
upon the terms of a written settlement agreement.
15 In some cases, it may be appropriate for there to be
more than one mediation session a few days or
weeks apart. It may be helpful for the parties to meet
first to discuss and make presentations to each other
regarding the dispute and to meet again, at a later
date, to negotiate a resolution of the dispute. This
allows time between the meetings, which may be
useful for different reasons. For example, it may be
used for the exchange of further information or
documents, for specific investigation to be carried
out, or for reflection or conferring with colleagues
and advisers.
16 
In other cases it may be appropriate for a single
session to last two or more consecutive days. This
may be the case where there are several parties to
the dispute and more time is needed for the mediator
to meet with each of them.
17 
In each case, the parties, their advisers and the
mediator should consider what type of mediation
sessions will be most useful in achieving a successful
and efficient resolution of the dispute.

3 Where legal advisers are present, it is common for those advisers

to take primary responsibility for the drafting of the settlement
agreement, seeking input from their clients as appropriate. The
mediator will continue to facilitate discussions regarding the
draft, as necessary.

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MEDIATION GUIDANCE NOTES

18 
If no agreement is reached at the end of the
mediation session(s), the mediator may, with the
agreement of the parties, continue to work with
them over the following days or weeks to assist them
with their continuing negotiations. This further
assistance may be provided in any way that is
convenient and practical, for example through
follow
up
telephone
discussions,
emails,
videoconferences or meetings.
PREPARATION FOR MEDIATION SESSIONS
19 
Preparation for any mediation session is a
responsibility shared by the parties, their advisers
and the mediator. To this end, Article 7(1) requires
the parties and the mediator to discuss the manner
in which the mediation is to be conducted. The
mediator may further assist the parties with their
preparation through telephone discussions and/or
meetings prior to the mediation session.
20 In advance of any mediation session, the following
matters may need to be addressed:
Attendees
20.1 Have all the parties who need to be involved in
the negotiation of a resolution of the dispute
agreed to attend the session? If not, should other
parties be invited to participate?
20.2 
Which individuals will attend the mediation
session on behalf of each party? In this regard,
see paragraphs 2123 below on the importance
of settlement authority.
20.3 Will the parties be represented by legal or other
advisers at the session (see also paragraph 38
below)?

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ICC Publication 870-0 ENG

20.4 Will any experts retained on behalf of the parties

attend the session and if so, what role will they
have?
20.5 
Does everyone who is attending the session
understand the nature of the mediation process
and the purpose of the session?
Procedural agreements time and language
20.6 
Is the period for conducting the mediation
(before recourse to arbitration or litigation)
limited by the relevant agreement to refer the
dispute to mediation under the Rules? If so, what
is the time limit and is it appropriate to extend it
by agreement between the parties?
20.7 Is there an agreement as to what language or
languages will be used at the mediation session?4
Logistical arrangements
20.8 Have the date, venue, start and finish time and
other administrative arrangements for the
session been agreed?
20.9 
Does the venue selected have the necessary
facilities? Ideally, each party should have its own
room and another room large enough to hold
joint meetings with all parties present should also
be available.
Information and documents
20.10 How and when will the parties provide each other
and the mediator with information regarding
their respective positions and interests in relation
to the dispute and any relevant documents? In
this regard, see paragraph 26 below regarding
the importance of exchanging relevant
information in good time before a mediation
session.

4 To the extent that agreement cannot be reached on the place of

physical meetings or the language to be used at those meetings,
Article 4 of the Rules provides for these matters to be determined
by the ICC International Centre for ADR or the mediator so that
the mediation can proceed.

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MEDIATION GUIDANCE NOTES

Mediation agreement
20.11 Is it appropriate for the mediator and the parties
to sign a mediation agreement setting out any
agreed procedural matters not covered by the
Rules (e.g. an agreement that no binding
settlement agreement shall have been reached
between the parties unless and until the terms of
the agreement have been reduced to writing and
signed by authorized representatives of each
party)?5
Applicable law
20.12 Does the law of the place where the mediation
sessions are taking place, or any other applicable
law (e.g. the substantive law of the mediation
agreement or of the country where any
arbitration or litigation proceedings may take
place), contain any mandatory provisions
regarding the conduct of the mediation? For
example, some countries may have rules
regarding the qualifications which a mediator is
required to have.
AUTHORITY
21 One of the advantages of mediation is that it enables
parties to reach a binding agreement which resolves
their dispute. Ideally, such an agreement is executed
at the conclusion of a mediation session, thereby
providing certainty to all parties that a binding
agreement has been reached.
22 In order for a binding agreement to be executed at a
mediation session, it is generally necessary for
someone with authority to negotiate and then to
sign such an agreement to be present at the session.

5 Where the parties and the mediator wish to enter into a mediation
agreement, it is recommended that a draft of such agreement be
sent to the ICC International Centre for ADR, so that the Centre
can ensure that the provisions of the proposed agreement are
consistent with the Rules and the Centres practices in
administering the proceedings.

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23 At all mediation sessions, and in particular at any

session at which it is anticipated that terms of
settlement may be negotiated, each party should
therefore ideally be represented by a lead negotiator
with full and unqualified authority to settle the
dispute. If this is not possible, in advance of the
mediation session a party should inform the
mediator and the other parties (either directly or
through the mediator) of any limitation on authority
to settle (e.g. where any settlement will need to be
ratified by a board of directors, a ministerial
committee or an insurer). This will allow the mediator
to discuss with the parties in advance of the
mediation session how to address the limitation on
authority in a way which minimizes any adverse
effect on the prospects of a settlement agreement
being concluded.
CASE SUMMARIES AND DOCUMENTS
24 Each of the parties needs to understand every other
partys views on the matters in dispute that are to
be discussed at a forthcoming mediation session.
This enables each party to undertake its own risk
analysis and consider possible settlement options in
advance. To this end, it is common for parties, prior
to the mediation session, to exchange short papers
(sometimes called position papers, mediation
statements or case summaries) in which they set out
the background to the dispute, the issues, the
negotiation history and their positions. The mediator
is also provided with these case summaries as a
source of information on the background to the
dispute.

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MEDIATION GUIDANCE NOTES

25 
One of the advantages of mediation is that it
generally does not require numerous documents to
be exchanged or supplied to the mediator. However,
in addition to the case summaries, it is important
that each party receives copies of any documents
which another party considers to be of importance
for the mediation. Such documents are commonly
provided with the case summaries (a single lever
arch file of documents is often sufficient). After
reading those case summaries, the mediator may, in
the course of discussions held with the parties in
advance of the mediation session, help the parties
identify any additional information or documents
that it might be helpful to exchange.
26 If case summaries and documents are exchanged
sufficiently far in advance of a mediation session,
each party will have time to properly digest the
information and prepare for the session. This helps
avoid difficulties arising during the mediation
session as a result of late disclosure of information
and a partys consequent inability (or unwillingness)
to take such information into account in the
negotiations.
27 A party may wish to share information in confidence
with the mediator in advance of the mediation. This
information may, for example, relate to particular
needs or interests that the party does not wish to
disclose to the other party in advance of the
mediation session. Such information can be
provided in confidence to the mediator either orally
or in a confidential paper which is sent to the
mediator on the express understanding that the
information in the paper is not to be disclosed by the
mediator to any other party. The mediator may invite
all parties to provide such confidential papers if the
mediator considers this helpful to the process.

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RELATIONSHIP BETWEEN MEDIATION AND

ARBITRATION PROCEEDINGS
28 
Mediation under the Rules may take place either
before arbitration (or litigation) proceedings have
been commenced, or in the course of those
proceedings.6
29 
Where mediation takes place in the course of
arbitration proceedings, it may be appropriate for
the arbitration to be stayed to allow time for
conducting the mediation (such a stay or pause in
the proceedings is sometimes referred to as a
mediation window). This enables the parties to focus
on the mediation without being distracted by the
need to take steps in the arbitration and incurring
the costs of those steps when a settlement may be
imminent. In other cases, the parties may prefer to
conduct the mediation without requiring a stay or
pause in the arbitral proceedings.
30 The suggestion that mediation be used during the
arbitration proceedings may be made by one of
the parties. Whether or not it is helpful to build a
mediation window into the timetable for the
arbitration proceedings and, if so, when that
window should occur is also a topic which may be
discussed between the parties and the arbitral
tribunal at the first and subsequent case
management conferences provided for in Article 24
of the ICC Arbitration Rules.

6 Mediation can even take place after arbitration or litigation

proceedings have concluded. For example, this may arise after an
award has been made but prior to the outcome of enforcement
proceedings or a challenge to the award before a national court,
or after a court judgment has been issued and pending an appeal
against that judgment.

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MEDIATION GUIDANCE NOTES

31 Where mediation takes place before arbitration (or

litigation) proceedings have been commenced, the
parties may agree that the expiry of limitation or
prescription periods during the mediation process
shall not prevent a party from initiating arbitration or
litigation proceedings in relation to the dispute.
Applicable law may also contain provisions to this
effect, or may provide that limitation periods will not
expire whilst mediation proceedings are pending.
32 The ICC publishes various standard clauses referring
to the ICC Mediation Rules.7 Clause D creates an
obligation to refer a dispute to the ICC Mediation
Rules, followed by ICC arbitration if required. When
using Clause D, parties may wish to consider whether
they do or do not want to have access to the
ICC Emergency Arbitrator Provisions during the
mediation process. Standard variations to Clause D
are provided in order to clarify the parties choice in
this respect.
33 
As provided for in Article 9 of the Rules, unless
otherwise agreed by the parties or required by
applicable law, the mediation (but not the fact that it
is taking place, has taken place or will take place) is
private and confidential. Consequently, as set out in
Article 9(2) of the Rules, documents, statements or
communications which are submitted by another
party or by the mediator in or for the mediation
proceedings may not be produced as evidence in
any arbitration, litigation or similar proceedings,
unless they can be obtained independently by the
party seeking to produce them in those proceedings.
The same applies to views expressed, suggestions
made regarding settlement, or any admissions made
by another party in the mediation.

7 The standard clauses can be found in ICC Publication 865

containing the ICC Arbitration Rules and the ICC Mediation Rules,
on the ICC website (www.iccwbo.org) and in the ICC Dispute
Resolution Library (www.iccdrl.com).

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34 In the course of an arbitration, the parties may agree

that they would like a sole arbitrator or a member of
a tribunal (usually the chairman) to assist the parties
in negotiating a settlement of their dispute by acting
as a mediator. The parties may further agree that if
the mediation does not produce a settlement of all
issues in dispute in the arbitration, then the mediator
may return to the role of arbitrator and proceed to
make or participate in the making of an award in the
arbitration. This practice is quite common in some
jurisdictions, but used rarely, if at all, in others. In
those jurisdictions where it is rarely used, a common
concern is that if, while acting as mediator, an
arbitrator meets in private with one party without
all other parties present, or otherwise acquires
information in confidence from one party which is
not shared with all other parties, the rules of due
process will not have been respected. A
consequence might be that the arbitrator is
challenged, that a subsequent award made by the
arbitrator is susceptible to being challenged or that
its enforceability is impaired. Because of the
potential risks in some jurisdictions, Article 10(3)
allows a mediator to act as an arbitrator in the same
dispute only when all of the parties have consented
thereto in writing. In any event, parties and their
advisers may wish to consider the pros and cons
ofusing an arbitrator as mediator, and the steps that
need to be taken to minimize the risk of jeopardizing
the arbitral process and the enforceability of any
award.
35 
Where the parties agree terms of settlement
through mediation proceedings conducted in the
course of arbitration proceedings, they may be able
to record the terms of settlement in a consent award
pursuant to Article 32 of the ICC Arbitration Rules.
Such a consent award may be of assistance where,
for example, one or more parties wishes to be able
to enforce the settlement agreement as an
arbitralaward.

15

MEDIATION GUIDANCE NOTES

MISCELLANEOUS
Co-mediation
36 It may be appropriate for two or more mediators to
be appointed and to work together on the same
matter. This is often referred to as co-mediation.
Comediation may be used where there are several
parties involved in the dispute, or where the parties
wish to have the benefit of mediators from different
cultural backgrounds or with different expertise and
experience.
Independent expert
37 It may be appropriate, with the agreement of the
parties, for the mediator to be assisted by an
independent expert who can advise the mediator on
technical issues which it is important for the
mediator to understand in assisting the parties to
resolve their dispute.
Legal representation
38 In the Rules, there is no requirement or expectation
that parties will be represented by lawyers (either
inhouse or external). However, it is common,
particularly in cross-border disputes of the type that
are typically referred to mediation under the Rules,
for lawyers to assist parties in some or all parts of the
mediation process.

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Costs
39 Article 6(6) of the Rules provides that, unless agreed
otherwise in writing by the parties, all deposits
requested and costs fixed in respect of the mediation
proceedings shall be borne by the parties in equal
shares. Article 6(7) provides that a partys other
expenditure shall remain the responsibility of that
party, unless otherwise agreed by the parties. There
may be instances where the parties agree to vary
these default provisions. For example, in advance of
the mediation, one party may agree in any event
to bear all costs of the mediation process in order
to encourage a counterparty to participate.
Alternatively, the parties may agree that, in the event
that the dispute is not settled through the mediation,
the costs of the mediation should be allocated
between the parties by the arbitral tribunal or court
in any subsequent arbitration or litigation. The costs
of the mediation may also be allocated differently
under the terms of any settlement agreement
arrived at through the mediation.
Recommended terms of settlement
40 
Without imposing terms of settlement on the
parties, the mediator may, if requested by all parties,
recommend terms of settlement for their
consideration.
Combining mediation with other settlement
procedures
41 
The parties and the mediator may agree that in
certain circumstances (e.g. where a settlement
agreement has not been arrived at after a certain
period of time) the parties may jointly request the
mediator to provide a non-binding evaluation of the
merits of the dispute in order to assist them in
reaching a negotiated settlement agreement.

17

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ICC COMMISSION ON ARBITRATION AND ADR

The ICC Commission on Arbitration and ADR is the ICCs
rule-making and research body for dispute resolution
services and constitutes a unique think tank on
international dispute resolution. The Commission drafts
and revises the various ICC rules for dispute resolution,
including arbitration, mediation, experts and expertise,
and dispute boards. It also produces reports and
guidelines on legal, procedural and practical aspects of
dispute resolution. In its research capacity, it proposes
new policies aimed at ensuring efficient and costeffective dispute resolution, and provides useful
resources for the conduct of dispute resolution. The
Commissions products are published regularly online, in
the ICC International Court ofArbitration Bulletin and as
individual booklets.
The Commission brings together experts in the field of
international dispute resolution from all over the globe
and from numerous jurisdictions. It currently has over
600 members from some ninety countries. The
Commission holds two plenary sessions each year,
at which proposed rules and other products are
discussed, debated and voted upon. Between these
sessions, the Commissions work is often carried out in
smaller task forces.
The Commission aims to:
P
 romote on a worldwide scale the settlement of
international disputes by means of arbitration,
mediation, expertise, dispute boards and other forms
of dispute resolution.
P
 rovide guidance on a range of topics of current
relevance to the world of international dispute
resolution, with a view to improving dispute
resolution services.
C
 reate a link among arbitrators, counsel and users to
enable ICC dispute resolution to respond effectively
to users needs.

19

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ICC Commission on Arbitration and ADR

www.iccwbo.org/policy/arbitration
[email protected]
T +33 (0)1 49 53 30 43
F +33 (0)1 49 53 57 19

ICC Publication 870-0 ENG

ISBN 978-92-842-0224-9