Mediation Rules

Section I: Introductory Rules

Introductory Rules

Section I
Article (1): Definitions
1.1 The following words and phrases shall have the meaning assigned thereto unless the context indicates otherwise:
“Centre” or “OAC” means the Oman Commercial Arbitration Centre;
“Executive Committee” headed by the Chief Executive Officer of the Centre and the membership of two advisors;
“Mediation Agreement” means an agreement by the Parties to submit to mediation all or certain disputes which have arisen or which may arise between them; a Mediation Agreement may be in the form of a mediation clause in a contract or in the form of a separate contract;
“Mediator” includes one or more mediators to settle the disputes referred to mediation;
“Party” or “Parties” means the parties to a dispute whether two or more;
“Registrar” means the Registrar of the OAC;
“Request for Mediation” means an application to initiate mediation proceedings under the Mediation Rules; and
“Rules” means the Mediation Rules of the OAC;
1.2 Any pronoun in these Rules shall be understood to be gender-neutral and to include any natural or legal person. Words used in singular include the plural and vice-versa, as the context may require.

Article (2): Scope of Application

2.1 Where Parties have agreed in writing that their disputes shall be referred to mediation under the Rules, then such disputes shall be settled in accordance with these Rules subject to any modification as the Parties may agree to in writing.

2.2 These Rules shall govern the mediation proceedings and shall be considered as supplementary to any agreement referred to in Article 2.1 above.

Section II Commencement of the Mediation Proceedings

Section II
Commencement of the Mediation Proceedings

Article (3): Request for Mediation

3.1 A Party wishing to commence mediation pursuant to these Rules shall submit a written Request for Mediation to the Registrar through electronic mail, registered post, fax or Centre’s website. The Registrar shall notify all Parties of the receipt of the Request for Mediation and the date of such receipt.

3.2 The Request for Mediation shall include the following information:
a. names, addresses, telephone numbers, email addresses, if available, and any other contact details of the Parties to the dispute and of their representatives, if any;
b. reference to the Mediation Agreement invoked and a copy of the Mediation Agreement;
c. brief statement describing the nature of the dispute and the relief claimed;
d. any agreement or proposal related to the language of the mediation, the location of the mediation, and its duration.
e. nomination by all of the Parties of a Mediator or proposal as to the attributes of a Mediator; and
f. payment evidence of the requisite registration fee in accordance with Article 14.1(a) of these Rules.
3.3 Where there is an agreement making reference to the Rules, the date on which the complete Request is received by the Registrar shall, for all purposes, be deemed to be the date of the commencement of the mediation proceedings.

3.4 Where there is no agreement between the Parties to mediate under these Rules, any Party may request the Executive Committee to invite the other Party or Parties to participate in mediation in accordance with the Rules.

Article (4): Representation and Assistance

4.1 Any Party may be represented and/or assisted in the mediation proceedings by one or more legally valid authorized representatives and/or assistants appearing by name before the Centre and Mediator.
4.2 Until the Mediator`s appointment, the Registrar may request from any Party, in writing, the following:
a. proof of the authority granted by that Party to any representative and/or assistant designated in its Request to Mediation; and
b. names and addresses of all such Party’s representatives and/or assistants in the mediation.
4.3 After the appointment, the Mediator may request any Party to provide the above in any form they consider appropriate.
4.4 Following the Mediator’s appoitment, any intended change or addition by a Party to its representatives and/or assistants shall be notified promptly in writing to all other Parties, the Mediator and the Registrar.

Article (5): Place and Language of the Mediation

5.1 Unless the Parties have otherwise agreed, the Executive Committee may determine to conduct hearings and/or meetings at any place, in person or through electronic means of communication, or may invite the Mediator to do so after the Mediator has been appointed.

5.2 Mediation shall be conducted in the language or languages agreed by the Parties, and in case of disagreement, the Executive Committee shall determine the language in which the Mediation shall be conducted until the Mediator has been appointed.

Section III Duties and Responsibilities of the Mediator

Section III
Duties and Responsibilities of the Mediator

Article (6): Appointment of the Mediator

The Parties may agree to nominate one or more Mediators, or agree on a mechanism for the appointment, and in case of disagreement, the appointment shall take place in accordance with the following procedure:
a. the Registrar shall send to each Party an identical list of candidates. The list shall comprise the names of at least three candidates in alphabetical order. The list shall include or be accompanied by a statement of each candidate’s qualifications. If the Parties have agreed on any particular qualifications, the list shall contain the names of candidates that satisfy those qualifications.
b. each Party shall have the right to delete the name of any candidate to whose appointment it objects and shall number any remaining candidates in order of preference.
c. each Party shall return the marked list to the Registrar within seven (7) days after the date on which the list is received by it, unless that period of time is extended at the discretion of the Executive Committee. Any Party failing to return a marked list within that period of time shall be deemed to have assented to all candidates appearing on the list.
d. as soon as possible after receipt by it of the lists from the Parties, or failing this, after the expiration of the period of time specified in sub-paragraph 6(c), the Executive Committee shall, taking into account the preferences and objections expressed by the Parties, appoint a Mediator from the list.
e. the Executive Committee shall appoint the Mediator if the Parties fail to do so. The Executive Committee shall appoint another Mediator if a nominee is unable to carry out the role.

Article (7): Neutrality and Independence of the Mediator

7.1 When a person is approached in connection with his possible appointment as a Mediator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his neutrality or independence.
7.2 A Mediator, from the time of his appointment and throughout the mediation proceedings shall without delay disclose any such circumstances of conflict of interest.

7.3 The appointment of a Mediator shall be completed only upon the acceptance of his role in writing. The Mediator thus appointed shall submit, within seven (7) days after being notified of his nomination, a written declaration confirming his neutrality and independence.

Article (8): Role of the Mediator

8.1 The Mediator shall promote the settlement of the issues in dispute between the Parties in any manner that the Mediator believes to be appropriate, but he shall have no authority to impose a settlement on the Parties.

8.2 Where the Mediator believes that any issues in dispute between the Parties are not amenable to resolution through Mediation, the Mediator may propose procedures or means for resolving those issues having regard to the circumstances of the dispute that lead to the most efficient and cost effective settlement of those disputes. In particular, the Mediator may so propose:
a. an expert determination of one or more particular issues; or
b. arbitration.

Section IV The Mediation Process

Section IV
The Mediation Process

Article (9): Conduct of the Mediation Proceedings

9.1 The prospective Mediator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the mediation to be conducted expeditiously.

9.2 The Mediator and the Parties shall promptly discuss the manner in which the mediation shall be conducted, the methods of exchanging documents and submissions, and the mediation timetable.

9.3 The Mediator shall promptly provide the parties, after the discussions in Article 9.2, with a written note informing them of the manner in which the mediation shall be conducted.

9.4 In establishing and conducting the mediation, the Mediator shall be guided by the wishes of the Parties and shall treat them with fairness, justice and impartiality, and shall provide them with an equal opportunity to present their case.

9.5 Each Party shall act in good faith throughout the mediation.

9.6 The Mediator shall be free to meet and to communicate separately with a Party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other Party without the express authorization of the Party giving the information.

Article (10): Period of Mediation

The Mediator shall exert his best efforts to reach a settlement agreement during the period agreed upon. If no period is determined, the Mediator shall fulfill his mission in a period of no more than three (3) months, unless the Parties agree otherwise.

Article (11): Termination of Mediation Proceedings

11.1 Proceedings which have been commenced pursuant to the Rules shall terminate upon written confirmation of termination by the Registrar to the Parties after the occurrence of the following:
a. The signing by the Parties of a settlement agreement;
b. The notification in writing made to the Mediator by any Party that it no longer wishes to pursue the mediation;
c. The notification in writing by the Mediator to the Parties that, in the Mediator’s opinion, the mediation will not resolve the dispute between the Parties;
d. The notification in writing by the Registrar to the Parties that any time limit set for the proceedings, including any extension thereof, has expired;
e. The notification in writing by the Registrar to the Parties, not less than seven (7) days after the due date for any payment by one or more Parties pursuant to the Rules, that such payment has not been made; or
11.2 The Mediator shall promptly notify the Registrar of the signing of a settlement agreement by the Parties or of any notification given to or by the Mediator pursuant to Article 11.1 (b-c).

Article (12): Prior and Subsequent OAC Arbitration

12.1 When an OAC mediation is preceded by the submission of a Request of Arbitration pursuant to the OAC Arbitration Rules concerning the same dispute, there will be no registration fee payable for the mediation.
12.2 When an OAC arbitration is preceded by a Request for Mediation, pursuant to OAC Mediation Rules concerning the same dispute, the filing fee paid for the mediation shall be credited to the administrative fees of the arbitration.

Costs of Mediation

Section V
Costs of Mediation

Article (13): Deposits of Financial Guarantees

13.1 Unless otherwise directed by the Mediator, the Registrar will require the Parties to deposit in advance of the mediation proceedings such sum of money as the Registrar, in consultation with the Mediator, deem appropriate to cover the costs and expenses of the mediation. The Registrar may subsequently request the Parties to make supplementary deposits, if necessary.
13.2 Upon termination of the mediation, the Registrar shall issue a final accounts statement to the Parties of any deposits made and return any unexpended balance to the Parties, or require the payment of any amount owing from the Parties.

Article (14): Costs

14.1 The term “Costs” includes the following:
a. a non-refundable registration fee of OMR 100 to be paid by each Party with the submission of the Request.
b. the administrative fees which shall be equal to 20% of the administrative fees indicated in the Table of Fees (1) of the OAC Arbitration Rules.
c. the fees of the Mediator which shall be equal to 20% of the sole arbitrator fee indicated in the Table of Fees (2) of the Arbitration Rules. And in the case more than one Mediator has been appointed, the fees shall be equal to 20% of the panel of three members fee indicated in the Table of Fees (2).
d. reasonable travel expenses and any other expenses incurred by the Mediator.
14.2 The administrative fees, the mediator fees and any other expenses shall be paid equally by the Parties.
14.3 Where the amount in dispute is not stated, the administrative fees may be fixed by the Executive Committee at its discretion, taking into account all the circumstances of the case, including indications regarding the value of the dispute, but these fees shall not exceed OMR 10,000.
14.4 The Costs shall be paid by the Parties to the Centre with a bank credit card or through wire transfer with no charges to the Centre.

General Provisions

Section VI
General Provisions

Article (15): Confidentiality

15.1 No recording of any kind shall be made of any meetings of the Parties with the Mediator unless otherwise agreed by the Parties.

15.2 Each person involved in the mediation, including, in particular, the Mediator, the Parties and their representatives and advisors, any independent expert and any other persons present during the meetings of the Parties with the Mediator, shall respect the confidentiality of the mediation and may not, unless otherwise agreed by the Parties and the Mediator, use or disclose to any outside party any information concerning, or obtained in the course of the mediation. Each such person shall sign an appropriate confidentiality undertaking prior to taking part in the mediation.

15.3 Unless otherwise agreed by the Parties, each person involved in the mediation shall, on the termination of the mediation, return to the Party providing it, any brief, document or other materials supplied by a Party, without retaining any copy thereof. Any notes taken by a person concerning the meetings of the Parties with the Mediator shall be destroyed on the termination of the mediation.

15.4 Unless otherwise agreed by the Parties, the Mediator and the Parties shall not introduce as evidence or in any manner whatsoever in any judicial or arbitration proceeding:
a. any views expressed or suggestions made by a Party with respect to a possible settlement of the dispute; and
b. any admissions made by a Party in the course of the mediation.

Article (16): Exclusion of Liability

Save for intentional wrongdoing or gross negligence, the Parties waive, to the fullest extent permitted under the applicable law, the Mediator, the Executive Committee, the Registrar, and OAC (including all its officers and employees), of any liability to any Party for any negligence, act or omission in connection with any mediation administered by the OAC under these Rules, except to the extent that such a limitation of liability is prohibited by the applicable law.

Article (17): Language of the Rules

In the event of any discrepancy or inconsistency between the Arabic version of these Rules and any other languages in which these Rules are published, the Arabic version shall prevail.

Article (18): Final Provisions

18.1 Where, prior to the date of the entry into force of the Rules, the Parties have agreed to refer their dispute to the Rules, they shall be deemed to have referred their dispute under the OAC Mediation Rules.
18.2 Unless all of the Parties have agreed otherwise in writing or unless prohibited by applicable law, the Parties may commence or continue any judicial, arbitral or similar proceedings in respect of the dispute, notwithstanding the proceedings under the Rules.
18.3 Unless all of the Parties agree otherwise in writing or unless the applicable law states otherwise, a Mediator shall not act nor shall have acted in any judicial, arbitral or similar proceedings relating to the dispute which is or was the subject of the proceedings under these Rules, whether as a judge, an arbitrator, an expert or a representative or advisor of a Party.
18.4 In all matters not expressly provided for in these Rules, the Centre and the Mediator shall act in the spirit of the Rules.

Annexure: Model Mediation Clauses

1. Future Disputes

For contracting Parties who wish to have future disputes referred to mediation under the OAC Mediation Rules, the following clauses are recommended:

Mediation

“In the event of any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, the parties agree to refer the dispute to be amicably resolved by Mediation in Oman, administered by the Oman Commercial Arbitration Centre (OAC), in accordance with the Mediation Rules of Oman Commercial Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.”

Mediation and Arbitration

“In the event of any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, the parties agree in the first instance to refer the dispute to be amicably resolved by Mediation in Oman, administered by the Oman Commercial Arbitration Centre (OAC), in accordance with the Mediation Rules of Oman Commercial Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.

If the dispute is not settled by Mediation within [……] days of the filing of the Request for Mediation, or within such further period as the parties may agree in writing, the dispute shall be referred to and finally settled by arbitration under the Arbitration Rules of the OAC, which Rules are deemed to be incorporated by reference into this clause.

The language to be used in the mediation and in the arbitration shall be [……]

The number of arbitrators shall be [one/three]

The seat, or legal place, of the arbitration shall be [Muscat, Oman]

The governing law of the contract shall be the substantive law of […….]”

2. Existing Disputes

If a dispute has arisen, but there is no agreement between the Parties to mediate, or if the Parties wish to vary a dispute resolution clause to provide for OAC Mediation, the following clauses are recommended:

Mediation

“All disputes having arisen out of or in connection with this contract, including any question regarding its existence, validity or termination, and notwithstanding the commencement of any other proceedings, the parties hereby agree to refer these disputes to be amicably resolved by Mediation in Oman, administered by the Oman Commercial Arbitration Centre (OAC), in accordance with the Mediation Rules of Oman Commercial Arbitration Centre.

Mediation and Arbitration

” All disputes having arisen out out of or in connection with this contract, including any question regarding its existence, validity or termination, the parties agree in the first instance to refer the dispute to be amicably resolved by Mediation in Oman, administered by the Oman Commercial Arbitration Centre (OAC), in accordance with the Mediation Rules of Oman Commercial Arbitration Centre, which Rules are deemed to be incorporated by reference into this clause.