Version 2 (Updated February 2022 )
- Application of these Rules
1.1 Where parties have agreed to refer a dispute to Tokiso for mediation, and no other Tokiso Rules are applicable1, the dispute shall be submitted to mediation in accordance with these Rules, subject to any amendments agreed to by the parties.
1.2 If the agreement between the parties’ records that the matter is referred to Tokiso for mediation, conciliation, any conciliatory process, or such similar terms, these Rules shall apply, notwithstanding the different terminology.
1.3 All references to Tokiso shall mean a Tokiso Director or a Tokiso employee mandated to administer mediations.
2.1 Any notice, including a notification, communication, or proposal, is deemed to have been received if it is delivered to a valid email address.
2.2 Where a valid email is not known or an email is not delivered, any notice, including a notification, communication or proposal may be delivered and is deemed to have been received if it is physically delivered to the addressee or if it is delivered at their habitual residence, place of business, or, if none of these can be found after making a reasonable inquiry, then at the addressee’s last-known residence or place of business.
2.3 A notice shall be deemed to have been received on the day it is delivered.
2.4 Tokiso will administer the mediation. All communication to the mediator is to be through Tokiso.
2.5 All communication to Tokiso is to be sent to firstname.lastname@example.org unless directed otherwise by Tokiso.
- The Commencement of Mediation
3.1 A party to a mediation agreement or a party to a dispute that intends to commence a mediation shall deliver a notice of mediation in writing to each other party to the mediation and Tokiso.
3.2 The notice of mediation shall contain or be accompanied by:
3.2.1 the names, address, telephone number, email and any other relevant contact details of the parties to the dispute and, if applicable, any representatives of any of the parties;
3.2.2 a copy of the relevant mediation clause or agreement; and
3.2.3 a brief statement of the nature of the dispute and the outcome sought.
3.3 The date of the commencement of the mediation shall be the date on which the request for mediation is received by Tokiso.
- Appointment of the Mediator
4.1 The parties may jointly agree on a mediator or agree on a procedure to appoint a mediator. The mediator must be a Tokiso accredited mediator.
4.2 Tokiso will appoint a mediator from the list of Tokiso accredited mediators if the parties to the dispute:
4.2.1 do not agree on a mediator within five business days from the date of commencement of the mediation;
4.2.2 do not agree on the procedure for the appointment of a mediator or such procedure fails to appoint a mediator;
4.2.3 appoint a mediator but the mediator is unable to accept the brief and parties do not agree on another mediator; or
4.2.4 request Tokiso to appoint a mediator.
4.3 The parties may provide agreed considerations on which Tokiso is to base a mediator appointment. In the absence of providing considerations, Tokiso may determine the required seniority and expertise of the mediator.
- Role of the Mediator
5.1 The mediator shall endeavour to assist the parties to settle the dispute by agreement.
5.2 The mediator shall not determine the dispute, recommend a solution to the dispute or advise a party on the merits of the dispute.
5.3 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 shall have no authority to impose a settlement on the parties.
5.4 The mediator is bound by Tokiso’s Code of Professional Conduct for Panellists applicable at the time of the mediation.
- The Mediation Process
6.1 The mediator shall have the discretion to conduct the mediation in such a manner as the mediator determines.
6.2 The parties shall abide by all decisions of the mediator regarding the process and conduct of the mediation.
6.3 The parties shall cooperate in good faith with the mediator in the conduct of the mediation.
6.4 The mediator may communicate through Tokiso with the parties orally or in writing, together or individually, and may convene a meeting or meetings at a physical venue, or on an online platform, to be determined by the mediator after consulting the parties.
- Termination of the Mediation
7.1 The mediation of the dispute shall terminate when:
7.1.1 the mediator receives written notice from a party stating that such party withdraws from the mediation, provided that no party shall withdraw from the mediation without first orally notifying the mediator and giving the mediator a reasonable opportunity to mediate on that party’s continued participation in the mediation;
7.1.2 the parties agree that the mediation shall terminate and inform the mediator that the mediation has concluded;
7.1.3 the parties receive written notice from the mediator stating that in the mediator’s opinion there is no reasonable prospect of a settlement and therefore the mediator terminates the mediation; or
7.1.4 the parties conclude a written agreement between themselves in which the parties set out the terms upon which the parties settle the dispute or any part thereof (“settlement agreement”), provided that the parties and mediator may agree to continue the mediation in respect of any part of the dispute that remains unsettled after the conclusion of the settlement agreement.
- Effect of the Mediation
8.1 Any agreement reached in the mediation will not be legally binding until it has been reduced to writing and signed by or on behalf of the parties.
8.2 If a settlement agreement is not reached in the mediation, the parties’ submission of the dispute to mediation shall not prejudice any of the parties rights.
9.1 The mediator may not disclose to any person (other than a party) any information first obtained during the mediation of the dispute without the prior written consent of the parties unless compelled by law to do so.
9.2 A party may not disclose to any person (other than the mediator or that party’s legal advisors) any information first obtained during the mediation of the dispute without the prior written consent of the disclosing party unless compelled by law to do so.
9.3 Where a party privately discloses to the mediator any information in confidence before, during or after the mediation, the mediator will not disclose that information to any other party or person without the consent of the party disclosing it.
9.4 The parties agree that they will not at any time before, during or after the mediation compel the mediator or Tokiso to give evidence in litigation, arbitration or any other process concerning information disclosed during the mediation and for the administration of the mediation.
9.5 Nothing in Rule 9 shall prevent a party from placing on record after the mediation any information that is substantially similar to information disclosed by that party during the mediation, provided that party does not state or imply that such information was stated or disclosed during the mediation.
- Reports and Certificates
10.1 Subject to Rule 10.2, the mediator shall provide a report and/or certificate if required by Statute, a Court of Law, a party’s procurement policy or another operational purpose, or by agreement of the parties. Such a report and/or certificate will confirm that the mediation took place, the names of the parties, attendance of the parties, the date of the mediation, a brief description of the dispute and whether the dispute was settled or not. No details of the discussions or the substance of the dispute shall be included in the report and/or certificate.
10.2 Where the mediation agreement provides that the mediation and/or the existence of the dispute itself is confidential, and there is no legal requirement for such a report and/or certificate, the mediator shall not issue a report or a certificate.
10.3 Any reports and certificates issued by a mediator shall be sent to all parties to the mediation.
11.1 Unless otherwise agreed by Tokiso in writing, the mediator’s fees shall be payable in full to Tokiso at the time that the mediator is appointed. Unless the parties agree otherwise, each party shall be liable to pay an equivalent pro-rata share of the mediator’s costs. If one party does not pay its equivalent share, any other party may pay the outstanding amount and recover it from the non-paying party.
11.2 The Parties are bound by Tokiso’s Standard Terms of Conditions of Service.
1 Tokiso has other Rules applicable to mediation and conciliation for certain projects and statutory cases.