REGULATIONS FOR MEDIATIONS AT CAESP – ARBITRATION COUNCIL OF THE STATE OF SÃO PAULO
I – PRELIMINARY PROVISIONS
- According to CAESP’s Statute, it is hereby established that:
the social and statutory purposes of CAESP include, among others, operational management of Mediation and Arbitration procedures, including their planning, direction, control and organization, ensuring that procedures are properly executed, in accordance with the provisions herein;
- b) these regulations accept and incorporates general principles of the Extrajudicial Methods of Conflict Resolution (MESC´s), especially for Mediation.
- c) CAESP’s Mediation Regulations are fully known and accepted by the parties;
- d) these regulations may be altered, and the valid version will be the one in force at the time of the beginning of the Mediation sessions.
- CAESP has three governing bodies, all of them having an advisory authority: Executive Board, Technical Committee and Ethics Committee.
- In the cases non-foreseen in these regulations, the committee in charge will make the necessary decisions for the proper conduction of the Mediation meetings;
- Mediation is the means through which are conducted meetings with the parties that present a controversy. Meetings are coordinated by one or more mediators, aiming at the solution of the conflict.
- Any controversy of a civil or commercial nature might be taken to Mediation through a request made by any party to CAESP for it to manage the procedure.
- CAESP will analyze if the subject may be resolved through Mediation. If not, the institution will not proceed with the request.
II – INSTITUTION OF MEDIATION
- The party interested in proposing the Mediation procedure shall send a request in writing to CAESP.
- After the analysis of the documentation by the Legal Department, the requesting party shall pay the fees to CAESP according to the Fee’s Chart in force.
- CAESP shall notify the requested party in writing and inform that there is a Mediation request filed at the institution, giving a deadline of 5 (five) calendar days from the date of receipt of the notice to accept or not the Mediation Procedure.
- After the Requested party has accepted to participate in the Mediation, CAESP shall send to both parties the suggestion for a Mediator, among those who are registered on CAESP’s list of Mediators, along with their résumé, giving a deadline of 5 (five) calendar days, from the date of receipt of the referral, to accept or reject such mediator.
- In case there is no consensus between the parties about the referral of the mediator who will work in the procedure, CAESP shall make a referral among the mediators registered on its list.
- Once the mediator has been accepted by the parties, he or she will be notified to say if they agree with the referral or not.
- The mediator shall fill out the Conflict of Interests and Availability Questionnaire, within 5 (five) days, and will therefore be appointed.
- According to the complexity of the controversy, the Mediator might recommend co-mediation.
- Once the co-mediation is accepted, the chosen Mediator shall be responsible for appointing the co-mediator.
III – ABOUT THE MEDIATION PROCEDURE
- After the appointment of the Mediator, the first Mediation meeting shall be scheduled. During this meeting, the mediated parties, their accompanying parties and the Mediator shall define the directives of the procedure by signing the Mediation Agreement.
- The Mediation Agreement shall contain:
- a) the identification of the mediated parties and of the Mediator;
- b) the rules of the procedure, determined in common agreement between the parties;
- c) qualification of the representatives of the mediated parties, if any;
- e) costs and payment conditions of the Mediation;
- f) date of beginning, number of mediation meetings and respective dates and period for conclusion of the procedure;
- With the consent of the mediated parties, the mediator might have separate meetings with each party, respecting the confidentiality expected for these circumstances.
- The mediator, or any of the mediated parties, shall be able to interrupt the mediation at any time, if they consider that it is no longer interesting to continue the procedure.
IV – ABOUT THE MEDIATOR
- The list of Mediators registered at CAESP is composed by skilled professionals who have been duly trained in Conflict Mediation.
- In the performance of their function, the mediator shall act with impartiality, independence, competency, diligence and confidentiality.
- The mediator might, except if otherwise provided by the mediated parties:
- a) increase or reduce any stated period;
- b) request the mediated parties to submit all technical and legal information necessary to support the good course of the Mediation meetings.
- A mediator that has acted as such shall be prevented from acting as an arbitrator, in case the conflict is eventually submitted to arbitration.
V – COMPLETION OF THE MEDIATION PROCEDURE
- If the agreement between the mediated parties is fruitful, the mediator shall draft the will write the Deed of Agreement that it will be signed by all the participants and by two witnesses.
- The mediation procedure will be concluded:
- a) with the signature of the Deed of Agreement by mediated parties and two witnesses;
- b) through a statement by the mediator reporting the inexistence of elements of interest for the continuity of the mediation;
- c) through a joint statement by the mediated parties, directed to the mediator, communicating the decision to conclude the mediation;
- d) through a statement in writing from one mediated party to the other, with a copy to the mediator, communicating the decision to conclude the mediation.
VI – ABOUT THE COSTS
- The Chart of Costs and Fees for Mediators will be made available directly by CAESP, and will also be published on its website www.caesp.org.br.
- The initial costs of the Mediation procedure, as well as the initial fee of the Mediator, shall be the responsibility of the Requesting Party.
- The costs relating to CAESP must be deposited by the Requesting party, after the analysis of the Mediation request.
- The Mediator will receive 2 (two) hours in advance, in accordance with the value of the Mediators fee listed on CAESP’s Fees Chart.
- Forty-eight hours after the appointment of the Mediator, the 2 (two) initial hours shall be deposited.
- The mediation works shall not begin before the full deposit of the Mediator’s fee.
- At the meeting for the signature of the Mediation Agreement, the payments conditions for other expenses shall be agreed upon, as well as any reimbursement to the Requesting Party of the expenses already made so far.
- After the beginning of the Mediation Procedure, the Mediator shall submit the report of hours worked every 15 (fifteen) days, and these hours shall be paid within 48 (forty-eight) hours after the submittal of the charge.
- Once the payment of the costs has been deposited to CAESP, the costs shall only be reimbursed in case the institution does not accept to manage the Mediation procedure.
VII – GENERAL PROVISIONS
- The mediation procedure is confidential, except for the cases foreseen in law or by express agreement of the parties.
- The information relating to the mediation procedure are confidential, and the mediator, the parties or anyone acting in the mediation is forbidden to disclose facts, propositions and any other information obtained during the mediation to third parties, or being asked or compelled to do so, even in a further arbitration procedure or lawsuit.
- After the conclusion of the mediation procedure, the documents submitted by the parties shall be returned to the respective mediated parties.
- For the good functioning of the Mediation institute and as long as the laws in force are respected, CAESP’s Executive Board, after having heard the other Committees and if it is convenient, might make exceptions and/or alter any of the articles of these regulations, being also responsible to resolve any omitted cases or aspects.