Marco Schoups, Schoups
CEPANI is currently preparing a new set of Mediation Rules, drafted by a working group and intended to be submitted shortly for adoption by the Board of Directors and the General Assembly. This is an important step in CEPANI’s broader institutional development: the goal is to make CEPANI a truly general institute for alternative dispute resolution, in which mediation plays a crucial and essential role.
The draft rules reflect that ambition very clearly. They are designed not only to modernize the mediation framework, but also to strengthen the place of mediation within CEPANI’s overall dispute resolution offer, alongside arbitration and other ADR mechanisms. In that sense, the new rules are both a procedural reform and a strategic statement.
A Broader ADR Vision
One of the most striking aspects of the draft is the way it positions mediation. Mediation is no longer presented as a peripheral or secondary process, but as an integral part of a broader, coherent dispute resolution system. The underlying idea is simple: disputes should be handled in the most efficient, cost-conscious and solution-oriented way possible.
This vision is reflected throughout the draft rules. CEPANI wants to offer parties a flexible institutional framework in which mediation can be used on its own, or in combination with arbitration. That flexibility is particularly important in commercial disputes, where parties often need a process that is both structured and adaptable.
Accessible and Flexible Procedure
The draft rules are notable for their accessibility. No prior mediation agreement is required, and parties do not need to have inserted a mediation clause in their contract before the dispute arises. A party may initiate mediation unilaterally by submitting a request to the Secretariat, or all parties may submit a joint request.
This is a practical feature because it means mediation remains available even at a later stage in the dispute. The request must be filed electronically and must contain basic information about the parties, the dispute, and the preferred procedural parameters, such as language and place of mediation. If the request is unilateral, CEPANI transmits it to the other party, which then has two weeks to indicate whether it wishes to participate.
Link With Arbitration
Another important feature is the relationship between mediation and arbitration. The draft expressly allows mediation to be used before, during or after arbitration proceedings. If a joint request for mediation is filed while an arbitration is pending, the arbitration is stayed for at least six weeks or until the mediation ends, unless the parties agree otherwise.
This mechanism shows that mediation is conceived as a genuine tool for de-escalation and settlement, not as a competing procedure. It also reflects CEPANI’s broader ambition to make its dispute resolution framework more integrated and more responsive to the needs of users.
Appointment of the Mediator
The rules also provide a balanced system for the appointment of the mediator. The parties may jointly nominate a mediator for confirmation by CEPANI, or, failing agreement, CEPANI’s Appointments Committee or its President will make the appointment. Before appointment or confirmation, the prospective mediator must sign a declaration of acceptance, availability, impartiality and independence.
The draft goes further by requiring disclosure of any circumstance that could raise legitimate doubts as to independence or impartiality. CEPANI will then communicate that information to the parties and set a deadline for comments. In appointing the mediator, CEPANI will take into account availability, qualifications, ability to conduct the mediation, and also considerations of diversity and inclusion.
How the Mediation Is Conducted
Once appointed, the mediator and the parties are expected to discuss promptly how the mediation will be conducted. The mediator then issues a written Mediation Protocol setting out the practical framework for the process. This protocol is an important tool because it provides clarity while still leaving room for flexibility.
The draft also emphasizes good faith. Each party must act in good faith throughout the mediation, and if the mediation starts, each party must at least attend the first mediation meeting after the protocol has been signed. The mediator must treat the parties fairly and impartially and keep the Secretariat informed of the progress of the proceedings.
Confidentiality and Trust
Confidentiality remains one of the cornerstones of the draft. The mediator, the parties, their counsel, their representatives, experts and any involved third parties are all bound by secrecy regarding the existence and content of the mediation. Communications exchanged for the purposes of mediation are confidential, and the parties must refrain from referring to the mediation outside that context.
The draft also contains an important rule on documents. Pre-existing documents, or documents obtained outside the mediation and later used in the process, are not automatically protected by the confidentiality rule, unless they are specifically communicated as confidential mediation documents. This is a sensible distinction, because it protects the integrity of the process while avoiding overbroad confidentiality claims.
Settlement and Closure
If mediation is successful, the settlement must be recorded in writing, dated and signed by the parties, and, if requested, by the mediator. The settlement should identify the precise undertakings of each party and address the allocation of costs if this differs from the Mediation Protocol. The mediator must then notify the Secretariat that an agreement has been reached.
The draft also contemplates the situation where mediation takes place during an arbitration. In that case, the parties may ask the arbitral tribunal to record the settlement in the form of an award, which gives the agreement an additional procedural framework. If no settlement is reached, the mediator or one of the parties informs CEPANI, and the arbitration resumes where relevant.
Costs and Practical Management
The cost regime is structured and transparent. Mediation costs include the mediator’s fees and expenses, CEPANI’s administrative fees, and any other mediation-related costs agreed by the parties. The advance on costs must be paid before the mediator is appointed, and it may be adjusted during the process if necessary.
As a rule, the advance is shared equally between the parties unless they agree otherwise. If an additional advance is requested and not paid, CEPANI may invite the mediator to suspend work and, if needed, to terminate the mediation. At the end of the process, any remaining balance is reimbursed to the parties.
Standard Clause
The draft also includes a model mediation clause, which is helpful for parties wishing to embed mediation in their contracts. That clause allows the parties to specify the place and language of the mediation, and it can be combined with an arbitration fallback clause if mediation does not result in settlement. This reinforces the idea of mediation as part of a broader dispute resolution architecture.
A Strategic Step for CEPANI
Taken as a whole, the draft rules signal an important strategic evolution. CEPANI is not simply updating a set of procedural rules; it is deepening its identity as a comprehensive ADR institution, with mediation occupying a central and indispensable position. That is a meaningful message for users, counsel and the broader business community.
In practical terms, the new framework should make mediation more visible, more accessible and more operational within CEPANI’s services. In institutional terms, it confirms that mediation is not a side track, but a core instrument in the modern management of disputes.