Sincere Qianhai Lawyer Mediation Center
Article 1 Purpose and Principle
Supreme People’s Court and the Justice Department jointly issued the Opinions on Conducting Lawyer Mediation Pilot Work, in which lawyers are encouraged to participate in the mediation work and set up mediation studio or mediation center to promote dispute resolution. In response to the call, Sincere Qianhai Law Offices established Sincere Qianhai Lawyer Mediation Center to help clients resolve disputes in a fast, harmonious, effective and low cost way. The Rules hereunder is formulated to integrate with the mediation work.
Mediation is voluntary and shall be conducted according to relevant laws and regulations and international practice to achieve mutual understanding and reach a settlement.
Article 2 Sincere Qianhai Lawyer Mediation Center
Sincere Qianhai Lawyer Mediation Center (hereinafter referred to as “the Mediation Center”) was established on November 1st, 2017 to assist parties involved in the dispute to resolve the dispute through mediation. All of the Mediators of the Mediation Center are highly qualified experts such as senior lawyers or senior partners of the firm. Meanwhile, the Mediation Center also participates in lawyer litigation and mediation work as one of the member units of Shenzhen Qianhai Cooperation Zone People’s Court. The Mediation Center aims to become a dispute resolution center of Qianhai in the field of lawyer mediation.
Article 3 Mediation and Neutrality
The mediation is conducted according to the Rules of the Mediation Center to resolve civil disputes. Under full confidentiality，lawyers of our Center persuade the parties to voluntarily reach a settlement agreement through equal consultation.
The Mediation Center remains committed to the principle of neutrality，not to any party, and it will firmly safeguard the objectivity, impartiality, and acceptability of the mediation results.
Article 4 Confidentiality
The Mediation Center keeps mediation fully confidential. Unless otherwise agreed by the parties or provided for by law, the matters, process, and agreement of the mediation will not be open to the public; any agreement between the parties shall not be disclosed, except as required for the fulfillment or implementation of the agreement. No privacy or trade secrets of the parties shall be disclosed.
Article 5 Scope of Mediation and Application
The Mediation Center accepts cases related to civil and commercial disputes, including the civil part of incidental civil disputes, except the following circumstances:
(1) Cases applying special procedures, urging procedures, public notification procedures;
(2) Cases concerning the identification of identity and property rights;
(3) Cases of which the parties expressly reject mediation;
(4) Cases not suitable for mediation.
If the parties have agreed to submit the dispute to the Mediation Center in the terms of their contract or by agreement, the Rules will automatically apply. If any party submits an application to the Mediation Center after dispute and checks the application of the Rules in the application form, the Rules will apply.
Article 6 Submission of Application
In the event of a dispute, any party can file an application to the Mediation Center, regardless of whether there is a prior mediation agreement or mediation clause in relevant agreement between the parties.
Where there exists a prior mediation agreement or mediation clause between the parties in their agreement, any party that files an application to the Mediation Center shall attach a copy of the mediation agreement or relevant agreement containing mediation clause.
A party unilaterally applying for mediation shall fill out an application form to clarify the facts and amount of dispute, the parties involved, etc.; if the parties entrust an agent to participate in mediation, relevant authorization certificate shall be submitted.
The Mediation Center will send a notice of charge to the applicant within two (2) business days upon receipt of the application form submitted by the applicant. The applicant shall pay fees in advance to the Mediation Center within five (5) calendar days upon receipt of the notice of charge in accordance with the charge details. Please refer to Article 17 of the Rules for specific charge standard and prepayment arrangements.
Article 7 Response to the Application to Mediation
After receiving application forms and advance fees, The Mediation Center will promptly confirm with parties concerned in written form about their consent to mediate. The parties concerned shall reply in three (3) working days since they receive such confirmation. If the parties concerned refused to mediate, the Mediation Center will notify the applicate and conclude the proceeding; If the parties concerned agreed to mediate, they shall sign the Consent to Mediation sent together with the confirmation and mail to the Mediation Center.
All parties of a dispute applicate to mediation together will be deemed as all the parties consent to authorize the Mediation Center to mediate the dispute.
Article 8 Selection and Designation of the Mediator
When parties consent to authorize the Mediation Center to mediate the dispute, the Mediation Center will deliver Mediation Confirmation to the parties by mail or in person, the mediation proceeding will be launched since parties sign on the Mediation Confirmation.
The parties shall designate a mediator together in fifteen (15) calendar days since receiving the Mediation Confirmation. (Parties may find Sincere Qianhai Lawyer Mediation Center Panel of Mediators on the website of the Mediation Center) If the parties do not designate mediators in fifteen (15) calendar days, the Mediation Center will designate a mediator for the dispute.
Together with the Mediation Confirmation, the parties may mail copies of relevant evidence.
Generally, the mediation is conducted by one mediator. Complicated cases may be conducted by two mediators, upon the consent of the Mediation Center and the parties involved.
Article 9 Disclosure, Challenge, and Replacement of Mediators
After designation of mediators, the Mediation Center will send to the mediator-to-be an email about case facts and relevant information of the parties and a request for acceptance. If the mediator-to-be accepts the designation, he or she should sign the written statement to confirm, promise to make arrangement for the mediation and remain fair and independent.
The parties shall have the right to challenge the mediator if the mediator:
(1) is the party concerned or close relative of the party concerned;
(2) is of interest to the dispute;
(3) is in other relations with the parties concerned, which may affect the justice of the mediation.
If the aforementioned circumstances occurred, the mediator shall disclose it and the Mediation Center will send it to the parties. The parties shall propose the challenge within two 2 weekdays from the date when they receive the feedback from the Mediation Center; the mediator shall be deemed not challenged if overdue. If the aforementioned circumstances occurred, the mediator shall be challenged except when the parties unanimously agreed not to.
If conflicts happened during the mediation or the mediator or any party raises special circumstances where the mediator is unable or unsuitable to perform the duties, the Mediation Center will re-determine qualified lawyer mediators to continue.
Article 10 Language of Mediation
All parties are entitled to select Putonghua, Cantonese or English as mediation language prior to formal mediation meeting. The mediator can negotiate with the parties and confirm mediation language with considering language factor and other factors of the involved cases. If any party requires other language besides above as mediation language and translator is needed, all fees thus incurred should be on hire party.
Article 11 Pre-mediation Meeting
After be nominated by parties or appointed by Mediation Center, by arranging formal pre-mediation meeting, mediator should discuss the mediation proceeding including setting mediation limitation with parties in advance. Pre-mediation meeting could be proceed via face-to-face meeting, phone meeting or via other electronic communication methods. The content of such pre-mediation meeting should be recorded in written; the mediator shall sign and submit the record to Mediation Center for file reserving. The parties should sign for confirmation at the formal mediation meeting.
Article 12 Mediation Meeting
The formal mediation meeting should be conducted by mediator. The staff member of Mediation Center is responsible for meeting recording. Any other recordings are prohibited during the mediation proceeding. Without prior consent of the parties, other people must not attend the mediation meeting.
The mediation meeting duration depends on case by case and is determined by mediator. There is no time-limits for mediation meeting. The mediator shall read the notification of the rights and obligations and the risk notification to the parties before the meeting. All documents aforementioned should be signed and confirmed by the parties.
After the mediation meeting, the parties shall signed and confirmed the written record. Each party holds a copy and the Mediation Center retains one.
Article 13 Place of Mediation
Except parties agreed the meeting could be proceed at other places, otherwise pre-mediation meeting and formal mediation meeting should be conducted and proceed at the Sincere Qianhai Lawyer Mediation Center.
Article 14 Responsibilities of Mediator
The mediator should in advance review the case materials in aspects of the legality of claims, fraud mediation, etc.
Mediator may conduct and proceed the mediation in the way which mediator deems appropriate with synthetically considering the case, the will of parties and so on.
Mediator should lead the parties to communicate with each other directly and encourage the parties to raise their own dispute resolution suggestion or plans.
Article 15 Rights of Mediator
Mediator has right to
Article 16 Obligations of Mediator
Mediator must not
Article 17 Time-limits of Mediation
The nominated or appointed mediator should terminate mediation work within forty-five (45) calendar days since confirmation of the appointment and sign the written instructions. Except parties agree to extend with the written consent , otherwise the mediation time-limits may not exceed sixty (60) calendar days.
Article 18 Mediation Agreement
When a mediation case results in success, the mediator shall organize the parties to prepare the mediation record and agreement. The Mediation Center holds the mediation transcript. Each party holds one copy of the agreement and the Mediation Center retains one copy. The mediation agreement is legally binding, the parties shall perform the agreement.
Article 19 Responsibilities of the Parties
In the course of mediation, the mediator may contact with any party or all parties, including non-public meetings. Each party shall actively cooperate with the mediator and assist in mediation with every effort.
Article 20 Termination of Mediation
Mediation ends if the following situations occur:
(1) both parties sign or each party signs a settlement agreement; or
(2) the mediator finds that there is no sufficient reason to continue the mediation after conducting mediation between parties involved and notify the parties in writing to terminate the mediation; or
(3) any party notifies the mediator or mediation center in writing to terminate the mediation during the mediation proceeding;
(4) when the period of the mediation expires and the parties have not agree to extend it, or sixty (60) natural days from the date of signing the written declaration by the mediator. The Mediation Center terminate the mediation by notifying the mediator and the parties;
(5) one or both parties to be absent from the pre-mediation meeting or mediation meeting without reasonable grounds;
(6) other circumstances in which mediation should be terminated.
Article 21 Restriction
The parties undertake not to appoint the mediator as the litigation agent, arbitrator, arbitration agent or expert witness in any following lawsuit, arbitration or judicial proceedings. Any party has no right to apply for mediator as the witness in any following lawsuit, arbitration or judicial proceedings caused by the same contract.
Article 22 Responsibilities
The obligations of the mediators, as stipulated in this mediation rule, are also applicable to all administrative assistants of the Mediation Center. The mediators, the Mediation Center and its staff members are only responsible for fraudulent or intentional misconduct during mediation proceedings without being responsible for any action or omission related to the procedure.
Article 23 Charge Standards
The parties shall pay the relevant fees in advance within five days of receipt of the Notice of Charge issued by the Mediation Center in accordance with the fees and charges specified in the annex to the Notice of Charge. The filing fee and mediation fee shall be pre-paid by the applicant, and if the parties agree to pre-pay in proportion, the agreement shall prevail.
If the mediation is unsuccessful, after deducting the actual expenses which incurred during the mediation process (including the filing fee, case management fee of the mediation center, remuneration of mediators, travel and accommodation expense, etc.), the balance of the prepaid mediation fees will be returned to the parties.
Article 24 Others
The Mediation Rules shall be interpreted by Sincere Qianhai Lawyer Mediation Center.
The Mediation Rules shall be effective as from November 1st, 2017.