The mediation procedure is a form of negotiation assisted by a mediator. Mediation is a private, confidential, and voluntary process. At any time, the parties may start or withdraw from the mediation.

The mediation procedure facilitated by the Korea International Mediation Centre (“KIMC”) is conducted pursuant to the Mediation Rules of the KIMC (“Rules”). The authoritative interpretation of any provision in the Rules shall be made by the KIMC.

1

The Rules shall apply when there is any agreement or reference which provides for mediation to be facilitated by the KIMC or under the Rules.

2

The Rules shall apply to the mediation procedure for any present or future disputes where the parties seek agreement, or for transactional-mediation, deal-mediation, or assisted deal-making, where the parties agree to use mediation to help them to conclude deals, in accordance with the Rules.

3

The Rules shall also apply where mediation is commenced on a referral by an arbitral tribunal under the arbitration rules recognized by the KIMC.

4

The Rules are subject to such modifications as the parties may agree in writing, in consultation with a mediator.

1

‌When a dispute arises, a party requesting mediation (“requesting party”) may submit a Request for Mediation as set out in Appendix A to the other party (“opposite party”) and to the KIMC. The opposite party shall then notify the requesting party and the KIMC within 15 days of its acceptance of the request for mediation and whether any mediator suggested is acceptable. Failure by the opposite party to respond within 15 days shall be assumed as a refusal to mediate. Upon the receipt of a positive reply, the requesting party shall immediately submit to the KIMC a written form of the Agreement to Mediate between the parties as set out in Appendix B.

2

‌Notwithstanding anything contained in Rule 2(1), the parties may jointly request mediation by submitting to the KIMC a Request for Mediation as set out in Appendix A.

1

The requesting party shall suggest a mediator from the KIMC Panel of International Mediators or anywhere else within 10 days after submitting a request for mediation.

2

If the parties are unable to agree on the appointment of a mediator within 10 days of the agreement to mediate, the KIMC shall appoint a mediator from the KIMC Panel of International Mediators or other appropriate international mediators in a prompt manner.

3

In principle, a mediator shall be appointed, unless the parties agree otherwise. In case of more than one mediator, each party shall appoint one mediator each within 10 days of the agreement to mediate. If the parties do not appoint the mediators or if the parties otherwise request, the KIMC shall appoint such mediators.

4

When more than one mediator is appointed, a mediator among them shall coordinate the procedural activities with the parties. If the mediators fail to nominate a mediator to do so within 10 days after their appointment, the KIMC shall appoint such mediator.

1

‌After the appointment of a mediator, the parties and a mediator shall, in consultation with the KIMC, establish the language, the time and the venue for the mediation procedure, unless the parties have agreed otherwise.

2

The parties may agree on any particular mediation procedure to be followed by the mediator. Where the parties fail to agree upon any particular procedure, the mediator shall proceed with the procedure as follows:

 

a. 

The mediator may conduct joint and private meetings with the parties online or offline.

 

b. 

A party or its representatives shall, before the commencement of mediation, provide to the mediator, the KIMC and the other party, a pre-mediation submission, setting forth issues to be resolved or deals to be made, and their positions on those issues and all the information reasonably required for the mediator to conduct the mediation appropriately.

 

c. 

If the parties request or if the mediator requests, the KIMC may, in consultation with the parties, arrange for a pre-mediation conference to discuss the manner and procedure for the mediation. The KIMC will determine the date, the time, and the venue for a pre-mediation conference online or offline.

 

d. 

During the mediation procedure, each party shall furnish to the mediator any other information that may be required by the mediator in relation to the issues to be resolved or addressed.

 

e. 

If the parties agree on or if the mediator finds that the offline mediation sessions are not possible, the mediator can, in consultation with the KIMC, conduct online mediation.

1

‌The mediator shall, in consultation with the parties, conduct mediation within 30 days from the date of appointment.

2

‌The validity of the mediator appointment should not extend beyond 50 days without the written consent of the parties.

3

‌The parties and the mediator should be encouraged to commence and conclude mediation on a one-day period, unless otherwise agreed.

1

The mediator may conduct mediation in such a manner as the mediator considers appropriate and shall take into account the circumstances of the case, each party’s needs and the need for a prompt settlement of the dispute or for an effective deal making.

2

The mediator is not bound by the law of procedure or of evidence.

3

The mediator shall be guided by the principles of independence, impartiality and fairness and shall act in accordance with the KIMC Code of Conduct for International Mediators, as set out in Appendix C.

4

The mediator may obtain expert advice or assistance with the parties’ consent and the parties shall bear any expenses incurred in this regard. The expert shall sign a declaration of confidentiality in order to participate in the mediation procedure.

5

‌The mediator, may communicate any information or related matters concerning the dispute or deal received from a party to the other party, with authorization from the parties. The parties shall be given an opportunity to present explanations. 

6

‌The mediator shall facilitate voluntary resolution by the parties and communicate the view of each party to the other party, assist them in identifying issues and any related interests of the parties, reducing misunderstandings, clarifying priorities, exploring settlement options, while reminding them the ultimate decisions are for them to make. Thus, the mediator may propose a solution if requested by the parties but shall not impose solutions or any terms of settlement on the parties.

7

‌The mediator shall not act as a legal advisor or legal representative for any of the parties. The mediator does not have a duty to protect legal rights or give advice on legal obligations of any of the parties.

8

In the case of deal-mediation, the mediator shall attempt to facilitate voluntary negotiations by the parties and assist them in communicating their priorities, reducing misunderstandings, clarifying priorities, exploring options of mutual benefits, while reminding them the ultimate decisions are for them to make. Thus, the mediator shall not impose solutions or any terms of a deal on the parties.

9

After the mediation session, the mediator shall submit a written form of Mediation Record as set out in Appendix D. The Mediation Record Form shall be signed by the mediator and the authorized officer of the KIMC.

10

The mediator may withdraw from the mediation at any time after consulting the parties. The mediator shall give a written notice of withdrawal to the parties and the KIMC. If the parties are unable to agree on the appointment of another mediator within 10 days of the withdrawal, the KIMC shall appoint the mediator.

11

The parties acknowledge that the mediator shall not be appointed as an adjudicator, arbitrator, or representative, counsel, expert or witness of any party in any subsequent procedures like arbitral or judicial proceedings whether arising out of the dispute covered under the mediation or any other dispute in relation to the mediation.

12

‌However, if agreed by the parties, the same mediator can be appointed as an arbitrator in subsequent proceedings only for enforcement purposes.

1

The mediator may communicate with the parties in joint and private meetings, where the parties may participate voluntarily. The parties shall cooperate with the mediator to enable the mediation to proceed properly and be concluded within the time stipulated.

2

The parties must recognize that the mediator is facilitating a settlement of the dispute or terms of a deal and does not guarantee that the mediation will result in a settlement or a deal. The parties must also recognize the mediator nor the KIMC shall act as a legal advisor or legal representatives for any of the parties.

3

The parties shall give voluntary suggestions for a settlement of the dispute or terms of a deal. The final outcome shall be determined by the mutual agreement of the parties. The mediator shall not make proposals or impose any decisions upon the parties to settle the dispute or conclude a deal. If the parties request, the mediator may make evaluative suggestions or proposals, but the parties shall determine whether to accept such suggestions or proposals.

4

A party may:

 

a. 

Withdraw from the mediation at any time during the mediation, and

 

b. 

Be accompanied to the mediation, and assisted by a person (including representative, consultant, advisor, etc.).

5

A party or the parties may terminate the appointment of the mediator for any reason of the breach of independence, impartiality, and fairness or the violation of the KIMC Code of Conduct for International Mediators and shall inform the opposite party, the mediator and the KIMC. The parties shall agree on the appointment of another mediator within 10 days of termination or request the KIMC to appoint another mediator.

6

When any of the parties are unable to be present at mediation, they can be represented by their authorized persons or holders of power of attorney.

7

When any of the parties are assisted by a counsel, consultant, or advisor, the parties shall bear any expenses incurred in this regard.

1

The KIMC shall make the necessary arrangement for mediation, such as:

 

a. 

The appointment of a mediator,

 

b. 

The venue and the date for mediation,

 

c. 

An exchange of pre-mediation submissions, if any, and

 

d. 

General administrative and logistical support for the parties and the mediator, including online support.

2

The KIMC shall not act as a legal advisor or legal representative for any of the parties. The KIMC does not have a duty to protect legal rights or give advice on legal obligations of any of the parties.

3

The KIMC, in consultation with the mediator, shall assist in drawing up the Mediated Settlement Agreement (“MSA”), if necessary.

1

‌No third-party shall be allowed to attend the mediation without the consent of the parties and the mediator. Only the mediator, the parties and/or their representatives and advisors shall be permitted to attend the mediation. The mediator may be assisted by a secretary, for clerical assistance, after the secretary signs a declaration of confidentiality.

2

‌Every document, communication or information disclosed or produced by any party for the purpose of or related to the mediation procedure shall be confidential and without prejudicial basis and no privilege or confidentiality shall be waived by such disclosure. Confidentiality also extends to the Mediated Settlement Agreement (“MSA”) except where its disclosure is necessary for the implementation or enforcement.

3

‌All offers, promises, conducts and statements, whether written or oral, made during the mediation, are inadmissible in any litigation or arbitration of any dispute. Evidence that is otherwise admissible, subject to the applicable law of evidence, shall not be rendered as inadmissible as a result of its use in the mediation.

4

‌No transcript or formal record of the mediation shall be made. No audio-visual recording shall be made of the proceedings.

5

‌Nothing that is disclosed during the mediation is intended to or shall in any way affect the rights or prejudice the position of the parties to the dispute in any subsequent arbitration, adjudication or litigation.

6

‌The parties shall maintain confidentiality in respect of information that was disclosed during the mediation and shall not rely on or introduce the disclosed information in any other proceedings as to;

 

a. 

‌Views or admissions made by a party during the mediation,

 

b. 

‌Documents, other notes, drafts or information given by the parties or mediator during the mediation, which were expressly required to be confidential,

 

c. 

‌Proposals made or views expressed by the mediator, and

 

d. 

‌The fact that a party had or had not indicated willingness to accept a proposal.

1

When a settlement seems probable, the mediator shall formulate and submit the terms of a possible settlement to the parties. The mediator may reformulate terms of the settlement after receiving the parties’ feedback.

2

‌When the parties have reached a settlement, the mediator may seek assistance from the KIMC in drafting the MSA. The MSA shall be signed by the parties and the mediator. The KIMC shall then authenticate the MSA and furnish copies to each party. 

3

When the parties sign the MSA it shall be final and binding on the parties and persons claiming under them.

4

‌In the case of Arb-Med-Arb procedure, where a dispute is fully or partially resolved, the MSA shall be signed by the parties, which shall be submitted to the KIMC. 

5

‌In case of deal-mediation, where the parties have reached on the terms of the deal, whether entirely or partially, the MSA shall be signed by the parties and the mediator. The KIMC shall then authenticate the MSA and furnish copies to each party.

1

The mediation shall terminate upon:

 

a. 

The signing of the MSA by the parties, or

 

b. 

The receipt of a written notification from the mediator, after consulting the parties, as the mediator believes no further attempts at mediation are justified, or

 

c. 

Written notifications by any party at any time to the mediator, the other party, or the KIMC, that the mediation is terminated.

 

Provided, if a party does not respond to the invitation of the other party, mediator or the KIMC, or does not attend the mediation without giving any notice and does not respond to any request for explanations by the other party, the mediator or the KIMC, the mediation shall be deemed to be terminated.

2

‌On completion of mediation, the mediator shall notify completion of mediation to the KIMC.

3

‌After receiving the notification of completion, the KIMC shall issue a Mediation Status Report (“MSR”) to the parties, confirming the final status of the mediation.

‌The Mediation Status Report shall be issued even if the dispute was not resolved or the mediation could not be held due to the absence of the opposite party. In case the mediation could not be commenced due to non-appearance of all or some of the parties, the KIMC shall issue a Mediation Status Report confirming failure of the mediation to the parties.

1

Unless otherwise agreed, each party shall bear its own fees and costs regardless of the outcome of the mediation. All the other costs and expenses shall be borne equally by the parties, and the parties shall be jointly and severally liable to pay to the mediator such costs in accordance with the Fee Schedule as set out in Appendix F:

 

a. 

Fees and expenses for the mediator,

 

b. 

Expenses for any expert advice or opinion obtained by the mediator with the consent of the parties,

 

c. 

The administrative costs of the KIMC in support of mediation, and

 

d. 

Any other costs including those for such as translators and interpreters that the parties have consented to bear.

2

‌The KIMC may suggest the fees and expenses for the mediator by considering the quantum of claim and the mediator’ availability, unless the mediator and the parties have agreed to  a different term of fees and expenses before the commencement of the mediation and have notified the KIMC. 

3

The KIMC shall fix the administrative costs of the mediation in accordance with the KIMC Mediation Fee Schedule.

4

The parties shall comply with the payment schedule, including deposits, in accordance with the KIMC Mediation Fee Schedule. The KIMC may suspend the mediation process until such relevant payments are made.

5

Any surplus funds shall be reimbursed to the parties upon the conclusion of mediation, in a prompt manner.

6

Each party shall be liable for the payment of charges or fees to their respective counsels, consultants, and advisors.

7

The KIMC Mediation Fee Schedule under the Rules shall be published on the official website of the KIMC.

1

‌The mediator and the KIMC, including its employees, shall not be liable to any party for any act or omission in relation with the mediation procedure unless such act or omission was due to gross negligence or fraud.

2

‌If any of the parties believes that the mediator has violated the KIMC Code of Conduct for International Mediators, the KIMC shall be notified of the issue. The KIMC shall conduct an inquiry and the parties will be notified of the result within 1 month from the date of the KIMC was notified.

1

The parties may conduct online mediation through digital platform subject to technical abilities as agreed by the parties.

2

The Rules shall be applicable to the online mediation procedure of present or future disputes where the parties seek amicable settlement of such disputes under the Rules.

3

The parties can initiate online process from the beginning of the mediation or at any stage of the mediation.

4

The digital platform used for online mediation should ensure the following features and safety measures:

 

a. 

Allow the parties to opt for textual communications – chat rooms, audio conferencing or video conferencing,

 

b. 

Facilitate the parties use of the online waiting rooms, online joint meeting rooms, or online private meeting rooms, and

 

c. 

Ensure that communications are private and confidential and recording of any communication whatsoever is not permitted.

5

The entry to the rooms is restricted to the registered parties only, with the list of participants issued to all parties and password protected.

‌6

‌The digital signature shall be valid and have the same legal effect as their written equivalents.