Conduct of the Mediation - Facilitated Dialogue - ICSID Mediation (2022)
Following the discussions with the parties at the first session, the mediator will prepare the mediation protocol, which provides a detailed framework for the conduct of the mediation (Mediation Rule 21).
Role of the Mediator
Much like commercial mediation, the ICSID mediation rules envision the mediator’s role to be that of a negotiation facilitator: the mediator shall assist the parties in reaching a mutually acceptable resolution of all or part of the issues in dispute and has no authority to impose a resolution on the parties (Mediation Rule 17).
Conduct of the Mediation
During the mediation, the mediator may meet and communicate with the parties jointly or separately. Where the mediator meets with the parties separately, the mediator may not disclose any information received from one party to the other party without authorization from the disclosing party (Mediation Rule 17). The mediator may also request that the parties provide additional information or written statements, for example outlining the parties’ interests and views on specific matters to facilitate development of settlement solutions. Should the mediator and the parties consider it helpful, an expert may be appointed with the agreement of the parties. This reflects the fact that expertise on a particular subject matter relevant to the dispute does not necessarily need to be possessed by the mediator.
The conduct of the mediation generally consists of an opening statement by the parties or their counsel. This is followed by joint or separate discussions between the parties and the mediator, during which the mediator explores with each party its interests, needs and concerns. This phase is of particular importance as it provides the basis from which possible settlement solutions are generated. With the mediator’s assistance, the parties then develop heads of agreement and work towards a framework for settlement. In a final phase of the mediation, the parties and their counsel draft the detailed terms of a settlement agreement which is then subject to the applicable approval processes the parties identified at the first session.
For more information on the conduct of an ICSID investment mediation and the roles of the mediator, the parties and their counsel, see ICSID’s Background Paper on Investment Mediation.