Initial Written Statements, First Session, and Mediation Protocol - ICSID Mediation (2022)
Initial Written Statements
Fifteen days after the mediator has accepted the appointment and the Request for mediation has been transmitted to the mediator (Mediation Rule 15), each party is to file a brief initial written statement (Mediation Rule 19). The statement is an opportunity for each party to share its views on the disputed issues and on procedural aspects of the mediation.
At this stage, the mediator may meet with the parties jointly or separately to prepare for the first session (Mediation Rule 20(2)).
The first session should be held within 30 days after the mediator has accepted the appointment and the Request for mediation has been transmitted to the mediator unless the parties agree to a different timeline (Mediation Rule 20(1)).
A first session can be held in person, by telephone or by videoconference.
The objective of the first session is to determine the protocol for conducting the mediation (Mediation Rule 20(3)).
Matters to be discussed include the procedural language of the mediation, treatment of information relating to or obtained during the mediation, the place of meetings, and next steps in the process. The mediator will also inquire whether the parties have reached any agreement regarding: (i) not to initiate or pursue other proceedings in respect of the issues being mediated; (ii) the application of prescription or limitation periods; and (iii) the disclosure of any settlement agreement resulting from the mediation.
In addition, each party will be asked to identify a person or entity who is authorized to negotiate and settle the dispute, and each party will be asked to describe the process that would be followed to conclude and implement a settlement reached in the mediation (Mediation Rule 20(4)). This ensures that the subsequent negotiations during the mediation are conducted by individuals with negotiation authority. In addition, mediation participants are aware of any approval processes that may be required when finalizing an eventual settlement agreement.
The agreements reached at the first session are included in a Mediation Protocol (Mediation Rule 20(3)), which is signed by the mediator(s) and mediation participants. The mediation will be conducted on the basis of the agreed Mediation Protocol (Mediation Rule 21(1)).