Mediation Rules of Shanghai Commercial Mediation Center

(Published in October 2012, Amended in September 2020)

Chapter I General Principles

Article 1 (Purpose)

To ensure that the mediation activities of the Shanghai Commercial Mediation Center (“SCMC”) can proceed in a standardized, orderly, impartial and efficient manner, to help the parties to settle disputes in commercial areas, and to maintain and promote harmonious and stable commercial relationships, these Rules are hereby formulated.

Article 2 (Definition)

“Mediation” within these Rules means a process, applied by applicants or entrusted by another agency, whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person or persons ( “the mediator”) who facilitates the parties to the dispute to arrive at a mutually acceptable solution .

Article 3 (Scope of Application)

These Rules are applicable to the mediation of disputes between the parties in economy, finance, trade, shipping and other commercial areas.

Article 4 (Basis for Mediation)

Mediation shall be conducted according to laws and regulations, with reference to international practices and trade practices, on the basis of voluntariness of the parties, and upon the principles of fairness, reasonableness and confidentiality, to promote mutual understanding and mutual accommodations resulting in a settlement between the parties.

Article 5 (Joint Mediation)

Upon the consent of the parties, SCMC may conduct a joint mediation along with another dispute resolution organization, or accept the appointment or entrustment by a people’s court or an arbitration commission to conduct a joint or sole mediation of the dispute.

Article 6 (Selective Application of Mediation Rules)

Whenever the parties agree to refer a dispute to SCMC for mediation, they shall be deemed to have consented to a mediation according to the then applicable mediation rules of SCMC. Through negotiation, the parties may select the provisions of these Rules or change the relevant clauses of these Rules, provided, however, that such selection or change may not violate the mandatory provisions of the law or regulations of the People’s Republic of China.

Any matter that is not addressed in these Rules shall be subject to the stipulations of the parties.

Article 7 (These Rules Do Not Apply to the Following Disputes)

1. Concluded to resolve a dispute arising form transactions engaged in by one of the parties (a consumer) for personal, family or household purposes;

2. Disputes concerning personal rights that relate to family, inheritance or employment law;

3. Disputes related to criminal cases.

Chapter II Mediation Proceedings

Section 1 Acceptance of Cases

Article 8 (Acceptance of Application)

SCMC will accept a case according to the mediation provisions entered into by the parties before or after the occurrence of the dispute and the application for mediation filed by one party or multiple parties of the dispute.

Mediation Provisions mean the mediation clauses as set forth by the parties in the contract, or an agreement otherwise entered into by the parties for the resolution of a dispute by means of mediation. If there are no Mediation Provisions between the parties and one party applies for mediation, SCMC can also accept the case, subject to the consent of the other party.

Article 9 (Filing an Application)

When the parties file an application to SCMC for mediation, they shall act according to the following procedures and requirements:

A. To file an application for mediation which shall state and/or provide:

1. The names, domicile and mailing addresses, postcodes, telephone numbers, fax numbers, email addresses, etc. of the claimant and the respondent;

2. The willingness of the parties to mediate voluntarily;

3. The facts in dispute, evidenciary materials and the request for mediation;

4. Other relevant matters.

B. If an attorney is hired to be involved in the mediation, a written power of attorney shall be submitted.

C. When one party files an application for mediation, such party shall pay a case registration fee.

D. Confirmation of Mediation

After receiving and examining the application for mediation and confirming acceptance of the case, the secretariat of SCMC shall in a timely manner send the relevant documents to the respondents. If the respondents agree to the mediation, they shall, within 5 working days following the receipt of the above documents, confirm in writing whether or not they consent to the mediation and select a mediator pursuant to Section 2 of this Chapter of these Rules. Meanwhile, the respondents shall pay a case registration fee.

Article 10 (Failure to Confirm)

If the respondents fail to confirm whether or not they consent to the mediation within the specified time limit, they shall be deemed to have refused the mediation. If the respondents consent to the mediation after the specified time limit expires, the director of SCMC will decide whether or not to accept the case.

Section 2 Selection (or Appointment) of Mediator

Article 11 (Selection of Mediator)

In principle, one mediator shall be arranged for each case.

Each party may respectively select multiple mediators from the Panel of Mediators of SCMC and SCMC shall determine one mediator from the list that both the parties have selected.

If the mediators selected by both parties do not overlap, the director of SCMC shall appoint one mediator according to the requirements of the parties for the mediator and the specific conditions of the case, which appointment shall be subject to the confirmation by the parties.

The parties may also jointly entrust SCMC to help them select the mediators.

For large and complicated cases, with the consent of the parties, SCMC may arrange multiple mediators. SCMC shall designate one of the multiple mediators as the chief mediator who shall preside over the mediation.

Article 12 (Temporary Mediator)

If necessary, the parties may recommend a person outside the Panel of Mediators of SCMC to serve as a temporary mediator, and the director of SCMC shall decide whether or not such person is eligible.

The temporary mediator shall comply with the regulations of SCMC.

Article 13 (Withdrawal of Mediator)

When accepting the selection by the parties or the appointment by SCMC,  mediators shall undertake to perform their duties and disclose any circumstance that is likely to affect their independence and impartiality when they serve as a mediator on the case.

Under any of the following circumstances, a mediator shall take initiative to request withdrawal, and the parties are also entitled to apply for the mediator’s withdrawal orally or in writing:

 A. The mediator is a party to the present case, or is an immediate family member of a party to the present case or its attorney;

 B. The mediator has an interest in the present case;

 C. The mediator has any other relationship with either party to the present case, that may affect the mediation of the case.

Article 14 (Determination of Mediator)

If a mediator is unable to perform their duties and applies for withdrawal, the parties or SCMC shall determine a new mediator.

After determining the new mediator, the new mediator shall decide whether or not the mediation proceedings already conducted shall be re-conducted.

Section 3 Mediation Procedure

Article 15 (Commencement of Mediation)

The mediator shall, within 10 working days after being selected, formally start the mediation.

Article 16 (Mediation Period)

Within 30 days after the first mediation session or after starting the mediation in any other form, the mediator shall close the case and draft a written report, and the mediation proceedings shall terminate.

For large and complicated cases, upon the filing of an application by the mediator and the consent of the director of SCMC, the mediation may be extended. The extension shall not exceed 30 days.

Article 17 (Mediation Method)

A mediator may conduct the mediation according to any method that the mediator believes can help the parties settle the dispute, which includes but are not limited to the following:

A. In the course of mediation, the mediator may meet both parties or their attorneys concurrently or one party or its attorney separately, except as otherwise required by the parties;

B. The mediator may, according to the specific conditions of the case and as per the application by the parties, request SCMC to engage relevant experts to provide professional opinions ;

C. If the mediation fails to result in a settlement between the parties, the mediator may, based on his knowledge of the case, provide suggestions or proposals to the parties regarding the settlement of the dispute.

Article 18 (Private Mediation)

Except as otherwise agreed upon by the parties, the mediation shall, in principle, be conducted privately.

Article 19 (Mediation Location)

In principle, the mediation will be conducted at the premises where SCMC is located. If the parties stipulate or consent otherwise, the mediation can also be conducted at another location or online.

Article 20 (Termination of Mediation Proceedings)

The mediation proceeding shall terminate under any of the following circumstances:

A. The parties reach a settlement agreement which is confirmed by SCMC;

B. The mediation period has expired, and the mediator believes that the mediation cannot succeed and issues a written final report;

C. Any party makes a written statement to the mediator informing the mediator of such party’s exit from the mediation; and

D. Any other circumstance resulting in the termination of the mediation proceedings.

Article 21 (Resumption of Mediation Proceedings)

After the mediation proceedings terminated, if the parties wish to continue the mediation, the mediation proceedings may be resumed.

Chapter III Mediation Expenses

Article 22 (Scope of Mediation Expenses)

Mediation Expenses include case management fees and mediation fees. For details regarding the mediation expenses, reference should be made to the Fees & Terms separately formulated by SCMC.

Article 23 (Payment Proportion)

In principle, the mediation fees is to be borne proportionally by each party; if the parties otherwise agree otherwise to the proportion of the mediation fees to be borne by each party, such agreement shall be respected.

Article 24 (Other Expenses)

Each party shall themselves bear all other expenses for attending the mediation.

Other expenses include but are not limited to costs related to attending the hearing, or the investigation, shall be borne collectively by both parties subject to the parties‘ agreement; if the parties agree otherwise regarding the proportion of the expenses to be borne by each party, such agreement shall prevail.

Chapter IV Effectiveness of Mediation

Article 25 (Making the Mediation Decision)

If the parties reach a settlement agreement through mediation, the settlement agreement shall be signed by the mediator and the parties and shall be affixed with the seal of SCMC. The settlement agreement may not be publicly disclosed except for the purpose of enforcement or performance.

Article 26 (Effectiveness of Mediation)

An effective settlement agreement is a civil contract by nature, so the parties are obliged to perform such agreement. The parties may also file an application to the people’s court of competent jurisdiction for confirmation of such agreement’s effectiveness.

SCMC may accept the appointment or entrustment by a people’s court or an arbitration commission to mediate a case prior to or during a litigation or arbitration. The appointing or entrusting party may issue a legal document based on the settlement agreement as per parties’ request , which shall have corresponding legal effect.

Article 27 (Selection of Jurisdiction)

The parties may, in the settlement agreement, select the primary people’s court of competent jurisdiction based on either the place of domicile of either party, the place where the settlement agreement is performed, the place where the settlement agreement is signed or the place where the subject matter is located. However, the above selection must not violate any regulations and laws concerning exclusive jurisdiction.

If the parties do not stipulate the selection of the court of competent jurisdiction, the primary people’s court at the location of domicile of either party or the location where the settlement agreement is performed shall have jurisdiction. If a settlement agreement is reached through mediation by SCMC as appointed or entrusted by a people’s court, the appointing or entrusting people’s court shall have jurisdiction.

After the people’s court confirms the effectiveness of the settlement agreement, if either party refuses to perform the settlement agreement, the other party may file, according to law, an application to the people’s court for enforcement.

Article 28 (Application for Notarization)

The parties may, in accordance with the Notarization Law of the People’s Republic of China, file an application to a notary office for granting enforceability to a settlement agreement with an obligation of payment. If the obligor fails to perform or improperly perform an enforceable notarization document, the obligee may file an application to the people’s court of competent jurisdiction for enforcement.

Article 29 (Application for Arbitration)

Both parties may stipulate arbitration clauses in the settlement agreement and a specific arbitration commission may be selected for rendering an award to confirm the effectiveness of the settlement agreement.

Chapter V Supplemental Provisions

Article 30 (Subsequent Obligations of the Parties)

No party may, in any subsequent arbitration, litigation or any other proceedings regarding the same dispute, refer to any proposal or suggestion, which is put forward or readily accepted by the mediator or the other party for the purpose of reaching a settlement during the course of the mediation, as the basis for an appeal or defense.

Article 31 (Subsequent Obligations of Mediator)

If the mediation is unsuccessful, the mediator may not serve as an arbitrator or attorney in any subsequent arbitration or litigation proceedings regarding the same dispute, unless consented by the parties.

No party may require the mediator to act as a witness for any arbitration, litigation or other dispute resolution proceedings except as otherwise provided by law.

Article 32 (Right to Interpret)

These Rules are formulated by the SCMC, and the Council of the SCMC shall be responsible for interpreting these Rules.

Article 33 (Effective Date)

These Rules shall become effective as from the date of printing and issuance.

   Shanghai Commercial Mediation Center

                       September 2020