2021 Amendments to the ICDR Arbitration and Mediation Rules: a Response to Evolving Practice

The International Centre for Dispute Resolution (ICDR) of the American Arbitration Association has released its revised Arbitration and Mediation Rules, which came into force on 1 March 2021 (the 2021 ICDR Rules). The new rules will apply to any arbitration or mediation commenced after that date unless agreed otherwise.

The Arbitration Rules were last revised in 2014, and the Mediation Rules in 2008. The changes introduced are therefore a comprehensive update responding to issues that have arisen in both arbitration and mediation over the past decade.

As regards mediation, the updates reflect the ICDR’s commitment to the process. The Arbitration Rules now require a party to state in its Notice of Arbitration whether it is willing to mediate the dispute, prior to or concurrent with the arbitration. The older version of the rules merely required the initiating party to state if it had any interest in mediating the dispute.

In addition, the new Mediation Rules:

• Emphasize the importance of party involvement and the obligation of the ICDR to assist the parties in finding an agreeable mediator;
• Set out best mediation practices by comprehensively outlining how a mediation should proceed;
• Recognize that all or part of a mediation proceeding may be conducted via video, audio, or other electronic means;
• Reinforce that it is the responsibility of each party to have present at the mediation a representative with authority to execute a settlement agreement;
• Allow the parties to request from the ICDR or mediator an attestation that a settlement was reached to assist in enforcing settlement agreements according to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) or other applicable law.

The new rules' increased emphasis on mediation in arbitration is a welcome development. A recent Mediation in Arbitration Survey conducted jointly by HSF and the London Chamber of Arbitration and Mediation (LCAM) shows that an increasing number of high-value arbitrations are being resolved via mediation, and there is an impressive success rate of using mediation in arbitration cases.

For more detail on the above, and for analysis of the new Arbitration Rules, click here for our Arbitration team's analysis on the HSF Arbitration Notes blog.