CIDB Mediation Rules

CIDB Mediation Rules (2000) INTRODUCTION

These Rules are published by the Construction Industry Development Board Malaysia

(CIDB) for use with the CIDB Standard Forms of Contract, the CIDB Standard Forms of

Sub Contract for Nominated Sub-Contract and for any other contracts that specify the

use of these Rules.

The Rules may also be adopted by parties to a construction dispute who have not

provided for mediation but who wish to mediate their dispute, either in an attempt to

avoid arbitration or litigation or during the course of such arbitration or litigation.

Recommended Mediation Clause

For parties entering into a contract who wish to have future disputes referred to

mediation in accordance with the CIDB Mediation Rules, the following clause is

recommended for inclusion in the contract.

“Any dispute or difference arising out of or in connection with this contract shall

first be referred to mediation in accordance with the CIDB Mediation Rules in

effect at the commencement of the mediation.

Recommended Mediators

The parties to a dispute are free to choose any person accredited in the CIDB Panel of

Accredited Mediators in whom they have trust and confidence to act as the mediator.

CIDB maintains a panel of suitably trained individuals all of whom have achieved the

status of CIDB Accredited Mediators. The list of CIDB Accredited Mediators can be

obtained from the Construction Business Development Division of CIDB, the CIDB

_________________________________________________________________________________________ CIDB Mediation Rules (2000)

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home page at www.cidb.gov.my or from the construction portal at

www.econstruction.com.my

Accreditation of Local Mediators

Potential mediators who wish to be accredited into the CIDB panel of Accredited

Mediators may apply using Form M1. The accreditation would be subject to the CIDB

Mediator Accreditation Requirements.

Mediators would be certified as accredited mediators through Form M2.

Registration of Foreign Mediators

Foreign mediators shall apply for registration with CIDB using Form M1 – F on a case to

case basis before undertaking any mediation service. Foreign mediators would be

registered through Form M2 – F.

The registration fee is RM500.00 per mediation. The fee shall be paid to CIDB prior to

the issuance of Form M2 – F.


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http://www.cidb.gov.my/

http://www.econstruction.com.my/

Mediation

1. Mediation under these Rules is a private, confidential, voluntary and non-binding

dispute resolution process in which a neutral person (the mediator) helps the

parties to reach a negotiated settlement.

Application of Rules

2. These Rules apply to the mediation of present or future disputes where the

parties seek amicable settlement of such disputes and where, either by

stipulation in their contract or by agreement, they have agreed that these Rules

shall apply.

Initiation of the Mediation Process

3. (a) If a dispute arises, a party may request the initiation of mediation by

delivering a written request for mediation (“Request for Mediation”) to the

other party. Such Request for Mediation shall contain a brief self-

explanatory statement of the nature of the dispute, the amount in dispute

(if any) and the relief and/or remedy sought. The Request for Mediation

should also nominate a mediator or mediators thought suitable and who is

accredited in the Panel of CIDB Accredited Mediators, together with

contact details, current fee rates, and any other conditions of appointment

of such mediator or mediators.

The Request for Mediation should contain the names, addresses,

telephone, facsimile and e-mail numbers (if known) of both parties to the

mediation and those who will represent them (if known).

A copy of the Request for Mediation shall be sent to CIDB together with

the appropriate Administrative Fee as prescribed by Appendix I to these

Rules.


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Response to Request for Mediation

4. The party who receives a Request for Mediation shall notify the other party and

CIDB within 7 days after receipt of the request whether any mediator nominated

by the initiating party is acceptable. If such mediator or mediators are not

acceptable to the party who receives the Request for Mediation, the parties shall

endeavour to reach agreement on the name of an acceptable sole mediator

within a further 7 days.

Appointment of the Mediator by the Parties

5. Where the parties agree on a mediator and the proposed mediator is willing to

serve, and is not disqualified under Rule 7 they will notify CIDB and appoint the

mediator. The parties and the mediator shall then sign the Mediation Agreement

as in Appendix II. The mediation shall then proceed in accordance with these

Rules. If the parties fail to agree on an acceptable mediator within the time

stipulated in Rule 4 they will notify CIDB using Form M4, who shall appoint a sole

CIDB Accredited Mediator in accordance to Rule 6, who is prepared to serve as

mediator and is not disqualified under Rule 7 .

6. Appointment Procedure of the Mediator by CIDB

(a) Mediators shall only be appointed from the CIDB Panel of Accredited

Mediators.

(b) The parties are required to complete Form M4 setting out

i. the names and contact details of the parties and their advisers, if any;

ii. the nature of the dispute; iii. the parties’ suggestion as to areas of expertise and/or primary

profession of the mediator; and iv. the names of mediators who have been considered by the parties

but rejected;

Form M4 should be accompanied by the appointment fee of RM100.00


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(c) Upon receipt of Form M4 and the appointment fee, CIDB shall consider

the parties suggestions as to areas of expertise and/or primary profession

and shall select the name of a mediator who appears to fulfill these

requirements.

(d) CIDB shall write within 7 days in confidence to the selected mediator

sending him or her the names of the parties and their advisers (if any) and

an outline of the nature of the dispute. CIDB shall ask the selected

mediator

i. if there is any conflict of interest should the selected mediator be

appointed, ii. if they have sufficient time to act in this dispute, iii. for details of their fee arrangements, iv. if they are willing to act in this dispute.

(e) The mediator shall forward the information to CIDB within 7 days from

receipt of request from CIDB. When CIDB are in receipt of the information

required by Rule 6 (d) above they shall write to the parties letting them

know that they intend to appoint the selected mediator within the seven

days of the date of the letter from the mediator unless one or both the

parties has reasonable cause to object to the choice. Such objection shall

be in writing. If the selected mediator has a conflict of interest, or

insufficient time to act in the dispute or is unwilling to act in the dispute,

then CIDB shall select another mediator.

(f) In the case of a valid objection being raised by one or other of the parties

or the selected mediator being unsuitable or unavailable CIDB will repeat

the selection process set out in Rule 6(d) above. In the event that the

second selected mediator is also either unsuitable or unavailable or is the

subject of a valid objection under Rule 6 (d) above, the process will be

repeated for a third and final time. If the third selected mediator is either

unsuitable or is not accepted by the parties, then CIDB will write to the


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parties informing them that they should either proceed to arbitration or

should endeavour to find another mediator from the Panel of CIDB

Accredited Mediators or re-examine the names and details of previously

rejected mediators.

Disqualification of Mediator

7. No person shall act as mediator in any dispute in which that person has any

financial or personal interest in the result of the mediation except by consent of

the parties. Before accepting an appointment, the proposed mediator shall

disclose to the parties and CIDB within 7 days, any circumstance likely to create

a presumption of bias or prevent a prompt resolution of the dispute. If either of

the parties takes objection to the proposed mediator within 7 days of the date of

disclosure, the proposed mediator shall not be appointed. In such case, the

CIDB shall nominate another person drawn from its panel of CIDB Accredited

Mediators. Prior to accepting appointment, the proposed mediator shall sign a

declaration of independence to the effect that there are no known circumstances

likely to give rise to justified doubts as to impartiality or independence other than

in respect of any circumstances previously disclosed.

Appointment of Co Mediator

8. Subject to agreement by the parties, and if deemed necessary and appropriate

as the case may be, a co mediator may be appointed by the mediator.

The Mediation Process

9. The mediator shall commence the mediation as soon as possible after his or her

acceptance of the appointment and shall use his or her best endeavours to

conclude the mediation within 42 days of his or her appointment. The

appointment shall not extend beyond a period of three months without the written

consent of the parties.


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Role of the Mediator

10. The Mediator shall prepare himself appropriately before the commencement of

the mediation, abide by the terms of the Mediation Agreement, the CIDB

Mediation Rules and the CIDB Code of Conduct. He may conduct the mediation

in such manner, as he or she sees fit, taking into account the circumstances of

the case, the wishes of the parties and the need for a speedy settlement of the

dispute. He shall also assist the parties in the drawing of any written settlement

agreement.

Role of the Parties and Identification of the Matters in Dispute

11. (a) The mediator may communicate with the parties together or with any party

separately, including private meetings and each party shall co-operate with

the mediator. A party may request a private meeting with the mediator at

any time. The parties shall give full assistance to enable the mediation to

proceed and be concluded within the time stipulated.

(b) The parties are free to agree how and in what form, they will inform the

mediator of their respective cases. Unless otherwise agreed, the parties

will provide the mediator with a brief written statement setting out their

respective positions with regard to the issues in dispute. With the

permission of the parties but at the mediator’s discretion such written

statements may be exchanged. The parties are required to bring with

them to the mediation meetings all information reasonably required for the

mediator to understand the matter in dispute.

Representation and Settlement Authority

12 Each party may be represented or assisted by persons of their choice. Each

party shall notify in advance the names and the role of such persons to the

mediator and the other party. Each party shall identify a person who has full

authority to settle the dispute on behalf of that party and shall confirm that

authority in writing.


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Termination of the Mediation

13 The mediation shall come to an end upon one of the following event

occurring, whichever is earlier :-

(a) the signing of a settlement agreement by the parties; or

(b) the written advice of the mediator after consultation with the parties that in

his or her opinion further attempts at mediation are no longer justified; or

(c) written notification by either party at any time to the other party and the

mediator (if appointed) that the mediation is terminated; or

(d) the time limit specified in Rule 9 has expired and the parties have not

agreed in writing to extend that time limit

Settlement Agreement

14. No settlement reached in the mediation will be binding until it has been reduced

to writing and signed by or on behalf of the parties.

Confidentiality and Legal Privilege

15 (a) All mediation sessions shall be private and shall only be attended by the

mediator, the parties and any individuals identified in Rule 12.

(b) The mediation process and all negotiations and statements and

documents prepared for the purposes of the mediation shall be

confidential and covered by “without prejudice” legal privilege. There shall

be no formal record of the mediation save any settlement agreement

produced under Rule 13 (a) and 14 and the mediator will destroy any

notes or other documents produced in the mediation.


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(c) The mediation shall be confidential to the extent permitted by law. Unless

agreed by the parties neither the mediator nor the parties nor any

individual identified in Rule 12 shall disclose to any person any

information regarding the mediation or any settlement terms or the

outcome of the mediation save as provided for in Rule 19.

(d) All documents and other information produced for or arising from the

mediation shall be privileged. Such documents and information shall not

be admissible as evidence or otherwise discoverable in any arbitration or

litigation in connection with the dispute referred to mediation, save for any

documents or other information which would in any event be admissible or

discoverable in any such arbitration or litigation.

(e) The parties shall not rely on or introduce as evidence in any arbitral or

judicial proceedings any admissions, proposals or views expressed by the

mediator or the parties during the course of the mediation.

Costs

16. (a) Unless otherwise agreed, each party shall bear its own costs regardless of

the outcome of the mediation or of any subsequent arbitral or judicial

proceedings. All 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, including:-

(i) the mediator’s fees and expenses. It includes travel and out-of-

pocket expenses of the mediator. The fees may be as

recommended in Appendix III to these Rules.

(ii) expenses for any witness or expert advice or opinion requested by

the mediator with the consent of the parties; and


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(iii) any administrative cost in support of the mediation including room

hire and CIDB’s Administrative Fee.

(b) Upon accepting the mediation appointment, the mediator shall prepare an

estimate on the mediator’s fees and expenses which shall be a basis for a

deposit designated in CIDB’s Schedule of Deposits, as prescribed in

Appendix IV to these Rules. The deposit shall be deposited by each of

the parties with CIDB within 7 days after the mediator accepts the

mediation appointment. The sums so deposited shall be used as a

contribution to the proper cost and expenses of the mediation including

the mediator's fees and expenses.

(c) The mediator may at any time during the mediation require the parties to

make further deposits to cover any additional anticipated fees and

expenses and suspend the mediation until such deposit is made.

(d) Any surplus funds deposited shall be returned to the parties, without

interest, at the conclusion of the mediation.

Mediator’s Role in Subsequent Proceedings

17 (a) The parties undertake that the mediator shall not be appointed without the

consent of the parties to act as arbitrator, adjudicator, representative,

counsel or expert witness of either party in any subsequent adjudication,

arbitral or judicial proceedings. This restriction applies in respect of the

dispute that was the subject of the mediation or to any other disputes

connected with the same contract.

(b) Neither party shall be entitled to call the mediator as a witness in any legal

or other proceedings arising out of the mediation or the same contract.


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Exclusion of Liability

18. The parties jointly and severally release, discharge and indemnify the mediator

and CIDB in respect of all liability whatsoever, whether involving negligence or

not, from any act or omission in connection with or arising out of or relating in any

way to any mediation conducted under these Rules, save for fraud or dishonesty.

Record of the Mediation

19. For the purposes of keeping statistics the mediator shall be required to inform

CIDB that a mediation has taken place and whether that mediation resulted in the

settlement of the dispute in whole or in part. Under no circumstances shall the

identity of the parties be disclosed nor the terms of any settlement agreement.


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APPENDIX I

RULE 3 (c)

Administrative Fee

The administrative fee payable to CIDB is RM100.00 for its administrative support. This

charge shall be borne equally by the parties.


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APPENDIX II

MEDIATION AGREEMENT

This Agreement is made on the …………………………day of ………...….……………….,

Between……………………………………………………………………………………………

………………………………………………………………………………………………………

And

………………………………………………………………………………………………………

………………………………………………………………………………………………………

(hereinafter called the Parties)

and

………………………………………………………………………………………………………

………………………………………………………………………………………………………

(hereinafter called the Mediator)

WHEREAS :

(1) The Parties hereby appoint the Mediator to assist them to resolve the dispute

between the Parties as follows :

………………………………………………………………………………………………

………………………………………………………………………………………………

………………………………………………………………………………………………

(hereinafter called the Dispute)


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(2) The mediator accepts such appointment by the parties.

Now It Is Hereby Agreed As Follows :

(a) The Mediation shall be conducted and be governed under the CIDB Mediation

Rules 2000.

(b) The parties shall attend or be represented before the Mediator by persons with

full authority to settle the Dispute. The parties agree to inform the Mediator

immediately should they not have authority to settle.

(c) The parties agree to bear equally the mediator’s fees and charges and all other

expenses incidental to the mediation process.

(d) The parties agree to abide by any settlement and effect the terms thereof

reached through the mediation.

(e) The Mediator shall not be liable to a Party for any settlement, act or omission in

assisting the parties to resolve the Dispute unless the act or omission is

fraudulent or dishonest.

(f) The parties jointly and separately indemnify the Mediator against any claim

and/or liabilities for any settlement, act or omission in assisting the parties to

resolve the Dispute unless the act or omission is fraudulent or dishonest.

(g) A party may terminate the dispute resolution process at any time after

consultation with the mediator. The Mediator may terminate the dispute

resolution process at any time after consultation with the parties.


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Parties :

……………………..…….….……..…… …...……………...………..……………

Name :…………………………………. Name :…………………………………

Nric number…………………..….……. Nric number………………...………...

Designation :…………..…………..…. Designation :…...………………..……

Representing :…………………….…… Representing : ……………………….

Witness : Witness :

…………………………….……………. ……………………………..……………………

Name :…………………………………. Name : …………………………………………

Nric number : …………………….……. Nric number…………………………..……….

Date :………………………………..….. Date :………………………….…………..……

Mediator

…………………………….………………….. Name :……………………………………….. Date : ……………………………………….


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APPENDIX III

RULE 16 (a) (i)

RECOMMENDED FEE

1. The recommended fees by mediators is in the range of RM200.00 to RM500.00

per hour. Mediators may however change this rate as they deem fit.

2. A retainer fee in the range of RM2,000.00 to RM5,000.00 is payable to the

mediator for all initial and preparatory work.


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APPENDIX IV

RULE 16(b)

SCHEDULE OF DEPOSITS

The deposits by each of the parties with CIDB is as follows : 1. An initial deposit of half of the estimated cost of the mediators fees and expenses. 2. The parties may be required to make further deposits where the initial deposit is

deemed insufficient 3. The above deposit will be borne equally by each party.


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FORM M1

Construction Industry Development Board Malaysia Application to become an Accredited Mediator

Name and Title Date of Birth/Nationality

Firm or Company

Profession

Correspondence Address

Contact Tel Fax E-mail Mediator Related Training and Experience: (Mediation Training including trainer organisation, dates, duration and certificates of attendance if available) Experience as a Mediator (giving approximate date and total number of mediations or evidence of the satisfactory completion of two mediation simulations) Other mediation related experience (e.g. as a trainer, coach, assessor, lecturer) Remarks – Please provide any other relevant details not covered above. 1. Please complete this form in block capitals. If there is insufficient space, please provide details on

separate sheets adopting the same format. 2. By signing this form you are confirming that you are familiar with and will adhere to the CIDB Mediator

Code of Conduct. 3. Information on this form may be used by CIDB for the purposes of validation of the information

provided. Please sign the form to confirm its accuracy. Signature Date


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FORM M1 - F

Construction Industry Development Board Malaysia Application for Registration From Foreign Mediators

Name and Title Date of Birth/Nationality

Firm or Company

Profession

Correspondence Address

Contact Tel Fax E-mail Mediator Related Training and Experience: (Mediation Training including trainer organisation, dates, duration and certificates of attendance if available) Experience as a Mediator (giving approximate date and total number of mediations or evidence of the satisfactory completion of two mediation simulations) Other mediation related experience (e.g. as a trainer, coach, assessor, lecturer) _________________________________________________________________________________________ CIDB Mediation Rules (2000)

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Details of parties to the mediation Party A : Name : Address : Tel, facsimile and e-mail: Party B : Name : Address : Tel, facsimile and e-mail: Brief Statement of dispute to be mediated _______________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Remarks – Please provide any other relevant details not covered above. 1. Please complete this form in block capitals. If there is insufficient space, please provide details on

separate sheets adopting the same format. 2. By signing this form you are confirming that you are familiar with and will adhere to the CIDB Mediator

Code of Conduct. 3. Information on this form may be used by CIDB for the purposes of validation of the information

provided. Please sign the form to confirm its accuracy. Signature

Date


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Certification as

a CIDB Accredited Mediator

It is hereby certified that the mediator specified below has complied with the CIDB

Mediator Accreditation Requirements and is now a member of the CIDB Panel of

Accredited Mediators. This membership is subject to the conditions as stipulated at the

back of this Certificate.

Name of Mediator :

Address :

Commencement Date :

Membership Expiry Date :

…………………………………………….. Chief Executive of CIDB Malaysia Seal ( ) Dated : ……………………………..

FORM M2 _________________________________________________________________________________________ CIDB Mediation Rules (2000)

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CONDITIONS OF ACCREDITATION

1. General Conditions

i. This Certificate is non-transferable ii The Board reserves the right to review the accreditation of the Mediator

from time to time 2. Panel Membership Panel membership is for a four year period and renewal of membership will be subject to further assessment against the following :

i. The Accredited Mediator demonstrating to CIDB that he/she has

undertaken at least ten (10) hours continuing professional development in mediation or alternative dispute resolution; or

ii. Has satisfactory completed at least two simulated mediations or has been appointed as mediator to at least two construction mediations or a combination thereof; or

iii. Has satisfactory completed one simulated mediation and an appointment to one construction mediation.

3. Compliance with CIDB Code of Conduct for Mediators. The Accredited Mediator is required to comply with the CIDB Code of Conduct for Mediators. 4. Registration Fee

A registration fee of RM200.00 or any revision thereto is payable to CIDB upon renewal of panel membership.


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Certificate of Registration for

Foreign Mediator

It is hereby certified that the Foreign Mediator specified below has been granted

registration to carry out mediation of the dispute stated in this Certificate. This

registration is subject to the conditions as stipulated at the back of this Certificate.

Name of Foreign Mediator :

Permanent Address :

Address in Malaysia :

Brief description of dispute :

…………………………………………….. Chief Executive of CIDB Malaysia Seal ( ) Dated : ……………………………..

FORM M2 - F _________________________________________________________________________________________ CIDB Mediation Rules (2000)

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CONDITIONS OF REGISTRATION

1. General Conditions

i. This Certificate is non-transferable ii This Certificate allows the holder to mediate only the dispute specified in

this Certificate. 2. Validity

This Certificate is valid until settlement, suspension or termination of the mediation whichever is earlier.

3. Compliance with CIDB Code of Conduct for Mediators.

The Foreign Mediator is required to comply with the CIDB Code of Conduct for Mediators.


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FORM M 3 Standard Form Curriculum Vitae for Accredited Mediators

NAME: QUALIFICATION AND MEMBERSHIP OF PROFESSIONAL BODIES: PRESENT POSITION NAME OF COMPANY ADDRESS TEL NUMBER FAX NUMBER E-MAIL ADDRESS DATE OF BIRTH LANGUAGES/DIALECTS (Spoken to a level that you can conduct a mediation in) MEDIATION TRAINING MEDIATION EXPERIENCE: As a mediator As an Advocate/Party/Adviser CAREER DETAILS (Give year, position held and organisation) OTHER ALTERNATIVE DISPUTE RESOLUTION EXPERIENCE (Including negotiation, partnering, membership of DRB etc) _________________________________________________________________________________________ CIDB Mediation Rules (2000)

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FORM M4

Construction Industry Development Board Malaysia

APPLICATION FOR THE APPOINTMENT OF AN ACCREDITED MEDIATOR

This form shall be used to apply to the Construction Industry Development Board

Malaysia (CIDB) for the appointment of an Accredited Mediator.

1 THE UNDERSIGNED HEREBY APPLY TO CIDB FOR THE APPOINTMENT OF A

MEDIATOR

2 DETAILS OF PARTIES:

FIRST PARTY: SECOND PARTY: Name Name Address Address

Tel No Tel No Fax No Fax No E-mail E-mail

Lawyer / Adviser (If any):

Lawyer / Adviser (If any):

Name Name Address Address

Tel No Tel No Fax No Fax No E-mail E-mail


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3 OUTLINE OF THE MATTERS IN DISPUTE:

(Brief particulars of nature, circumstances and location of dispute or disputes and

the amount in dispute are all that is required.) ______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

4 PARTIES’ SUGGESTIONS AS TO MEDIATOR EXPERTISE AND/OR PRIMARY

PROFESSION.

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

______________________________________________________________________

5 NAMES OF CIDB ACCREDITED MEDIATORS CONSIDERED BUT REJECTED BY

THE PARTIES

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________


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________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

________________________________________________________________

6 APPOINTMENT FEE: A cheque payable to “Construction Industry Development

Board Malaysia” for RM 100.00 for payment of the appointment fee is enclosed.

7 CERTIFICATION:

We hereby certify that the details contained herein are true and accurate.

(SIGNED)________________________ Date __________________________

Name and Capacity _______________________________________________

________________________________________________________________

(FIRST PARTY)

(SIGNED)________________________ Date ___________________________

Name and Capacity _______________________________________________

________________________________________________________________

(SECOND PARTY)


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CIDB Mediation Rules

Documents

Transcript of CIDB Mediation Rules