Commercial mediation is an effective dispute resolution method, favored by businesses and business organizations in the modern legal environment. This method provides a flexible, cost- and time-saving solution for disputing parties. The following article by Long Phan will help customers better understand current commercial mediation conditions and processes.
Notes when conducting commercial mediation today
Regulations on commercial mediation?
Regulations on commercial mediation are stated in Clause 1, Article 3 of Decree 22/2017/ND-CP, which states that this is a method of resolving commercial disputes based on the agreement of the parties and mediated by a commercial mediator.
Commercial mediation is a popular and effective method of resolving commercial disputes, but this method has the following advantages and disadvantages:
Advantage:
Low cost: Mediation usually takes place quickly, resolution time is shorter than other methods, reducing costs for the parties.
Save time: The mediation process can be completed in 1 day, helping to avoid business disruption like when resolving through court or arbitration.
Respect the consensus of the parties: The parties decide for their own interests, not being imposed by the mediator. This is a method to ensure maximum self-determination in disputes involving third parties. And without litigation, mediation aims at consensus, helping to maintain or improve cooperative relations between the parties.
Flexible procedures: The process is agreed between the parties or according to the regulations of the mediation organization, not as rigid as a court or arbitration.
High security: Information is kept confidential, even between disputing parties.
Disadvantages:
Voluntary nature: One party can stop mediation at any time, leading to time and expense if they have to switch to another method.
No binding decision: The mediator only makes suggestions, cannot impose, so the dispute may drag on.
Possibility of not being enforced: According to Clause 1, Article 15 of Decree 22/2017/ND-CP, when the parties reach a successful conciliation agreement, this result is valid for voluntary implementation. However, for successful conciliation results to be enforceable, the parties need to request the Court to recognize the provisions in Article 16 of Decree 22/2017/ND-CP. If the Court does not recognize it, this agreement is still valid for voluntary implementation, but cannot be enforced compulsorily according to the law on enforcement of civil judgments.
Issues that need to be kept in mind when resolving disputes by commercial mediation
Principles of dispute resolution by commercial mediation
Dispute resolution by commercial mediation is clearly stipulated in Article 4 of Decree 22/2017/ND-CP. Accordingly, when conducting commercial mediation, it is necessary to comply with the following principles:
Voluntariness and equality: Disputing parties participate in mediation completely voluntarily and are equal in rights and obligations.
Confidential information: Information related to the conciliation case must be kept confidential, unless the parties agree in writing or otherwise provided by law.
Compatibility with law and social ethics: The content of the conciliation agreement does not violate legal prohibitions, is not contrary to social ethics, is not intended to shirk obligations, and does not violate the rights of third parties.
Conditions for resolving disputes by commercial mediation
According to Article 6 of Decree 22/2017/ND-CP, disputes can be resolved by commercial mediation if the parties have a mediation agreement. And the parties can agree to resolve disputes by mediation before, after a dispute occurs or at any time during the dispute resolution process.
In addition, based on Article 11 of Decree 22/2017/ND-CP, a conciliation agreement may be established in the form of a conciliation clause in a contract or in the form of a separate agreement and established in writing.
Conditions that must be met for commercial mediation
Select and appoint commercial mediators
According to Article 12 of Decree 22/2017/ND-CP, commercial mediators are selected or appointed as follows:
Select a mediator: The disputing parties can agree to select a mediator from the list of mediators of the commercial mediation organization or the list of case mediators announced by the Department of Justice of the province or centrally run city.
Appoint a mediator through a mediation organization: The appointment of a commercial mediator through a commercial mediation organization is carried out in accordance with the Mediation Rules of the commercial mediation organization.
Procedure for conducting commercial mediation
According to Chapter III of Decree 22/2017/ND-CP, the order and procedures for commercial mediation are prescribed as follows:
Mediation agreement and selection of mediator
Regarding the settlement agreement:
The settlement agreement can be established as a clause in a contract or as a stand-alone document.
It is a mandatory requirement that the settlement agreement be in writing.
Regarding choosing a mediator:
The parties can agree to select a mediator from the list provided by the commercial mediation organization or the list of commercial mediators published by the Department of Justice.
Where the conciliator is appointed through a commercial conciliation organisation, the selection will be in accordance with the conciliation rules of that organisation.
Order and procedures for commercial mediation
The parties have the right to choose the Mediation Rules of the commercial mediation organization to conduct the mediation or to agree on the order and procedures of mediation. If the parties do not agree on the order and procedures of mediation, the commercial mediator shall conduct the mediation according to the order and procedures that the commercial mediator deems appropriate to the circumstances of the case, the wishes of the parties and are approved by the parties.
The dispute may be conducted by one or more commercial mediators as agreed by the parties.
At any point during the mediation process, the commercial mediator has the right to make proposals to resolve the dispute.
The location and time of mediation shall be conducted according to the agreement of the parties or at the choice of the commercial mediator in case the parties do not have an agreement.
Conciliation results and recognition of results
When the parties reach an agreement during the mediation process, a document recording the successful mediation results will be drawn up. This document is effective and enforceable for relevant parties according to the provisions of civil law. The main content of the document on successful conciliation results includes:
Grounds for conducting conciliation;
Basic information about the parties;
Main content of the case;
Agreement reached and solutions implemented;
Other contents as agreed by the parties in accordance with the provisions of law.
This document must be signed by the parties and the commercial mediator to ensure legal validity. In addition, according to Article 16 of Decree 22/2017/ND-CP, documents recording successful conciliation results can be considered and recognized according to the provisions of civil procedure law. This recognition helps ensure that conciliation results are legally valid and enforceable.
Note: In case successful conciliation results are not achieved, the parties have the right to continue conciliation or request dispute resolution through Arbitration or Court according to the provisions of law.
Therefore, resolving disputes by commercial mediation is considered a flexible approach, highly voluntary and respects the parties’ right to choose in dispute resolution. Thanks to that, this method is increasingly popular in business relationships.
Effective consulting and dispute resolution services arising in commercial activities at Long Phan
Long Phan is proud to be a reputable unit, specializing in providing professional consulting and commercial mediation services. With a team of experienced experts, we are committed to bringing the optimal and most effective solutions to our customers’ disputes. Our services include:
Consulting and supporting the development of commercial agreements and contracts to limit risks.
Support professional commercial mediation with flexible methods, ensuring fairness and transparency to help parties reach an agreement in the spirit of cooperation and goodwill.
Support and advise on quick and effective dispute resolution solutions.
Represent or support clients in conciliation, arbitration, or litigation sessions at Court to ensure the legitimate rights and interests of clients in all stages of the dispute.
Commercial mediation is an effective dispute resolution method, helping parties maintain long-term business cooperation. If you need detailed advice in resolving commercial disputes, please contact Long Phan immediately via the hotline: 0906735386. We always put the success and interests of our customers first, and are ready to accompany you on the path to finding the most effective solution.
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Chuyên gia Nguyễn Khắc Xuân
Nguyen Khac Xuan is a seasoned expert in the fields of insurance consulting, appraisal, and commercial dispute resolution. With extensive knowledge and high professional skills, he has made significant contributions to the development of leading companies in the industry.