Mechanism for resolving commercial contract disputes through mediation

Resolving commercial contract disputes through mediation is becoming increasingly popular and popular. This solution is highly appreciated thanks to its flexibility and effectiveness. In this article, we will learn together about mechanisms to resolve commercial contract disputes through mediation and why it has become a popular choice among businessmen today.

What is a commercial contract dispute?

A commercial contract dispute is a situation that occurs when the parties involved in a contract do not comply with the contractual agreement. This can arise from many reasons, including misunderstanding, conflict of interest, or violation of contract terms. Therefore, resolving disputes effectively and fairly is very important in the business process.

Basic elements of commercial contract disputes:

• A commercial contractual relationship exists between the parties;
• There is a breach of obligations (or alleged breach of obligations) by one party in that relationship;
• There is disagreement between the parties regarding the violation or handling of consequences arising from the violation;
• Commercial contract disputes often arise from contract violations, but not all violations lead to contract disputes.

Conditions for resolving commercial contract disputes by mediation

What is commercial contract dispute resolution by mediation?

Mediation is a method of resolving disputes with the participation of a third party as a mediator. This third party is responsible for supporting and persuading the disputing parties to find solutions to resolve the dispute that has arisen. This method is considered a step forward in dispute resolution by negotiation.

(Pursuant to Clause 1, Article 3 of Decree 22/2017/ND-CP).

When a dispute occurs, it is difficult for people involved to see and evaluate the problem objectively. Because everyone wants to try to gain more for themselves, but it is difficult to be willing to give up the small things to achieve the big common goal of all parties.

Therefore, the presence of a third party as a guide, helper, suggestor, and facilitator of “cooperation” throughout the entire process and support the parties in untying the remaining “knots” in the dispute resolution process without fear of being influenced or influenced by other factors affecting decision making.

Conditions for dispute resolution

Disputes are resolved by commercial mediation if the parties have a mediation agreement. The mediation agreement can be established in the form of a mediation clause in the contract or in the form of a separate agreement. The settlement agreement is established in writing. The parties may agree to resolve disputes through conciliation before, after a dispute occurs or at any time during the dispute resolution process.

Pursuant to Article 6 of Decree 22/2017/ND-CP and Article 11 of Decree 22/2017/ND-CP.

Mediation process for commercial contract disputes

Mediation agreement

The mediation agreement can be established in the form of a mediation clause in the contract or in the form of a separate agreement and established in writing.

Appoint a commercial mediator

Commercial mediators are agreed upon by the parties. Select from the list of commercial mediators of the commercial mediation organization or from the list of commercial mediators announced by the Department of Justice of the province or centrally run city.

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.

Pursuant to Article 12 of Decree 22/2017/ND-CP.

Procedures for conciliation

• The parties have the right to choose the Mediation Rules of the commercial mediation organization to conduct mediation or agree on the mediation order and procedures themselves.
• In case the parties do not have an agreement on the order and procedures for mediation, the commercial mediator shall conduct 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 as agreed by the parties or as chosen by the commercial mediator in case the parties do not have an agreement.
• When the mediation session ends, the mediator must prepare a minutes of mediation. In case of successful conciliation, make a record of successful conciliation with the signature of the conciliator and the signatures of the parties in the conciliation case. On the contrary, if the case or conciliation fails and continued conciliation cannot achieve results, the conciliator must still make a record. The minutes clearly state the reason for failed mediation and require both parties to sign. Then instruct the parties to exercise their right to sue and request the Court to resolve the dispute.

Rights and obligations of disputing parties during the conciliation process

Rights of disputing parties

• Choose the mediation process and procedures, commercial mediator, location and time to conduct mediation;
• Agree or refuse mediation; request a suspension or termination of mediation.

Request that the mediation be conducted publicly or privately

• Express your will and decide on the content of mediation;
• Other rights as prescribed by Decree 22/2017/ND-CP and relevant laws.

Obligations of the disputing parties

• Correctly present the truth and details of the dispute, provide information and documents related to the dispute at the request of the commercial mediator;
• Implement successful conciliation results;
• Pay remunerations and costs for commercial mediation services, unless otherwise agreed by the parties;
• Other obligations according to the provisions of Decree 22/2017/ND-CP and relevant laws.

Consulting on resolving commercial contract disputes

In the business environment, conflicts and disputes over commercial contracts are not uncommon. However, the right and effective approach to resolving these conflicts can change the entire way a business operates. To assist in resolving disputes, Long Phan provides consulting services surrounding the following issues:

• Consulting on customers’ strengths and weaknesses in arising commercial disputes;
• Consulting on choosing flexible and effective dispute resolution methods;
• Consulting on documents, procedures, and implementation methods for each method of dispute resolution;
• Representing or working with customers to discuss, work, and negotiate with third parties or competent authorities;
• Support consulting on related issues after the dispute is resolved.

Thus, through analyzing the mechanism for resolving commercial contract disputes by mediation, we realize the power of mediation in resolving commercial conflicts. This method not only helps reduce risks and costs but also creates an environment of peace, and cooperation between parties. We have provided all relevant and useful information for you. If you need advice, please contact Long Phan via the hotline 0906735386.