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ARBITRATION & MEDIATION - Coggle Diagram

- - - - Mutual Agreement (both need to agreed on the arbitrators chosen to lead the disputes resolution)
      - Default appointment procedure (if any party do not agree, then the arbitration law will be used as guidance in appointment procedure)
    - - Independent (ensuring fairness)
      - Expertise (may impose the expertise knowledge)
      - Decision-making authority (Arbitrators have the power to assess evidence, and make decision based on the submission and argument presented)
      - Procedural Control (Manage procedural aspect, Exp; conduct hearing, receive evidence, setting timelines, ensuring the proceeding is fair)
  - - - Arbitrators & Parties involved will discuss on procedural matters, timetable for arbitration, etc
    - - Each party will exchange relevant documents and evidence
    - - Both parties will present their arguments, evidences and witnesses
    - - Arbitrator will render an award (aka arbitral award) after assessing all arguments/evidences
      - The award will be final and binding
    - - The arbitral award will be enforceable in court
      - But, court have limited grounds on which enforcement can be refused (usually incl issues such as fraud) - (also help to maintain the integrity of the arbitration process)
  - - - Party will submit an application to the relevant court with original copy of arbitral award
    - - To ensure the documents submitted are valid
      - Ensure the award given in accordance to the requirements outline by national laws
    - - Often include issues such as invalid arbitration agreements
    - - Arbitral award will be valid, making it legally binding on the parties
  - - - Related to progress payments, VO, final acc settlements
    - - Conflict in interpreting contractual terms, specs, scope of works etc
    - - Claims due to delays, disruptions due to negligence, EOT etc
    - - Quality of workmanship, non-compliance with specs etc
    - - Contract termination/ Breach
- - - - Mediator will introduce themselves, explain the mediation process
      - Established ground rules, setting the tone for constructive communication
    - - Each party will outline their perspectives, concerns, objectives
    - - Mediator facilitate the joint discussion
      - Each party express their viewpoints, interest, and explore area of agreement and disagreement
    - - Mediator meets each party separately to understand their interest, clarify misunderstanding, explore potential solutions confidentially etc
    - - Parties work together (To find the core issues, interest, & brainstorm possible options and solutions)
    - - Parties will nego, discuss, evaluate the proposed solutions
      - Mediator will help parties in reality testing (consider practicality & viability of proposed solutions)
    - - Parties will agrees on terms/solutions after nego
      - Mediator will assist the process of agreement (Ensure all terms were understood)
    - - Mediator concludes the session (Ensure all parties understand the agreements made)
      - Mediator may follow-up to ensure the compliance to the agreement made
  - - - Agreement crafter form mutual consent, where terms of resolution is outlined
    - - Agreements can be legally enforceable, subject to certain relevant laws of jurisdiction
    - - (In certain disputes) - Court approval is needed for the agreement to become enforceable
  - - - Aims to address disputes (DELAYS, PAYMENTS, DEFECT ETC)
    - - Specific legislation for each country (Exp: Malaysia - AIAC Mediation Rules)
    - - Mediation often included in construction contract
    - - Mediation can occur at various stages of construction
      - Involve different stakeholders