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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
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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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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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