Arb-Med-Arb Proceedings

If the parties wish to conduct Arb-Med-Arb proceedings, the following addition to the model arbitration clause should be included:

Furthermore, the parties agree to jointly consider, after due initiation of the arbitration, to conduct proceedings in accordance with the Mediation Rules (Vienna Mediation Rules) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber. Settlements that are generated in such proceedings shall be referred to the arbitral tribunal appointed in the arbitration. The arbitral tribunal may render an award on agreed terms reflecting the content of the settlement (Article 37 paragraph 1 Vienna Rules).

The parties may also wish to stipulate the following:

(1) Number of Mediators
(if more than one mediator is agreed upon)

The number of mediators shall be: [insert number (e.g. two)].
The rules of appointment apply to each mediator.

(2) Location of the Mediation Sessions

The location of the mediation sessions shall be:
□     [insert location].
□    determined by the mediator.

(3) Language

The language(s) to be used in the mediation proceedings is/are: [insert language(s)].

(4) Appointment of the Mediator

The mediator[s] shall be
□     [insert name(s)], subject to confirmation by the Secretary General of VIAC or the VIAC Board in accordance with the Vienna Mediation Rules. If they are not confirmed, the appointment shall be made in accordance with the Vienna Mediation Rules.
□     jointly nominated by the parties. If the parties do not agree on the mediator[s], the appointment shall be made by the VIAC Board in accordance with the Vienna Mediation Rules.

(5) Qualifications of the Mediator

The mediator[s] shall have
□     the appropriate qualifications to perform their function[s].
□     the appropriate qualifications as well as the following qualifications: [insert qualifications specified by the parties].
If the VIAC Board appoints, the appropriate qualifications shall be deemed to be given if the mediator[s] are listed on the VIAC List of Practitioners in International Mediation and ADR and the VIAC Board has no doubts as to the ability of the mediator[s] to duly carry out their mandate.

(6) Supplementary Arbitral Proceedings

The parties agree that, if one party wishes to resolve their disputes or claims outside of mediation, these shall be finally settled in accordance with the Rules of Arbitration (Vienna Rules) of the Vienna International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC) by one or three arbitrators appointed in accordance with these Rules.

(7) Exclusion of Parallel Proceedings

The parties agree to first refer any disputes or claims under this agreement to mediation. Only if it has not been resolved by mediation within [insert a time limit (e.g. 90 days up to a maximum of six months)] from commencing the proceedings as defined in the Vienna Mediation Rules, this dispute or claim may be initiated or continued in court, arbitral, or other proceedings with the exception of proceedings to obtain provisional or protective measures.