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.
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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CIDB Mediation Rules (2000) 1
home page at www.cidb.gov.my or from the construction portal at
www.econstruction.com.my
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.
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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CIDB Mediation Rules (2000) 2
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.
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.
(a) Mediators shall only be appointed from the CIDB Panel of Accredited
Mediators.
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;
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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
(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.
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CIDB Mediation Rules (2000) 6
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.
(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.
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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 :-
(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.
(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.
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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.
(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.
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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
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APPENDIX II
MEDIATION AGREEMENT
Between……………………………………………………………………………………………
………………………………………………………………………………………………………
And
………………………………………………………………………………………………………
………………………………………………………………………………………………………
and
………………………………………………………………………………………………………
………………………………………………………………………………………………………
WHEREAS :
(1) The Parties hereby appoint the Mediator to assist them to resolve the dispute
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
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(2) The mediator accepts such appointment by the parties.
(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
(c) The parties agree to bear equally the mediator’s fees and charges and all other
(d) The parties agree to abide by any settlement and effect the terms thereof
(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
(g) A party may terminate the dispute resolution process at any time after
consultation with the mediator. The Mediator may terminate the dispute
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Parties :
……………………..…….….……..…… …...……………...………..……………
Witness : Witness :
…………………………….……………. ……………………………..……………………
Mediator
…………………………….…………………..
Name :………………………………………..
Date : ……………………………………….
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APPENDIX III
RECOMMENDED FEE
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APPENDIX IV
RULE 16(b)
SCHEDULE OF DEPOSITS
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
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FORM M1
Date of Birth/Nationality
Firm or Company
Profession
Correspondence
Address
Experience as a Mediator (giving approximate date and total number of mediations or evidence of
the satisfactory completion of two mediation simulations)
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
Date of Birth/Nationality
Firm or Company
Profession
Correspondence
Address
Experience as a Mediator (giving approximate date and total number of mediations or evidence of
the satisfactory completion of two mediation simulations)
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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:
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
Name of Mediator :
Address :
Commencement Date :
……………………………………………..
Chief Executive of CIDB Malaysia Seal
( )
Dated : ……………………………..
FORM M2
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CONDITIONS OF ACCREDITATION
1. General Conditions
2. Panel Membership
Panel membership is for a four year period and renewal of membership will be
subject to further assessment against the following :
4. Registration Fee
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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
Permanent Address :
Address in Malaysia :
……………………………………………..
Chief Executive of CIDB Malaysia Seal
( )
Dated : ……………………………..
FORM M2 - F
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CONDITIONS OF REGISTRATION
1. General Conditions
2. Validity
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)
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FORM M4
This form shall be used to apply to the Construction Industry Development Board
Malaysia (CIDB) for the appointment of an Accredited Mediator.
MEDIATOR
2 DETAILS OF PARTIES:
Tel No Tel No
Fax No Fax No
E-mail E-mail
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.)
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PROFESSION.
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THE PARTIES
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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 _______________________________________________
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(SECOND PARTY)
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