ISLAMABAD: Mediator, Ashtar Ausaf Ali, has started the mediation process between K-Electric (KE) and government entities in pursuance of the notification of February 23, 2024, issued by the Power Division and the Mediation Agreement of February 16, 2024, well-informed sources told Business Recorder.
A high-level timeline and terms of reference for the mediation process were previously shared with all parties via e-mail on February 19, 2024.
The sources said as per clause-2 of the Mediation Agreement, the parties have agreed to submit the following claims to Mediation; (i) what is the amount of outstanding receivables of KE from KWSB (Karachi Water and Sewerage Board); (ii) what is the amount of tariff differential subsidy owned by GoP to KE, including but not limited to any procedural delays; (iii) what is the amount of payable by KE to National Transmission and Despatch Company (NTDC); (iv) what is the amount payable by KE to SSGC; and (v) whether any other payments are due to the parties.
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The mediator has requested the parties concerned to provide statements of claim along with all relevant documentation within 15 days of the commencement notice issued on March 4, 2024.
According to sources, the parties have been requested to nominate, in writing to the mediator, a key contact/ resource, responsible for facilitating the mediation process on behalf of the Government of Pakistan.
The parties have also been requested to nominate, in writing, an authorised lead representative of the government of Pakistan who shall attend all mediation proceedings, and shall have the complete requisite authority to execute any potential settlement agreement on behalf of the Government of Pakistan.
The details of the first mediation session including the date and venue shall be communicated in due course after consultation with all parties.
As per the Terms of Reference, the obligation of the mediator shall; (i) ensure the Terms of Reference set forth during the initial stages of mediation are adhered to at all times by the parties; (ii) report any conflict of interest or other relevant matter which may call into dispute the integrity of the mediation process; (iii) attend any meeting related to the mediation process, procedure, terms, etc called by the parties or the mediator; (iv) contract representatives of the parties involved and relevant stakeholders before and during the mediation to assist in facilitating and driving the mediation to a mutually agreeable outcome; (v) ensure every effort to manage the process effectively and efficiently to the best of the mediator’s knowledge and experience and without any influence caused by internal or external factors; (vi) provide parties involved with equal and sufficient opportunity to represent their position and encourage their involvement in the decision making process ; and (vii) explain all the details of the mediation process to the parties and/or representatives as reasonably needed.
Obligation for the parties; the parties involved shall; (i) agree and adhere to the Terms of Reference set forth by the Mediator; (ii) each prepare and provide a summary of their claims and share all documentation requested in a timely manner; (iii) appoint a key contact/ resource dedicated to facilitating the mediator; (iv) ensure a lead representative of the party with full authority to settle the dispute attends the mediation and signs the mediation agreement and any potential settlement agreement; (v) ensure they act in an honest, respectful, responsible manner, and in good faith throughout the mediation; (vi) agree to abide by the signed mediation agreement and any potential settlement agreement; (vii) abide by the privacy and confidentiality provisions throughout the mediation process; (viii) report and alert the mediator to any conflict of interest that may arise during the process; (ix) adhere to the timelines set forth for the mediation and do their best to ensure there are no delays; and (x) attend all joint meetings and prioritize their availability for individual meetings requested or sought by the mediator.
Core Obligations for all;- all parties shall adhere strictly to the following privacy and confidentiality clauses; (i) ensure persons present at mediation sessions are only those authorized and approved to be involved, and if involvement of other persons in the mediation is required, consent of all parties shall be required; (ii) if any party cause themselves to be represented, such representative shall have the authority to perform all legal acts that are necessary for the mediation, including entering into agreement(s).
If requested a duly authorized power of attorney must be produced confirming such authority by the mediator; (iii) any reports, drafts, opinions, evidence, or documents of any kind shared by the mediator during the course of the mediation shall not be circulated further without express authority by the mediator; (iv) the entire mediation process shall be strictly confidential and remain so even after 6/8 mediation has been completed. All parties undertake to ensure there is no disclosure either directly or indirectly to any third party, including courts and arbitrators. The information shared, positions adopted, proposals made, either orally or in writing, shall remain strictly confidential and without prejudice; (v) the parties shall not reveal, quote from, refer to, paraphrase, or in any other way invoke any content of documents that have been revealed, shown, or disclosed either orally or otherwise during the mediation by any other party involved in the mediation. This duty does not apply to information which may be available publicly or has already been revealed prior to the mediation; (vi) those documents which may be admissible in arbitrarily or judicial proceedings will not be rendered inadmissible by reason of their use in mediation.
Conclusion and Mediation: The mediation may end in a number of ways; (i) by settlement of the dispute in whole or part, when all agreed matters shall be written down and transmitted to the parties who are then bound to them; (ii) by virtue to the mediator realizing that the negotiations between the parties are moving towards an unreasonable or illegal conclusion; (iii) by the mediator who has concluded that the parties cannot reach a settlement for the time being; (iv) by one or more parties abandoning the mediation before any settlement is achieved; (v) by withdrawal of the mediator in response to the substantial breach in the Terms of Reference; (vi) by a written statement from the mediator to the parties indicating that the mediation has ended; (vii) by a written statement from either party to the other party or parties that it wished to withdraw and abandon the mediation to its extent; (viii) the termination of the mediation shall leave all obligations of privacy and confidentiality and payment of parties intact; (ix) the parties involved waive their right to use anything that has transpired during the mediation in evidence against each other and/ or against the mediator, nor examine or cause each other, the mediator, or other person involved in the mediation to be examined as a witness or otherwise regarding information supplied and/or recorded in connection with the mediation, or regarding the contents of the agreement; and (x) all information supplied to the mediator by either party in the absence of the other party, shall be treated by the mediator as strictly confidential, unless and insofar as the part in question has explicitly given its consent to the disclosure of that information during the mediation.
Settlement Agreement: - In the event that there is a partial or full agreement by the parties, (i) the mediator shall facility the drawing up of a settlement agreement where the agreed–upon terms are explained in detail and are subject to the consent or all parties; (ii) The mediator shall ensure that the agreements made by the parties are properly recorded in an agreement. The parties shall be solely responsible for the concerns of the agreement. The mediator shall have the right to seek the advice of an external expert if required; (iii) the mediator shall not be liable for any contents of the agreement concluded by the parties, nor for any damages that arise from the same; (iv) the parties shall jointly decide and record in writing to what extent the contents of the agreement concluded shall remain confidential; and( v) once the settlement agreement has been drafted and has been duly signed by both parties, the mediator shall approach the relevant stakeholders and court(s) if need be for the submission of the settlement agreement and the court(s) shall thereafter issue decree in terms of the settlement agreement and any and all pending legal suits/ applications/ petitions insofar as they relate to the same parties.
The dispute shall be withdrawn by the relevant parties and no longer remain admissible.
Copyright Business Recorder, 2024
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