Where any agreement, submission, or reference provides for mediation by Track Second — or expressly refers to mediation under the Track Second Mediation Rules — the parties are deemed to have agreed that the mediation shall be conducted in accordance with these Rules, including any amended or affiliated rules adopted by Track Second that take effect prior to the commencement of the mediation. These Rules may be varied only by a written agreement executed by all parties.

These Rules govern the mediation of any present or future disputes for which the parties seek an amicable resolution. They apply equally to transactional mediations, deal mediations, and assisted deal-making processes, where the parties agree to employ mediation to facilitate the conclusion or settlement of a deal under the framework of the Track Second Mediation Rules.

For the purposes of these Rules, the following terms carry the meanings set out below:

The party initiating mediation shall send the other party a written invitation to mediate under these Rules, briefly identifying the subject of the dispute.

• Mediation proceedings commence when the other party accepts the invitation in writing.
• If the other party rejects the invitation, no mediation proceedings shall take place.
• If the initiating party receives no reply within thirty days of sending the invitation — or within any other period specified — it may elect to treat this as a rejection and inform the other party accordingly.

Each party shall inform the other party and the mediator, in writing, of:

• The name and address of any person who will represent or assist them; and
• The capacity in which that person will act. Participants other than the parties are as defined under Rule 2.14.

Track Second will arrange the administrative services specified in Part-B where:

• The parties designate Track Second to arrange such services in the agreement to mediate; or
• The parties — or the mediator, with the consent of the parties — request Track Second to arrange such services.

There shall be one mediator unless the parties agree that there shall be two or three mediators. The parties may enlist the assistance of Track Second in connection with the appointment of a mediator. In particular, a party may request Track Second to recommend suitable individuals, or — where the agreement so provides — to appoint a mediator directly.

A party making such a request shall provide Track Second with: a copy of the invitation to mediate; a copy of any agreement providing for amicable settlement; any qualifications required of the mediator; and any additional information requested.

Track Second shall, within seven days, share a list of mediators as specified in Rule 25. In recommending or appointing a mediator, Track Second shall have regard to:

• Any qualifications required by the agreement of the parties;
• Considerations likely to secure an independent and impartial mediator; and
• Where parties are of different nationalities, the advisability of appointing a mediator of a neutral nationality.

A successor mediator shall be appointed in the same manner as their predecessor.

The mediator and the parties shall keep confidential all matters relating to the mediation proceedings. The mediator may disclose information shared by a party only with that party's prior knowledge and express written consent. Confidentiality extends to the settlement agreement, except where disclosure is necessary for its implementation and enforcement.

The mediator, Track Second, the parties, and participants shall keep confidential:

• Acknowledgements, opinions, suggestions, promises, proposals, apologies, and admissions made during mediation;
• Acceptance of, or willingness to accept, proposals exchanged in mediation;
• Documents prepared solely for the conduct of mediation; and
• Any other mediation communication.

No party shall rely on or introduce such confidential information as evidence in any court or tribunal, including an arbitral tribunal, and no such body shall take cognizance of it. Exceptions: this Rule does not apply to a mediated settlement agreement where disclosure is necessary for registration, enforcement, or challenge; nor to any communication whose objective is to commit or abet an act that is illegal under any law in force.

Prior to conducting the mediation, the appointed mediator shall disclose in writing to the parties any circumstance — personal, professional, financial, or otherwise — that may constitute a conflict of interest or give rise to justifiable doubts as to their independence or impartiality.

During the mediation, the mediator shall, without delay, disclose any conflict of interest that newly arises or comes to their knowledge. Upon such disclosure, the parties may waive any objection if all express this in writing — construed as the consent of the parties. Alternatively, if either party wishes to replace the mediator, they shall apply to Track Second in writing to terminate the mediator's mandate.

Track Second may terminate the mandate of the mediator upon:

• Receipt of a written request from any party under Rule 8;
• Receipt of information regarding the mediator's involvement in a conflict of interest; or
• The mediator's withdrawal from mediation for any reason.

Termination on grounds of conflict shall take effect only after the mediator is given a hearing, and where Track Second, a party, or a participant finds justifiable doubt as to the mediator's independence or impartiality, that the matter has been brought to the parties' notice, and that a party desires replacement.

Upon termination of the mediator's mandate, Track Second shall appoint another mediator from the panel it maintains within seven days of such termination.

Upon appointment, the mediator may request each party to submit — preferably within 7 days but no later than 15 days — a brief written statement describing the general nature of the dispute, the points at issue, and the amount of any claim or counter-claim. Each party shall send a copy to the other. A defence statement to a claim or counter-claim may be filed within the same timeframe.

The mediator may request further written statements of position, supported by documents and evidence, and may request additional information at any stage of the proceedings. Copies of all such submissions shall be shared with the other party.

The mediator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement. Unless the parties agree on a venue, the mediator shall determine the place of meetings, taking into account the circumstances of the proceedings.

The mediator shall expressly inform the parties that they only facilitate resolution — they shall not impose any settlement nor give any assurance that mediation will result in one. The mediator shall be guided by principles of objectivity, fairness, and justice, giving consideration to the rights and obligations of the parties, the usages of the trade concerned, and any prior business practices between them.

The mediator may conduct proceedings as they consider appropriate and may, at any stage, propose terms for settlement. The mediator assists the parties by helping identify and define the issues, developing a quick, fair, and cost-effective procedure, and narrowing the issues in dispute.

These three cycles (90, 45, and 30 days) are designed to promote the speedy resolution of disputes. Under The Mediation Act, 2023 (Act No. 32 of 2023), the stipulated timeline for completion is 120 days, extendable by a further 60 days by mutual agreement, from the date fixed for the first appearance before the mediator.

In compliance with Section 17(a) of The Mediation Act, 2023, the mediator shall not act as an arbitrator, representative, or counsel for any party in any arbitral or judicial proceeding concerning the subject matter of the mediation, nor be presented as a witness in any such subsequent proceeding.

The parties shall, in good faith, cooperate with the mediator and shall in particular endeavour to comply with requests to submit written materials, provide evidence, and attend meetings.

Each party may, on their own initiative or at the invitation of the mediator, submit to the mediator suggestions for the settlement of the dispute.

When it appears to the mediator that elements of a settlement acceptable to the parties exist, they shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving these observations, the mediator may reformulate the terms accordingly.

If the parties reach agreement, they may draw up and sign a written settlement agreement; if requested, the mediator may draw it up or assist in doing so. A settlement agreement may resolve some or all of the disputes, and its terms may extend beyond the disputes referred to mediation.

Where a mediated settlement agreement is reached, it shall be reduced to writing and signed by the parties, and shall be final and binding on the parties and those claiming under them. The mediator shall authenticate the agreement and furnish a copy, with a cover letter, to Track Second and each party.

Mediation proceedings shall be terminated:

• By the signing of the settlement agreement, duly authenticated by the mediator, on the date of agreement;
• By a written declaration of the mediator, after consulting the parties, that further efforts are no longer justified;
• By a written declaration of the parties, addressed to the mediator, that proceedings are terminated;
• By a written declaration of a party to the other party and the mediator;
• If any party fails to deposit costs, fees, and expenses within the specified time; or
• On the expiry of the time limit set out under Rule 12.

Upon termination due to non-settlement, the mediator shall send a non-settlement report to Track Second. This report shall not disclose the cause of non-settlement or any matter related to the conduct of the parties during mediation.

The parties shall not initiate any arbitral or judicial proceedings in respect of a dispute that is the subject matter of the mediation during the mediation proceedings — except where, in a party's opinion, such proceedings are necessary for preserving their rights.

The fee of the mediator and the administrative fee shall be fixed by Track Second in accordance with the Schedule, which may be amended from time to time. In exceptional circumstances, Track Second may — on request from the mediator and with the informed consent of the parties — fix a higher fee.

"Costs" means costs relating to:

• The fees and expenses of the mediator, participants, and witnesses requested with the consent of the parties;
• Any expert advice requested by the mediator with the parties' consent;
• Any assistance provided under Rules 5 and 6; and
• Any other expenses incurred in connection with the proceedings and settlement agreement.

Where more than one mediator is appointed, each is paid separately per the Schedule. Costs shall be borne equally by the parties unless the agreement provides otherwise; individually incurred expenses are borne by the party concerned.

Upon appointment of the mediator, the Registrar of Track Second shall call upon each party to deposit an equal amount as an advance for the mediator's fee, administrative fee, and costs. Subject to the settlement of proceedings, Track Second shall apply the deposits to the costs, render an accounting to the parties, and return any balance.

Unless otherwise agreed by the parties, the mediator shall not act as an arbitrator, representative, or counsel for any party in arbitral or judicial proceedings concerning the subject matter of the mediation, and shall not be presented by the parties as a witness in any such proceedings.

The parties shall not rely on or introduce as evidence in any arbitral or judicial proceedings — whether or not related to the dispute — the following:

• Views expressed or suggestions made by the other party regarding a possible settlement;
• Admissions made by the other party during proceedings;
• Proposals made by the mediator; and
• The fact that a party had indicated willingness to accept a settlement proposal.

If any question arises as to the interpretation or application of these Rules — or any procedural matter thereunder — the decision of the Track Second Mediation Committee shall be final and binding on the parties.