Wednesday, March 9, 2016

Alternative Dispute Resolution in the Arab Gulf Region

Building the ADR Tribe

Seth Godin's book, Tribes: We Need You to Lead Us (2014), has played a big role in my thinking and behavior since I read it shortly after its publication. 

Amazon describes the theme of the book as: 
A tribe is any group of people, large or small, who are connected to one another, a leader, and an idea. For millions of years, humans have joined tribes . . . . It’s our nature. Now the Internet has eliminated the barriers of geography, cost, and time. All those blogs and social networking sites are helping existing tribes get bigger and enabling new tribes to be born―groups of ten or ten million who care about a political campaign, or a new way to fight global warming.

Who is going to lead all these tribes? . . . . Anyone who wants to make a difference now has the tools at their fingertips.

Tribes will make you think (really think) about the opportunities for leading your fellow employees, customers, investors, believers, hobbyists, readers…. It's not easy, but it's easier than you probably imagine.
For more, see his TedTalk here.

My New Tribe

On February 27, 2016, several members of the informal group known as the Arab & International Arbitrators visited from Dubai to meet with their counterparts in Doha.  In November, I had traveled to Dubai to attend one of the groups meetings and to begin building ADR relationships in the Gulf countries.  I met three marvelous people -- Dr. Hussam Al Talhuni, John P. McGowan, Jr., and Diana Bayzakova -- who are leading the Dubai tribe. 

Once I learned they were planning a trip to Doha, I began activating my still modest list of ADR neutrals in Doha.  I reached out to the Clerk of the Qatar International Court & Dispute Resolution Center, Christopher Grout.  I reached out to my Qatar University College of Law colleagues, and I reached at to arbitrators I had met when they began discussing a Doha chapter of the Chartered Institute of Arbitrators

As part of this process, I had several calls with my Dubai counterpart, which eventually led to an invitation to facilitate a conversation about "capacity" in the region.  This invitation fed directly into my own curiosity about the state of ADR in the Arab Gulf.

I fashioned the following questions to prompt the conversation.  I am thankful to my colleagues on the ABA DR Section listserve who suggested some additional angles to my inquiry.

Discussion Questions 
  • Does the region have a sufficient number of neutrals to handle the disputes arising here? Enough arbitrators, early neutral evaluators, mediators, group facilitators, etc.?
  • To enhance this capacity, what kind of training should neutrals in the region have available to them?
    • Substantive.
    • Procedural.
    • Ethical.
    • Cultural.
  • How do we build demand for alternative dispute resolution (ADR) services among businesses, government entities, civil society, and courts? What kinds of trainings and other interactions should we offer these potential users of ADR services?
  • How do we help lawyers understand ADR and its uses in disputes that they handle on behalf of clients? How do we help them advise clients about arbitration, mediation, and other ADR-processes?
For about 30 minutes, we used the questions to prompt a very lively conversation.  
Discussion Take-Away Points

In General:
  • Courts in the Gulf region have no infrastructure for referring cases to ADR, whether statutory or by court rule.
  • Arbitration is the leading form of ADR by virtue of contract clauses typically imposed by expat companies whose expertise is much desired in a country that is scaling up at a very fast pace in anticipation of the World Cup. They have the contractual/bargaining leverage to require the clauses. 
  • Government entities that have had experience with arbitration have not prevailed in most cases (4 out of 5 was the number given) and are now shy of participating in arbitration in the future when they feel the home courts will treat the government better.
  • Government entities wonder if arbitration can provide “justice.” 
  • While many people hold themselves out as arbitrators, good arbitrators are hard to find. “Good” includes substantive competence, especially in construction-related matters. 
  • Parties tend to pick lawyers as arbitrators, because even if they have not had formal arbitration training, they have some respect for legal process and procedural justice. 
  • Virtually no mediation is occurring in the region in litigated disputes.
  • Mediation has taken some root in Dubai in the form of a mandatory pre-trial ADR.
  • If mediation is to take root in Doha at all, it would likely be through a court or government imposed system. (Does such a thing exist already in specialized courts in Doha like the Landlord-Tenant court?)
  • Law firms trying to find competent mediators must go all the way to London. No real capacity exists in the region. Again, they are looking for mediators with substantive expertise, especially in construction-related disputes.
  • By having to go to Europe to find good mediators, the cost of mediation is high. 
  • Very few people, including local lawyers, have training in interest-based negotiation. Accordingly, they have difficulty conceiving of a process, like mediation, that can bridge the hardened positions of parties. 
In short, the region is fertile ground for building capacity to solve problems using tools that are still not widely accepted in the region.  

And, I feel lucky that I can serve this community in ways that will evolve as I learn more.  

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