12th Al Jazeera Forum: Session 4 - Changing Alliances in the Region

9/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Party Self-Determination, Part 4: Mediator Influence, Process Design, and Party Control Over the Process

In my last post here, I discussed a framework, developed by Prof. Leonard Riskin, for considering issues of party self-determination and the extent of mediator influence in the process design and process choices.  In two earlier posts here and here, I considered party self-determination over substantive issues arising in the mediation, as well as high-quality decision-making about the outcome.

As I noted in my earlier post, many steps in the mediation process invite input from the parties or their lawyers.  But, the program design or the interventions of a mediator can undermine that procedural self-determination.

The following list provides some of the process decisions in which parties or their lawyers could exercise more decision-making authority and, thus, more control:

• Can the parties choose mediation, and can they opt out of the process if ordered to participate?
• Who may participate in the process, and how many representatives may attend for each party?
• Who will be the mediator or mediators?
• How many mediators will participate?
• What will be the orientation or style of the mediator?
• Who decides whether to file pre-mediation submissions with the mediator? 
• How will the participants handle language differences?
• Should the mediation be in-person or online?
• If in-person, where should the parties hold the mediation? What country, city, or venue? 
• How should the room be arranged?  Consider table selection and orientation, seating arrangements, and amenities available.
• What options for food and beverage should exist?
• How long should each session last?  Will some parties need more frequent breaks? Will the mediation require multiple sessions over several days?
• How will the issues and interests be framed?
• Will the parties have freedom to express emotion, especially anger, anxiety, sadness, or aggression?
• How will the disclosure of information in the process be treated under rules of confidentiality?
• How will the option generation process proceed?  Can the mediator suggest options or make proposals?
• How will offers and counteroffers be conveyed? 
• Who influences the choice of objective criteria?
• Who influences which neutral fact- or neutral legal-experts participate in the process?
• Who decides whether and when to caucus, and which party participates in the caucus first? 
• Who drafts the final settlement agreement?

As a practical matter, a good, well-trained, ethically aware mediator would discuss these issues with the parties either in pre-mediation contacts or during the mediation.  But, as I explained in my last post, some mediators would cede a lot of control to the parties over many of these decisions as a matter of an "elicitive" orientation. On the other extreme, a highly "directive" mediator would make most of these process decisions for the parties.

This post will apply the Riskin analytical framework to the Qatar Mediation Law.

Relevant Articles of the Qatar Mediation Law

The following Articles of the Qatar Mediation Law raise issues of party control over the process choices:

Article 1 definition of a Mediation Agreement

Article 4 governing the number of mediators (an odd number) and the mediators' ability to "determine issues" and propose solutions, but who may not "impose any dispute resolution on any parties."

Article 5 governing the qualifications of the mediator.

Article 6 governing the Mediation Agreement.

Article 7 governing the mediator registration list.

Article 8 governing the choice of mediator or mediators, so long as the number is odd.  Allowing the court to appoint a mediator if the parties fail to do so.

Articles 11 & 12 governing mediator withdrawal, recusal, dismissal, or resignation.

Article 13 governing the mediator's delay in proceeding with the mediation.

Article 14 governing sanctions for a mediator's bad faith, collusion, or gross negligence.

Article 15 governing the parties right to opt out of court ordered mediation.

Article 16 governing the court's power to refer parties to mediation.

Article 20 limiting the mediation to 30 days, plus a possible additional period of time.

Article 23 governing joint sessions, caucus, caucus confidentiality, and the use of experts.

Articles 24 & 25 setting out the drafting, copying, signing, and filing duties of the mediator in connection with the final settlement agreement.

Article 28 governing termination of the mediation.

Article 30 again discussing proposals submitted by the mediator and confidentiality in the process.

Article 31 governing disclosures required for a legal opinion (which I interpret as the use of neutral fact- or neutral legal-experts aka "early neutral evaluation").

Article 33 governing online mediation.

Theory to Practice:  Application of the Riskin Framework to the Qatar Mediation Law

I would call the Qatari Mediation Law "authorizing" legislation.  It allows courts to enforce agreements to mediate, refer parties to mediation, and enforce any settlement agreements arising from mediation.  It generally covers mediator qualifications, selection of a mediator, the mediator's role, the maximum length of sessions to ensure that if the process fails, the litigation can proceed on a timely basis, and confidentiality of mediation communications.

Can the parties choose mediation, and can they opt out of the process if ordered to participate?

Articles 1, 5(7), and 6 gives the parties the power to enter mediation voluntarily by executing a Mediation Agreement either before or after a dispute arises.  The agreement can be a separate contract or a condition included in a contract. The agreement must be in writing, and it survives the death of any party. 

Article 16 allows the court to refer parties to mediation, if they agree.  It allows the court to put the litigation process on hold while the parties mediate.  

Article 15 suggests that the court has unilateral power to refer parties to mediation, but either party may opt out of the process.  The law does not specify how and when parties can opt out.  In the U.S., most courts require parties to attend an orientation session with the mediator before deciding to opt out. 

Taken together, the law ensures that parties have absolute control over whether they will engage in mediation, whether the obligation arises by contract or by court-referral. 

Can the parties choose to hold mediation in-person or online?

In a world where Covid still remains a leading cause of death, illness, and disability, many parties (and mediators) may wish to hold the mediation sessions online.  In the pre-vaccine era, I recall reading about the death of a mediator in southwest Virginia who caught Covid during an in-person mediation.  Arguably, a mediator has an ethical obligation to design a process that protects the health and well-being of the parties. So, online mediation should be a part of a well-designed program.

Most third-party providers contemplate online mediation, and many have offered specific training for mediators to ensure a high-quality, confidential process. 

While some people suggest a loss of the ability to read emotion or body language in online sessions, my experience indicates that those concerns are misplaced.  Even assuming the loss of some of this verbal and non-verbal content, online mediation offers some advantages.  It allows parties who are distant from each other to participate in an affordable process by avoiding travel expenses for the parties, their lawyers, or the mediator.  It allows them to bring in neutral fact- or legal-experts -- like actuaries, accountants, medical experts, lawyers or retired judges, and so on -- much more easily and at a lower cost.  It also allows parties to bring in managers at higher levels of decision-making to provide additional settlement authority in a much more convenient and efficient way.  

My colleague, Doug Knoll, says online mediation has become the preferred format in California.  In this way, the pandemic has had a positive disruptive influence on the field of mediation.

Keeping with this trend, Article 33 of the Qatar Mediation Law allows online mediation.  

Who will be the mediator or mediators? How many mediators will participate?

Articles 1, 4, 5, 7, and 8 gives the parties control over the selection of the mediator.  Article 4 designates that one or more mediators will assist the parties in resolving the dispute.  Article 5 sets out the requirements for mediators who wish to join the approved register of mediators.  They must have full capacity (whatever that means), have a good reputation, good conduct, be honest, impartial, and have experience (in what?).  They must be free of criminal judgements and employment-related disciplinary proceedings. 

Article 7 instructs that the Supreme Judicial Council shall create a register or roster of mediators.  It can set the categories of mediators and the "conditions, controls, and procedures" governing registration.  It is hard to know what the drafters intend by this language, but it seems to leave room for the creation of training requirements, an ethics code, and a grievance system for mediators. It allows for the registration of "[s]elf-employed and specialized professions, arbitrators etc."

Article 8 states that the parties may choose one of more mediators from persons listed on the register "or from others who meet the requirements set out in Article 5." If they parties fail to agree on a mediator, the court may appoint one listed on the register. 

Taken together, the provisions give the parties a lot of control over the selection of a qualified mediator.  

Many mediation programs create rosters of approved mediators to simplify the process of selecting a mediator.  However, some people in the field argue that requiring the selection of a rostered mediator infringes on party control over the process.  Why can't they choose instead a wise elder, an industry expert, or a retired judge who is not on the roster, if they deem him or her competent to serve as the mediator?  

In addition, rosters can end up reflecting cultural biases and discrimination.  Are they populated with people who have diverse religious, cultural, language, gender, and age attributes?  Or, are they dominated by older men, often white Westerners?  Fifty years after the more widespread use of mediation, the U.S. still grapples with the lack of diversity among mediators.  In 2018, the American Bar Association Section on Dispute Resolution finally adopted a resolution supporting diversity in the field.  I sincerely hope Qatar avoids making the same mistake, especially given the diversity of its population and the companies that do business in the country. 

One aspect of the selection process needs revising.  Articles 4 and 8 require that the parties select an odd number of mediators.  This requirement betrays the heavy hand of arbitrators in the drafting process who do not understand that an odd number of neutrals is not required in mediation.  Mediators have no decision-making authority. Thus, no need exists for an odd number of mediators to break a tie vote. Moreover, requiring three mediators will increase the cost of mediation without adding significant value, except perhaps in extremely complex cases.  Thus, eventually, the law should be revised to eliminate this requirement.

Instead, if the parties elect to use more than one mediator, they will typically opt for a co-mediation model involving two mediators. The selected mediators compliment or supplement each others' skills in one way or another.  One co-mediator may bring language, substantive expertise, or cultural competency to the process, while the other co-mediator may bring process expertise and mediation experience, a facility in handling emotions, or some other desirable qualification. 

Articles 11 and 12 contemplate the recusal, dismissal, or resignation of the mediator, thus implying some control by the parties over the continued use of any mediator found unfit to continue as the neutral.  The parties may then appoint an alternative mediator.  

Article 13 allows the court to protect the litigation process by terminating the use of a mediator who has failed to perform the mediation or caused an unjustified delay.  While the language is not clear about the unilateral right of the court to act, it clearly states that the court may act on the request of any party.

Thus, parties not only control the appointment of a registered mediator, but they can also influence his or her dismissal or termination.  The law does not set out grounds for dismissal, but Article 11 does state that a mediator must withdraw if an issue arises affecting his or her impartiality or independence. Article 14 contemplates liability for bad faith, collusion, and gross negligence, so I assume those acts would serve as a basis for dismissal or termination by the parties or court.

How long should each session last?  Will some parties need more frequent breaks? Will the mediation require multiple sessions over several days?

Articles 4, 15, 20 and 28 of the Qatar Mediation Law deal with session length and termination of the process.    Article 4 contemplates "one or more settlement sessions."  Article 15 permits the court to specify the length of the mediation process.  Article 20 requires the mediator to complete the process within 30 working days, but allows the mediator to extend the length of the process for another unspecified period "with the consent of the parties."  This language seems to suggest only one extension would apply.  

Article 28 allows the parties to end the process by signing a settlement agreement; by notifying the mediator that one of the parties does not want to continue in mediation; by expiry of the scheduled session when the parties fail to reach agreement; or, earlier in the process, if the mediator finds that the parties will not benefit from the continuation of the mediation. 

Taken together, the parties share control over the length of the mediation process with the court and the mediator.  The law suggests that multi-session mediations will still require expeditious scheduling.  Parties control extension of the process for an additional time, and they can end the mediation with notice to the mediator. 

How will the issues and interests be framed?

Two of the important skills mediators bring to the process -- that parties tend not to have -- are the ability to identify issues and frame them as interests, rather than as positions.  While a mediator will encourage the parties to dig deeply to identify those interests, ultimately most mediators will assume the responsibility to translate them in a way that will help the parties resolve the dispute.  Zena Zumeta, a well-known U.S. family mediator, has developed an interest framing technique that I have used with great success. 

Parties should be careful that the mediator does not define the issues/interests too narrowly.  Even a business dispute can have elements of personal concern, like the original negotiator's potential loss of face, reputation, or promotional opportunities.  A good mediator will explore those interests in caucus.  A business dispute could also affect community well-being.  Take for example, a contract or performance dispute relating to the construction of a World Cup stadium in Qatar.

Article 4 of the Qatar Mediation Law gives the mediator the authority to determine issues in the dispute. 

As noted, a well-trained mediator can not identify issues/interests without the active participation of the parties. 

Who influences which neutral fact- or neutral legal-experts participate in the process?

Article 23 of the Qatar Mediation Law governs the use of fact or legal neutrals to assist the parties in gathering needed information or doing some reality testing on the legal liability. It provides that the mediator may "ask[] for [the] assistance of an expert in the dispute."  Accordingly, the article suggests only the mediator may ask a neutral fact- or legal-expert to participate in the process.  However, any well-trained mediator will solicit input into whether the parties need an expert, the selection of the expert, compensation for the expert, and how the parties will handle the expert opinion, including its potential inclusion in the settlement agreement under Article 24, which I discuss below.  

How will the disclosure of information in the process be treated under rules of confidentiality?

I plan to discuss in a separate post the articles of the Qatar Mediation Law governing confidentiality in the process here.  This topic has confounded many organizations trying to set guidelines for confidentiality in mediation.  In 2001, the National Conference on Uniform State Laws in the U.S. produced the Uniform Mediation Act after many drafting sessions occurring over several years.  A large part of the draft law applies to confidentiality.   After a lapse of 22 years, only twelve states have adopted it.  Instead, other states rely on their own laws governing mediator confidentiality.

Articles 23, 24, 30, and 31 of the Qatar Mediation Law govern confidentiality in mediation.  This discussion will focus on party control over disclosures of any mediation communications, including documents created during the process itself. 

Article 23 makes caucus communications confidential.  The law indicates that the mediator may disclose these communications to the other party unless "the disclosing party requires the mediator to keep such information confidential."  In contrast, laws in other jurisdictions provide that caucus communications are deemed confidential, unless the party specifically agrees to the disclosure of a particular communication.  Thus, the Qatari approach can be a trap for unsuspecting parties or their lawyers.  

A well-trained mediator -- no matter the nature of the applicable law -- will always check with the disclosing party before releasing any confidential information to the other party.  In some U.S. states, a mediator's mishandling of confidential communications can generate a successful grievance by a party and subject the mediator to discipline. 

Article 30 defines what are confidential communications and expressly states that "the mediator or the party to whom any of the same has been disclosed may not disclose them to the court or a third party, without the approval of the disclosing party . . . ."  It sets up a conflict with Article 24, discussed below, by stating that a confidential document includes " [a]ny document prepared for use during the mediation."  

Article 31 lists the exceptions to confidentiality, but talks in terms of disclosable "issues" rather than "communications."  I am not sure if this word choice is intentional or a product of the unofficial translation.  It should refer to "communications," and so I will use that term here.  

A party or the mediator may disclose:

• Communications made prior to the start of the mediation.  This limitation prevents someone from bringing a pre-existing document into mediation and trying to vest it with confidentiality it did not have previously, like a set of tax documents.
• Communications ordered disclosed by the court for public policy reasons, like "State security, to protect persons or property from imminent danger, to prevent an offense [criminal?], or if it is related to money laundering or terrorism financing."  Many jurisdictions grapple with this sort of potentially broad public policy exception, but most mediators would agree that mediation should not be used to further or plan a crime. 
• Communications to a neutral legal-expert for the purpose of getting a legal opinion. The lawyer, however, must keep those communications confidential, but as noted below, the opinion itself must be included in the settlement agreement.
• Communications about one party's failure to opt in to mediation.

Article 24 governs the final settlement agreement.  It designates what must be included in the agreement.  Quite surprisingly, it requires the inclusion of the "[n]ame of any expert appointed in the dispute and the expert opinion he provided."  In the U.S. any opinion generated by a neutral fact- or legal-expert would be deemed a communication created in the mediation process.  Accordingly, it would be confidential.  Obviously, the parties could waive the confidentiality of the opinion.  But, the Qatari Mediation Law removes party control over this disclosure.  If I were a party mediating under this law, I would not want any expert opinions in writing.  In that way, I might prevent a forced disclosure.  

Taken together, parties have a lot of control over confidentiality in the process, but must be careful to protect caucus communications.  The exceptions to confidentiality reflect generally accepted parameters.  I suspect that as Qatar has more experience with mediation, these sections of the law will undergo further revision to improve clarity and resolve some of the internal contradictions.

How will the option generation process proceed?  Can the mediator suggest options or make proposals?

In terms of generating options, Article 4 provides that the mediator will "search[] for solutions to the dispute."  This terminology suggests party control over the options created.  The last sentence of this article reinforces that interpretation when it says: "The mediator shall not impose any dispute resolution [option] on any of the parties." 

In an earlier post, I wrote about my concern in connection with Articles 4 and 30 of the Qatar Mediation Law, which contemplate mediator proposals to resolve the dispute.  While a well-trained mediator will develop a long list of options for settlement based on the active participation of the parties, the use of a mediator proposal can undermine party self-determination over the process and the substance of the dispute. 

In that post, I said:

At first, I was very concerned that the law gave mediators the opportunity to propose solutions to resolving the dispute. As I'll explain more when I analyze the provisions governing mediator neutrality in later posts, this opportunity can be abused, especially by unskillful mediators.

In the U.S., many mediation statutes or ethics codes preclude mediator interventions involving option proposals. The concern is that the mediator proposal can have too much "gravitation weight" pulling parties in a direction they might not otherwise want to take. My concern is that it substitutes the judgement and life experience of the mediator for the unique experiences of the parties. I have been in too many mediations where the parties propose options I would never in my life have conceived. But, they worked for them. I have come to trust the "wisdom of the parties."

The U.S. statutes and ethics rules that permit mediator proposals typically encourage or require that the mediator get explicit party consent before making any proposals.

Lawyers representing parties in mediation in Qatar will need to develop strategies for handling mediator proposals.  They will need to consider the timing.  Are they a last ditch effort to resolve the dispute after all other efforts have clearly failed?  Or, are they proposed too early in the process by an unskillful, arrogant, or impatient mediator?  Lawyers should consider delivery?  I would never want a mediator proposal delivered outside of a caucus.  What type of proposal is planned?  What technique will the mediator use to create the proposal?   These are all process choices.

Who decides whether and when to caucus and which party participates in the caucus first?

Article 23 of the Qatar Mediation Law governs caucus.  It provides that the mediator "may negotiate with the parties individually or convene joint meetings between them . . . ."  In doing so, the mediator is instructed to "tak[e] into account the interests of the parties and the need to reach a solution to the dispute in the shortest possible period . . . ."  No further guidance exists on the caucus process.  

A well-trained mediator will develop an approach to caucus and will likely make decisions about whether and when to hold a caucus and with whom to caucus first.  Lawyers representing parties in mediation should be familiar with the different options involving caucus. 

Who drafts the final settlement agreement?

In the U.S., you will see a number of approaches to drafting the final settlement agreement.  Before the parties terminate the session, the mediator will help draft a list of agreed terms.  Based on that list, either the mediator or the lawyer for one of the parties will create the first draft of the agreement.  Like any contract drafting process, the drafts will go back and forth between the parties until the language satisfies both lawyers.  In some states, if the mediator is not licensed to practice law in that state, he or she cannot draft the settlement agreement.  That act could be punished under laws governing the unauthorized practice of law. 

In less complicated matters, where the parties appear pro se, the mediator will draft the settlement agreement, but he or she will advise the parties to have a lawyer look over it before they sign it.  Parties can ignore that advice and sign it without a lawyer's input. 

Articles 24 and 25 of the Qatar Mediation Law govern the drafting and filing with the court of the final settlement agreement.  Article 24 states: "The mediator shall . . . execute the settlement agreement in writing . . . ."  The agreement must include a "[d]etailed statement of what has been agreed between the parties to the dispute."  The word "execute" has several definitions, one of which is to "make or produce," while another is to "do what is provided or required by."  One definition suggests the mediator is the drafter, with little participation by the parties.  The second definition leaves room for party participation in the drafting, and the mediator plays the role of ensuring it is in writing, signed, copied, and filed with the Clerk Office of the court under Article 24.  

In any event, a well-trained mediator will handle the drafting process in a way consistent with the nature of the dispute and the needs of the parties.

Provisional or precautionary measures.

A number of articles seem to address what the court may do while the parties pursue mediation to prevent any prejudice to the litigated case.  Article 18 of the Qatar Mediation Law, in very confusing language, allows the court to take provisional or precautionary measures before or during the mediation process "upon the request of either of the parties."  I have served as a lawyer in a complex reinsurance dispute in which we ask the court to toll the statute of limitations during the mediation process.  That may be the type of measure contemplated in the article.  But, the parties must initiate the action. 

Other procedural choices

The Qatar Mediation Law does not mention a number of the process choices I listed in the first part of this post, including pre-mediation submissions, handling language differences, the venue for in-person mediations, the room arrangement, the amenities available, the food and beverages offered, the need for frequent breaks, the emotional expression allowed, the conveyance of offers and counter-offers, and the choice of objective criteria. In practicality, in more complex cases, a well-trained mediator will resolve these issues in pre-mediation contacts with the parties.  Parties should have a lot of input.  In less complicated cases, the mediator may end up making more process choices for the parties given the nature of the dispute and the resources of the parties. 

Interestingly, Article 12 provides: "The parties, after appointing the alternate mediator, shall agree to the validity of the mediation procedures that were taken before appointing the alternate mediator.  In the event of a failure to agree as such, the alternate mediator shall take the action he deems fit in this regard."  This language suggests that the parties have played a significant role in designing the mediation procedures and have the power to ratify them if they end up with a new mediator.

Conclusion

While the Qatar Mediation Law gives the parties control over the process in many ways, the extent of that control will begin and end with the choice of mediator.  If parties want more process control, they should pick a mediator with a more "elective" orientation who does not define the issues and interests narrowly.  They will lose a lot of process control if the mediator has a more "directive" orientation and tends to define the issues very narrowly. 

 

My next post will start the discussion of mediator neutrality under the Qatar Mediation Law.