12/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Confidentiality in Mediation, Part 2: Many Unanswered Questions
In my last post, I set out a framework for analyzing statutes or rules governing confidentiality in mediation. I will use it to analyze the Qatar Mediation Law.
Articles 23, 24, 30, 31, and 32 of the Qatar Mediation Law govern confidentiality in mediation. I will consider:
- Who is the holder of the privilege who may prevent the disclosure of confidential information?
- In what subsequent proceedings will confidentiality prevail?
- What is confidential? What is exempted from confidentiality?
- Who can enforce confidentiality?
- Against whom can confidentiality be enforced?
- How absolute should the grant of confidentiality be?
- What is the penalty for wrongful disclosure?
Who holds the privilege?
Article 1 defines "Parties" as: "The parties to the dispute who have agreed to settle it by mediation, whether natural or legal persons with legal capacity to contract."
Article 23 makes caucus communications confidential. It provides: "[T]he mediator may negotiate with the parties individually or convene joint meetings between them . . . . A mediator to whom certain information has been disclosed by any of the parties may disclose it to the other party, unless the disclosing party requires the mediator to keep such information confidential." (Emphasis added.) The law thus places on the disclosing party the burden of asserting the confidentiality privilege, even as to caucus communications. As I noted in my earlier post, laws in other jurisdictions provide that caucus communications are deemed confidential, unless the disclosing party specifically agrees to the disclosure of a particular communication. Thus, the Qatari approach can be a trap for unsuspecting parties or their lawyers.
Article 30 defines what communications are deemed confidential 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 . . . ." So again, the disclosing party holds the privilege to keep information confidential.
Analysis
- Mediator only?
- Parties only?
- All participants?
- Jointly between mediator and parties?
- Parties control disclosures as between themselves.
- Mediator is given means to avoid being compelled to give testimony about the mediation.
The Qatar Mediation Law only mention the parties as the holder of the privilege.
In what subsequent proceedings will confidentiality prevail? Who can enforce confidentiality?
Article 30 indicates that the mediator or any party to the mediation may not disclose any confidential communications, without permission, "to the court or to a third party."
Analysis
Recall the list in my Part 1 post of proceedings in which a party might assert the privilege:
- Any subsequent legal or administrative proceeding between the parties?
- Any other context involving the parties?
- In legal or administrative proceedings involving third-parties to the mediation?
- In formal discovery process by the parties to mediation or by third parties?
Article 30 of the Qatar Mediation Law prohibits disclosures to "the court." Is this language limited to the court referring the parties to mediation, or does it include any court, whether civil, or criminal? Article 1 defines "Court" as: "The court originally competent to consider the dispute, [sic] subject of the mediation." Thus, the language suggests a narrow interpretation.
On the other hand, the penalty clause of Article 30 suggests that the privilege against disclosure applies more broadly. It states: "In all cases, no court shall consider what was disclosed in violation of this Article, during its consideration of the lawsuit." (Emphasis added.) This language may be limited to proceedings designed to determine the penalty for wrongful disclosure. Or, only to the court hearing the original lawsuit that led to mediation. In any event, even this added language seems to exempt criminal proceedings before a court, because they do not involve a "lawsuit." If the drafters intended more comprehensive confidentiality for mediation communications, they could resolve the ambiguity by revising the definition of "Court" in Article 1.
The law does not expressly confer confidentiality of mediation communications in administrative or ministerial proceedings or any discovery process. It does say that disclosures may not be made to third-parties, which might include other courts, administrative agencies, or even third-parties in discovery.
Given the ambiguity in the language, I suspect this clause will generate litigation involving the scope of confidentiality.
What is confidential? What is exempted from confidentiality?
Article 30 states that:
All deliberations, discussions, offers, negotiations and documents related to the mediation shall be confidential . . . and this particularly includes:
1- The request of mediation, the party that requested it, and the documents, letters or correspondence related thereto.2- Accepting the mediation request and the documents, letters or correspondences related thereto.3- Opinions and suggestions submitted by any party in relation to the dispute.4- Declarations and acknowledgments made by any of the parties to the dispute, in the context of the mediation procedures.5- Deliberations and discussions between the mediator and any of the parties or between the parties themselves.6- Proposals submitted by the mediator.7- Willingness of any party to accept a settlement proposal.8- Any document prepared for use during the mediation procedures.
Article 31 sets out the exceptions to confidentiality: It provides:
The party to whom the disclosure was made or the mediator may disclose to the court any of the issues set out in the Article above, in the following cases:
1- If it is proven that the disclosed issue was know before the mediation before the mediation commencement, without prejudice to any confidentiality clause imposed on the party to whom the disclosure was made, in accordance with a law or any other agreement.2- Issuance of a court judgment, obliging the parties to disclose such issue, for reasons related to State security, to protect persons or property from imminent danger, to prevent an offense, or if it is related to money laundering or terrorism financing.3- Disclosure is made to a lawyer for the purpose of obtaining a legal opinion. In this instance, it is not permissible that the lawyer uses what was disclosed to him, except to express his legal opinion.4- In the event that one of the parties to the dispute requests the other to resolve the dispute by mediation and the other party failed to respond to this request, the applicant may disclose to the court his request and the other party's failure to respond, all of which [were] before the mediation. (Emphasis added.)
Any of the parties to the dispute may disclose the issues set out in the previous Article [30], to prove or deny any allegation about impartiality or independence of the mediator or that he committed a fatal or willful mistake. In this case, the court shall consider such allegation and issue a decision regarding it and refer the dispute between the parties to another circuit to consider it, without any issues that were disclosed in violation of the provisions of this Article. In all cases, no court shall consider the disclosed issues, to prove or deny any order in the lawsuit. Without prejudice to the first paragraph of Article 30 of this law, the court may take any evidence used during the mediation. (Emphasis added.)
Analysis
I have a problem with the use of the words "issues" and "issue" in Article 31. I am not sure if this word choice is intentional or a product of the unofficial translation. In any event, I suggest that drafters revise it to talk in terms of mediation communications. Or, it could repeat the language used in Article 30 that references "[a]ll deliberations, discussions, offers, negotiations and documents related to the mediation." The term "issue" strikes me as too broad. An issue can pre-date the mediation, but a communication or document related to that issue might not. I will use use the term "communications" in this analysis to avoid confusion.
Article 30 sets out a scope of confidentiality that would look familiar to many mediators from around the world. Recall the list in my Part 1 post of communications that could be designated as confidential mediation communications. Based on that list, the following communications seem to be protected by the Qatar Mediation Law:
- Communications in setting up the mediation. Even “ex parte” communications with mediator. And, intake information.
- Appraisals, fact- or legal-expert opinions, etc. obtained to prepare for settlement negotiations, if a "document prepared for use during the mediation procedures." The caveat is important.
- Communications made by the parties in the course of settlement discussions – oral and written.
- Documents or other evidence created in the mediation process.
- Statements made by or notes of the mediator.
Articles 10 and 28 define the length of "mediation procedures." They "start from the date when the mediator accepts his duties" and end with the "[s]igning of the settlement agreement by the parties to the dispute." Accordingly, communications made between multiple sessions of mediation and communications made at the time between reaching agreement in mediation and the final execution of the settlement agreement should be confidential.
Article 31 exempts:
- 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. Interestingly, this clause indicates that the disclosure is exempted even if the receiving party is bound by a confidentiality agreement. I'd love to know why the drafters thought it necessary to sidestep contractual confidentiality in this context.
- 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 nearly all mediators would agree that mediation should not be used to further or plan a crime.
- Communications to a neutral legal-expert, it seems, 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 filed with the court. Thus, this clause reinforces that those expert opinions are not confidential. Again, these are documents created in mediation and should be confidential, as discussed below. Why does a court approving a settlement agreement need to see a neutral's opinion?
- Pre-mediation communications about one party's failure to opt in to mediation. This clause permits a party to enforce the agreement to mediate.
- Communications needed to prove mediator misconduct, but this exception is poorly drafted and very difficult to interpret.
Article 30 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 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." Article 25 requires the mediator to file the settlement agreement with the Clerk Office of the court, thus making its contents available to the court and its staff, and perhaps the public.
In the U.S. any opinion generated by a neutral fact- or legal-expert would be deemed a communication "prepared for use during the mediation." 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.
Article 32 allows the court to restrict any disclosures under Article 31 "to the extent required to prove its [sic] cause . . . ." This clause will need further explanation.
But, certain communications are not clearly covered, or clearly exempted, from confidentiality:
- Acts or conduct of the parties.
- Appraisals, fact- or legal-expert opinions, etc. that were obtained to prepare for settlement negotiations, (and apparently not confidential if prepared during the mediation.)
- Information assembled for research or program accountability or assessment.
Courts may end up interpreting the laws language broadly to protect all or most of the listed communications. But, they could just as easily interpret it more narrowly when confronted with the need for evidence in another administrative, civil, or criminal case. Moreover, the clause making confidential "[a]ny document prepared for use during the mediation procedures" conflicts with the exemption for neutral fact- or legal-expert opinions.
Who can enforce confidentiality? Against whom can confidentiality be enforced?
Recall the list in my Part 1 post of potential persons who might have an interest in enforcing the confidentiality of mediation communications:
- Parties to the mediation?
- Witnesses or other participants?
- The mediator?
- Interested non-parties?
- Courts and other public agencies?
Analysis
The Qatar Mediation Law does not state who can enforce confidentiality other than the parties and the mediator. See Article 30.
The law is also not specific about against whom it can be enforced other than "the court" or a third-party. See Article 30. The penalty clause in Article 30, discussed below, states that confidential communications cannot be used by any court. It provides: "In all cases, no court shall consider what was disclosed in violation of this Article, during its consideration of the lawsuit." (Emphasis added.) However, as noted above, this limitation may only apply in the penalty context. The penalty clause also states that the penalty will result in the event of a disclosure "by the mediator or any of the parties to whom the disclosure was made."
The exception in Article 31 for communications that prove mediator misconduct contains similar language and, by doing so, creates confusion about what communications can be used in proving misconduct and which courts are precluded from hearing evidence consisting of confidential communications. Again, the drafters need to revisit these aspects of confidentiality to clear up any ambiguities and to provide more clarity and guidance to mediating parties, the mediator, third-parties, and courts.
How absolute should the grant of confidentiality be?
In my Part 1 post, I set out a number of options for the scope of the privilege:
- Absolute with no exceptions?
- One broad exception: when interests of justice or public policy requires disclosure?
- A list of specific exceptions, like:
- Bad faith
- Past illegal conduct or crime
- Fraud
- Abuse of process
- Threats to commit crime or disclosure of ongoing crime
- Threats to commit child abuse or adult abuse or other bodily harm
- Only when such disclosure is mandated by local law?
- Threats to commit child abuse or adult abuse or neglect by a governmental agency in charge of persons in its care
- Only when such disclosure is mandated by local law?
- Threat of harm to property
- Commission of crime in mediation
- When disclosure is mandated by another state law
- When disclosure is mandated by court or administrative agency
The Qatar Mediation Law adopts the third option, by creating confidentiality subject to a short list of enumerated exceptions, including a public policy exception covering "[s]tate security, to protect persons or property from imminent danger, to prevent an offense, or if it is related to money laundering or terrorism financing." I expect that over time, courts will better define the list of exceptions. Drafters may find they need to add additional exceptions.
What is the penalty for wrongful disclosure?
Problems arise when someone breaches the confidentiality of mediation. A party can find that enforcing confidentiality is difficult. A party can also have difficulty calculating damages arising from a breach. In my Part 1 post, I suggested several reasons for why parties seek to breach mediation confidentiality.
Article 30 of the Qatar Mediation Law has provided a penalty for violating confidentiality. It states:
In the event of violating any of the provisions of the paragraph above by the mediator or any of the parties to whom the disclosure was made, the court shall automatically charge the violating party with a penalty of twenty thousand riyals [about $5,500] or five percent of the dispute value, whichever is greater, provided the the adjudged amount shall not exceed one hundred thousand riyals [about $27, 400]. The court shall refer the dispute to another circuit to adjudicate it, without any matters disclosed in violation of the provisions of this Article. In all cases, no court shall consider what was disclosed in violation of this Article, during its consideration of the lawsuit.
I am not sure how a party will have a court consider a breach of confidentiality if that court must adjudicate the matter "without any matters disclosed in violation of this Article." This phrase is confusing. I suppose the party could subpoena the mediator to testify whether the disclosed communication was a confidential mediation communication. The mediator could simply answer "yes" or "no." But, the cross-examination could quickly go beyond that simple probe into matters deemed confidential. Parties can only hope that these stiff penalties will prevent unlawful disclosures.
Conclusion
The Qatar Mediation Law provides meaningful protection for mediation communications. Parties hold the privilege to prevent disclosures to "the court" or third-parties, but must specifically assert it to cover caucus communications. Only the parties can enforce the privilege. A court can sanction the mediator and a party for wrongful disclosures, but apparently not third-parties.
The scope of the privilege is fairly broad, but does not seem to cover any neutral fact- or legal-expert opinions. The law also contains a broad public policy exemption.
Drafters need to clarify whether a disclosure can be made to administrative agencies and other civil and criminal courts (other than the referring court). Are confidential communications subject to discovery in other litigation?
Next up? I'll discuss the court's management of the case pending mediation and precautionary measures available to parties while they mediate.
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