13/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Referring Court's Management of the Litigated Case
I now want to turn to the court's role throughout the mediation process.
Court's power to refer parties to mediation
The Qatar Mediation Law makes clear that courts may refer cases to mediation if the parties have executed an agreement to mediate. Article 15 states: "In the lawsuit considered before it, the court may ask the parties to settle the dispute through mediation, within a period specified by it." This clause suggest the court will invite the parties to enforce an existing agreement to mediate or to enter a new agreement to mediate. Article 16 states: "The court may, during the consideration of the lawsuit, before setting a date to render a judgement therein, and at any stage of the litigation, decide, based on the agreement of the parties, to stop considering the lawsuit and refer the dispute to be settled through mediation."
As I noted in an earlier post,
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.
Articles 15 and 16 allow the court to refer parties to mediation, if they agree.
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.
Note that the law also says the mediator must complete the mediation within 30 days "from the commencement of procedures" (whatever that means), but he can extend the time for another period (length not specified) with the consent of the parties. See Article 20. I assume the court sets a 30-day period for the mediation under Article 15, thereby avoiding any conflict with Article 20. But, does the clock start ticking when the mediator accepts the appointment? Or, when the mediator takes some action (calling the parties to schedule the session)? Or, from the day of the first mediation session?
What are the responsibilities of the court while the parties attempt to resolve the dispute by mediation?
Provisional and precautionary measures
The court can maintain the status quo during mediation in two ways. First, Article 18 allows the court to "order that provisional or precautionary measures be taken, either before proceeding with the mediation procedures or during such procedures . . . ." A request for provisional or precautionary measures "shall not be considered as an assignment by the applicant of adhering to the mediation agreement" and it incurs no penalty under the same article for an untimely lawsuit, which I discuss more below. The language is not clear, but what I think it says is this. A party can ask for the precautionary or provisional measures without that request being deemed an admission that an enforceable mediation agreement exists. The requesting party could still oppose mediation by alleging that "the [mediation] agreement is null, void, without effect, or not enforceable." See Article 18, discussed below.
Tolling power
The court can also maintain the status quo under Article 22. It provides: "The commencement of mediation procedures shall result in the suspension of the legally determined periods for the forfeiture and prescription of rights, or for the filing a lawsuit within them, until the expiry of the mediation." Again, while the language is confusing, I assume it allows a tolling of any statute of limitations while the parties mediate.
Managing new or pending cases
The court has responsibilities for managing any litigation either pending or filed during the mediation. One set of responsibilities attaches after the referral of the parties to mediation. The second set attaches after the parties enter the settlement agreement. A third set of responsibilities attach if the mediation fails.
Thus, Article 16 allows the court to put the litigation process on hold while the parties mediate. It provides: "The court may. . . stop considering the lawsuit and refer the dispute to . . . mediation."
A party might try to use a new or pending lawsuit to strategically interfere with the referral to mediation. The Qatar Mediation Law addresses this concern. Article 18 provides: "The court before which a dispute is filed, in respect of which there is a mediation agreement, shall rule inadmissibility of the lawsuit, if the defendant has plead[ed] that, and charge the party that filed the lawsuit to pay double the fees of filing the lawsuit, unless the court decides that the [mediation] agreement is null, void, without effect, or not enforceable, or the mediation between the two parties has ended without reaching agreement, within the period specified in the mediation agreement. Filing the lawsuit set out in the paragraph above shall not prevent the commencement or continuation of mediation procedures."
I'm not sure what the phrase "inadmissibility of the lawsuit" means. Again, this could be an intentional word choice or it could be a translation issue. I assume it means that the court deems the lawsuit improperly filed or holds it in abeyance.
Article 25 requires the mediator to file the settlement agreement with the court at the close of the mediation. The parties or the mediator may ask the court to authenticate it. The court may refuse to authenticate it under Article 26, but if it does, Article 27 applies. It provides: "If any of the parties to the settlement agreement which is authenticated by the court filed a lawsuit on the subject of the settlement agreement itself, the court shall rule inadmissibility of the lawsuit because it was adjudicated previously, and charge the party who filed the lawsuit with payment of a penalty equivalent to ten times the fees of filing the lawsuit, provided that such penalty shall not be less than twenty thousand riyals and does not exceed fifty thousand riyals. In the event that there is more than one person who filed the lawsuit, the penalty amount shall be shared equally by them." (Emphasis added.).
In short, a party is not permitted to file a lawsuit related to the mediated dispute or the settlement agreement, after the party has entered an authenticated settlement agreement, without incurring the penalty. The principles of res judicata or estoppel apply. Thus, a party who has any buyer's remorse after mediation should express it in the authentication stage, because this article will prevent the filing of a lawsuit after the court authenticates the settlement agreement.
In addition, the law gives the court power to refund filing fees. Article 17 provides that: "If the dispute is settled through mediation, during the consideration of the lawsuit before the court, the person assigned to pay the judicial fees shall be relieved from payment thereof and the fees will be refunded to him if he had already paid them."
If the parties fail to reach agreement in mediation, then Article 29 applies. It provides: "If it is impossible to settle the dispute amicably through mediation, for any reasons, any of the parties to the dispute may file a lawsuit before the court." Thus, a party can pursue litigation by way of a new lawsuit or, presumably resumption of an existing lawsuit that has been held in abeyance.
Management of mediator
The court also must ensure that the mediation is not causing unreasonable delay in the resolution of the dispute. The court can set a period for the mediation under Article 15. Under Article 13, the court may terminate the appointment of a mediator, at the request of the parties, if he has "failed to perform, or ceased to perform his task, which leads to an unjustified delay in the mediation procedures" where the mediator has otherwise failed to resign.
Article 21 of the Qatar Mediation Law expects that the parties, along with the mediator, will set compensation for the mediator, payable even if the parties fail to reach agreement. But, "[i]n the event of disagreement to determine the fees of the mediator, the court shall estimate them, taking into account the effort made by the mediator, according to a petition submitted by the mediator or either of the parties."
I'll talk more about the settlement agreement and its authentication by the court in my next post.
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