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

16/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Mediator Misconduct

Background

In 2006, I published a book-length article analyzing grievances filed against mediators in five U.S. states with robust complaint systems.  See Paula M. Young, Take it or Leave it. Lump it or Grieve it: Designing Mediator Complaint Systems that Protect Mediators, Unhappy Parties, Attorneys, Courts, the Process, and the Field, 21 Ohio St. J. Disp. Resol. 721 (2006), available here.  The following background discussion is taken from that article.  I have not included the numerous citations.

In the article, I noted that studies show that sixty-five to eighty-two percent of parties to family mediation viewed their mediators as “warm, sympathetic, and sensitive to feelings.” They found them “helpful in standing up for their rights in disagreements with spouses; staying focused on the important issues; and having clear and sufficient information for decisionmaking.” But, eighteen to thirty-five percent of parties did not feel this way after the mediation.

A majority of parties participating in court-connected civil mediations felt that the mediation process was fair and gave them sufficient opportunity to present their cases. A majority of parties felt they had control over the process or had input in determining the outcome. Most parties thought the mediator was neutral, did not pressure them to settle, understood their views and issues, and treated them with respect. A majority of parties felt the mediation resulted in a fair agreement. Most attorney-advocates shared the same feelings. But some minority of parties and attorneys did not have these feelings about the experience.

Sixty-one percent of disputants in fifty-four waste management mediations were satisfied with the mediation process and the outcome. But thirty-nine percent of mediation-disputants were not.  Another survey found higher levels of satisfaction in a Pennsylvania special education mediation program. There, eighty-two percent of clients were “very satisfied” or “satisfied” with the actions of the mediator and the process. Yet, eighteen percent of participants were neutral or dissatisfied with the mediator or the process.

In short, studies suggest that perhaps a third of mediating parties are unhappy with the process or the mediator. However, the statistics on grievances and malpractice claims filed against mediators indicate that dissatisfied parties simply “lump it” and never file a complaint against the mediator. We know that mediators commit malpractice, engage in conduct inconsistent with standards of practice, or violate core values of mediation. Yet, the majority of U.S. states do not help mediators to “name” the misconduct or aggrieved parties to claim it.

Mediators increasingly feel the risk of malpractice suits or of grievances filed with mediation program administrators, state bar associations, or the entities regulating a mediator’s profession of origin. Effective and well-designed grievance systems can divert some potential mediator malpractice suits into grievance processes that may satisfy both the unhappy party and the mediator, will enhance mediator skill, will allow for de-rostering of incompetent mediators, will protect the mediation process, and will protect the reputation of the field and of referring courts. As Sharon Press, [former] Director of the Florida Dispute Resolution Center (DRC), recently said: “It is irresponsible to divert parties into court-connected mediation programs without providing a process by which they can get help if the process is handled improperly.”

What types of grievances do parties file against mediators?

One state, Florida, can serve as an example of the types of grievances filed against mediators and the type of sanction a regulatory body is likely to impose.  Florida has an ethics code for mediators, which serves as the framework for determining mediator misconduct.  

Florida’s 2000 census data show a population of nearly sixteen million people, making it the most populous state analyzed in my article.  As of December 2005, over 18,000 people had completed certified mediation training programs. In August 2005, 1391 county mediators, 1682 family mediators, 2166 circuit mediators, and 138 dependency mediators operated as certified mediators in the state. Sharon Press estimates that courts refer over 100,000 cases a year to mediation. From May 1992 to April 2005, the DRC processed seventy-four grievances filed against certified mediators.  Accordingly, an individual mediator’s risk that he or she will have to defend a grievance complaint in Florida remains extremely low.

Florida parties most often alleged that a mediator interfered in some way with the party’s self-determination. Twenty-four of the complaints claimed that a mediator interfered with the parties’ self-determination and another twenty-five complaints alleged that mediators gave improper professional advice or opinions. The second most common allegation asserted that a mediator was not impartial. Thirty of the grievances specified this violation. Parties alleged improper continuation, adjournment, or termination of the mediation in fourteen complaints. Complainants alleged lack of mediator integrity in eleven complaints. In eight grievances, complainants stated that the mediator failed to conduct an appropriate orientation session before beginning the main sessions. Other alleged violations included: conflicts of interest (five complaints), excessive fees and expenses (four complaints), failure to maintain confidentiality (four complaints), demeanor not befitting a mediator (three complaints), improper advertising practices (two complaints), lack of professional competence (two complaints), and unfair scheduling practices (two complaints).

The complaint committees reviewing the grievances most frequently imposed, in eleven of seventeen cases, a sanction requiring the mediator to get further training. The sanction included requirements for advanced mediation training, attendance at a dispute resolution conference, communications sensitivity training, communication and listening training, family mediation training, domestic violence training, and ethics training. Three mediators also accepted sanctions requiring them to observe mediations conducted by certified mediators. Three mediators agreed to mediate or co-mediate under the observation and supervision of a certified mediator. In eight cases, the complaint committees suspended the mediators from conducting mediations or certain types of mediations until they had completed the imposed sanction. When one mediator failed to satisfy the agreed sanction, the mediator was de-certified subject to reinstatement by petition no earler than two years after the date of the imposed sanction. In five cases, the complaint committees required mediators to adjust their fees by waiving them or forgiving unpaid fees or refunding fees charged in the mediation in which the violation occurred. They gave oral reprimands or admonishments to three mediators and a written reprimand to one mediator. Mediators also provided apologies in three cases. One sanction imposed by a complaint committee required the mediator to pay the cost of the complaint committee’s investigation. Another sanction required the mediator to write an article on confidentiality and good faith in mediation and on the limitations the ethics rules imposed on reports to judges about the mediation. In one case, as follow-up to the imposed sanction, the DRC required the mediator, before mediating again, to submit a copy of the mediator’s engagement letter along with its explanation of the fees charged.

Other than fee or investigative cost reimbursement, complaint committees do not impose monetary sanctions or penalties in the U.S.  Instead, they focus on restorative practices designed to help the mediator gain more knowledge of applicable ethical requirements or to learn the skills needed to provide high-quality mediation. 

Mediator misconduct under the Qatar Mediation Law

The Qatar Mediation Law takes a penalty approach to mediator misconduct.  As far as I know, the country has not yet built the "mediation infrastructure" that I describe in my article.  Thus, no ethics code exists in the court-connected program for mediation of commercial cases.  

Instead, Article 14 lists three types of misconduct that can lead to "accountability."  It provides:

The mediator may not be held accountable for his exercise of mediation tasks unless his exercise thereof was with bad faith, collusion, or gross negligence.

A decision shall be issued by the Council, regulating the procedures and controls of accountability and penalties.

This article contemplates that the Supreme Judicial Council will create a system allowing parties to file complaints and for the Council to hear those complaints and issue a sanction.  Its jurisdiction, however, seems quite narrow (bad faith, collusion, or gross negligence), and the designated misconduct only tangentially relates to the common ethical duties of a mediator or to the core values of mediation.   I wonder again if we are seeing the input of arbitrators in the drafting process rather than the input of well-trained mediators.

Moreover, what penalties does the law contemplate?  

Article 30, governing confidentiality in mediation, also sets out a penalty for the wrongful disclosure of confidential communications.  It provides:

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.

Thus, the drafters have used financial penalties to deter disclosures, but have not considered restorative practices to help the mediator fill a gap in his or her ethical knowledge or skills.

In an earlier post, I also worried about how a party would prove a violation of this article.  I said: 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

Over time, I expect to see the entities offering mediation services in Qatar, whether court-connected or private third-parties, grapple with the issue of mediator misconduct and the sanction system appropriate to sustaining high-quality mediation in the region.  However, the approach set out in the Qatar Mediation Law does not itself provide a workable scheme. 

So, folks.  That is the last post in my series on the Qatar Mediation Law.  Next up? I'll do a similar analysis of the new mediation law in the United Arab Emirates.