1/n An Analysis of UAE’s Fed Law No. 6 of 2021, Mediation of Civil and Commercial Disputes: The Role of New Laws
I've been reading a law review article that updates and expands on the "vanishing trial" in courts of the United States. In the U.S., the number of civil trials has dropped precipitously. From 1947 to 1985, the typical federal judge tried 1.7 civil cases per month. In 2015, that number had dropped to about 0.4 civil trials a month.
The author asserts that U.S. courts are in the fourth era of civil procedure, with the last era beginning in 1976 with the Pound Conference. That conference ushered in the modern alternative dispute resolution (ADR) movement. He explains:
It makes sense that a broad-based ADR movement found traction only after [the chief judge of the United States Supreme Court] and the courts generally offered their imprimatur. States have a monopoly on the legitimate use of coercive force. In the context of dispute resolution, governments alone have authority to vindicate rights and to assign responsibilities. Without the infrastructure provided by courts, participation in ADR would be optional, ADR neutrals would have no meaningful authority, and the outcomes of many ADR proceedings would be non-binding and unenforceable.
Thomas O. Mann, Mediation: An Unlikely Villain, 34 Ohio St. J. on Disp. Resol. 537 (2019).
This quote especially resonated with me because of a comment made by a participant at a mediation conference held in Abu Dhabi on May 31, 2023, sponsored by ICC/CEDR/WIPO. The participant, a lawyer in the local office of a large international law firm, complained that any new legislation involving mediation was not at all needed and created too much regulatory formality. He and his sophisticated clients were quite capable of selecting a qualified mediator, designing the mediation process, executing the agreement to mediate, and writing and signing any final settlement agreement. He apparently assumed that both parties would perform the settlement agreement problem-free.
I pushed back. Not all mediations involve sophisticated parties or competent lawyers. Some 20 years after entering the field, I still explain what mediation is to people who hear me use the term. Not all parties know how to pick a qualified mediator with the needed experience to handle their particular dispute. They may not know much about the mediation agreement. They may struggle with writing the settlement agreement. They may not know how to enforce it if one of the parties does not live up to his or her obligations under it.
As I said this to the audience, I was thinking of the 30,000 cases Wolf von Kumberg had just said were now being handled annually in the UK by CEDR through mediation. Without an appropriate "infrastructure" for mediation by this third-party provider, many parties would not experience a high-quality resolution of their dispute. Their access to justice could be a failed promise.
More importantly, perhaps, new laws give the courts instructions and powers they may not otherwise feel confident to exercise. New laws give them explicit powers to refer parties to mediation. New laws give courts guidelines for handling the case while it moves into, through, and out of the mediation process. It also gives them power to enforce a final mediated settlement agreement or void it for well-known reasons of capacity or fraud. The new laws provide a case management tool many courts will welcome.
So, as I look at the recent activity to approve laws governing mediation in the Arab Gulf region, including the UAE, I greatly appreciate the role these new laws play in the justice system. I also wonder if these new laws signal a new era of civil procedure. Will a modern mediation movement significantly change the role of courts in the region? What will the legal landscape look like in another 20 years?
Also, this reminder: The 2021 law has now been replaced by Federal Decree-Law No. 40/2023 On Mediation and Conciliation in Civil and Commercial Disputes, issued on September 28, 2023, and effective 90 days after its publication, which is some time in December 2023. A copy of the English-language version is available here.
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