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

 

8/n An Analysis of UAE’s Commercial Mediation Law, Federal Law  No. 6 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 in the context of the UAE Commercial Mediation Law, a copy of which is available here.

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 over the process:

• 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, described in my last post, to the UAE Commercial Mediation Law.

Relevant Articles of the UAE Commercial Mediation Law

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

Article 1 definition of the terms Mediation, Judicial Mediation, Extrajudicial Mediation, Mediation Agreement, Private Mediator, Settlement Agreement, and Mediator's Fees.

Article 3 governing the Mediation Agreement

Article 4 governing the qualified mediator list

Article 5 governing the court's power to refer parties to judicial mediation

Article 6 governing appointment of a private mediator

Article 7 governing appointment of a mediator through the mediator list

Article 8 governing mediator recusal, removal, disqualification and unfitness

Article 9 governing the mediation procedures

Article 10 governing the mediation sessions

Article 11 governing the powers of the mediator

Article 12 governing remote mediation

Article 14 governing confidentiality of information

Article 15 setting out mediator prohibitions

Article 16 governing termination of judicial mediation

Article 17 governing the failure to reach settlement

Article 18 governing the court's affirmation of the settlement agreement

Article 22 governing recourse to extrajudicial mediation, and

Article 23 governing extrajudicial mediation procedures.

Theory to Practice:  Application of the Riskin Framework to the UAE Commercial Mediation Law

As I noted earlier, the UAE Commercial Mediation Law is "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.

Two Tracks for Mediation

The UAE Commercial Mediation Law contemplates two tracks for mediation.  The law defines the first track, "judicial mediation" as "[a] form of mediation sought by the parties to have their dispute resolved after having first resorted to litigation, and at any stage of the case," The law defines the second track, "extrajudicial mediation," as "[a] form of mediation directly sought by the parties to have their dispute resolved before they resort to litigation, in enforcement of the Mediation Agreement."  

Extrajudicial mediation is tied to "Centers."  The law defines a "Center" as: "The Mediation and Conciliation Center described in the above-referenced Federal Law No. [17] of 2016 as amended or in any other local law."

Can the Parties Choose Mediation, and Can they Opt Out of the Process if Ordered to Participate?

- Getting into Mediation

Articles 1, 3, 5, 22, and 23 give 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. Under Article 5, the agreement must be in writing, and it survives the death of any party. 

Articles 5 and 23 allow 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.  

-  Getting Out of Mediation

Unlike the Qatari Mediation Law -- which suggests that the court has unilateral power under Article 15 to refer parties to mediation while giving the parties the ability to opt out of the process -- courts in the UAE must have explicit party consent before referring parties to mediation.  See Articles 5 and 23.  At the same time, Article 16 of the UAE Commercial Mediation Law gives parties an opt-out provision by stating: 

• Judicial mediation shall be terminated in any of the following cases . . . When the parties and the mediator agree that the judicial mediation should be terminated prior to reaching a settlement agreement for whatever reason; Where either party to the dispute notified the mediator or the Center of its desire to cease to get involved in the mediation process . . . .

The provisions governing extrajudicial mediation do not expressly create an opt-out option.  I assume the rules governing mediation at each Center would control that option.

Taken together, the law ensures that parties have absolute control over whether they will engage in mediation. 

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 12 of the UAE Commercial Mediation Law allows online mediation.  It provides: "The mediator may hold mediation sessions depending on electronic means and remote communication technologies, according to the controls and procedures to be issued under a resolution of the minister or the head of the local judicial authority, as the case may be."  

Who will be the Mediator or Mediators? 

Articles 1, 4, 6, 7, and 8 give the parties control over the selection of the mediator, either listed or private.  Article 1 defines "Mediator" as "[e]ach natural or legal person engaged by the Parties to perform a mediation missions for amicable resolution of their dispute, whether such mediator is a private mediator or is included in the Center's mediator lists." 

Article 4 requires the Center to create a list of mediators who are experienced, and "nominated based on a resolution of the Minister or the head of the local judiciary."  The list can include: "retired members of the judiciary, lawyers listed in the rosters of practicing and non-practicing lawyers kept by the Ministry, others of high credentials[,] and global experts in the legal field and business field who are known for their expertise, integrity and neutrality."  

Article 6 governs the use of a private mediator designated by the parties in the Agreement to Mediate. 

Article 7 gives the court the power to pick one or more mediators off the Center's list, if the parties have not designated a private mediator. Parties have three business days to agree on a mediator from that list. 

- Mediator Dismissal

Article 7, however, limits party self-determination when "either party objects to, and requests disqualification of, the mediator, or where the mediator is removed, steps down, passes away or fails to keep performing his mission for any reason whatsoever. . . ."  In those situations, the court "shall appoint a substitute mediator from the ones included in the mediator lists."  Better practice would be to allow the parties to select the substitute mediator, within a reasonable time frame that does not delay the resolution of the case. 

Article 8 governs recusal, removal, disqualification, and unfitness of the mediator.  One provision states: 

• If the mediator fails, becomes unable or ceases to perform his mission in such a manner that would give rise to unnecessary procedural delay, yet fails to steps [sic] down, he may be removed at the request of either party to the dispute based on a decision of the competent court that may not be challenged by any means of challenge.

This provision suggests that the court must approve any removal of the mediator after a party raises a concern with the court.

Taken together, parties not only have great control over the appointment of a private or listed mediator, but they can also influence his or her dismissal or termination. However, the legal scheme contemplates a more active role for the court if the parties require a substitute mediator. 

- Mediator Lists or Rosters: A Cautionary Note

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 the UAE avoids making the same mistake, especially given the diversity of its population and the companies that do business in the country. 

Giving parties in the UAE the option to select a private mediator, as specified under Article 6, can help them avoid any limitations of the lists maintained by the Centers.  However, cautious lawyers need to include this private mediator option in the ADR clause of any contracts they draft.

How Many Mediators will Participate?

In my earlier post, analyzing the Qatari Mediation Law, I stated that one aspect of the selection process needs revising.  Articles 4 and 8 of that law require the parties to 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 Qatari 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. 

The UAE Commercial Mediation Law shows the more extensive experience of its drafters with the process of mediation.  It does not place any limits on the number of mediators the parties may choose.  

How Long Should each Session Last?  Will Some Parties Need More Frequent Breaks? Will the Mediation Require Multiple Sessions over Several Days?

Articles 5, 9, 10, 16, and 23 of the UAE Commercial Mediation Law deal with session length and termination of the process.  Article 5 provides: 

• The Competent Court shall include the following details in the decision of referral to mediation:

* * *  

• The mediation duration, which may not exceed three months of the date of notifying the mediator of the assignment, and shall be renewable for a similar period only once under a decision of the competent court at the request of the mediator and with the approval of the parties." 

Similarly, Artice 23, governing extrajudicial mediation, limits the mediation time frame to three months beginning on the date the mediator accepts the appointment. Parties may agree to one extension of three months, if the supervising judge approves the extension.  

Thus, if the mediator requests, the parties agree, and the court approves, the mediation could continue over a period of six months.

Articles 9 and 10 mention "mediation sessions," thus the law contemplates the option of holding more than one session.   However, this Article seems to give the mediator the power to set the session dates and venues.   A good mediator will negotiation these matters with the parties or their lawyers., especially when the failure to attend two consecutive mediations can end the process and result in the imposition of the full cost of the mediation on the missing party. See Articles 16 and 21.

Article 16 allows the mediation to end when the parties sign a settlement agreement; when the parties agree that judicial mediation should end "for whatever reason"; when any party tells the mediator he or she wants to end the mediation; when the mediator decides the process is "not beneficial and that there is no possibility to reach a resolution for the dispute"; if a party fails to attend two consecutive mediation sessions "without reasonable excuse"; or the scheduled time frame expires.   Thus, this article gives one or both parties the power to end the session for any reason.

Taken together, the parties share control over the length of the mediation process with the court and the mediator.  Parties, through the mediator, can seek an extension of the process for an additional time, but a court must approve the extension.  Finally, they can end the mediation for any reason "whatsoever." 

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 and trainer, 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.  I discussed problem-definition in my earlier post here. 

Unlike Article 4 of the Qatar Mediation Law, the UAE Commercial Mediation Law does not give the mediator explicit authority to determine issues in the dispute.  Nonetheless, a well-trained mediator will identify issues/interests with the active participation of the parties. 

Who Influences which Neutral Fact- or Neutral Legal-Experts Participate in the Process?

Article 11 of the UAE Commercial Mediation Law governs the use of experts to assist the parties in gathering needed information or doing some reality testing on legal liability. It provides that the mediator may "engage the experts whose names are recorded in the expert rosters of the Ministry or local judicial authorities, as the case may be, or any other experts to be agreed upon by the parties, for the purpose of providing technical and technological expertise with the aim of resolving the disputes brought to them."  Hmmm.  This provision raises two issues.

First, the article suggests only the mediator may ask a neutral 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.

Second, the article limits experts to those offering "technical and technological expertise."  Would the word "technical" include the neutral legal evaluation of a lawyer or retired judge?  While Article 10 of the law allows the mediator to "give an opinion if requested by the parties, evaluate the documents and evidence furnished by the parties, and introduce the judicial principles relating to the dispute and others [?] for facilitating the mediation process, this evaluative role, especially if it borders on legal advice, blurs the professional roles of the mediator.  Moreover, the mediator may not have the substantive expertise to provide the needed evaluation.  For instance, a highly competent mediator who may have expertise in trademark law will not be competent to provide a legal evaluation in a construction law case.  Thus, parties may need a construction law lawyer to provide that expert opinion.

The drafters should amend the law to make clear that the expert can include legal experts offering legal-neutral evaluation.

How will the Disclosure of Information in the Process be Treated Under Rules of Confidentiality?

I plan to discuss in a later post the articles of the UAE Commercial Mediation Law governing confidentiality in the process.  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 10, 14, 15, 16, 17, and 18 of the UAE Commercial 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.  Unfortunately, the law does not give a specific list of the types of communications deemed confidential. Instead, it provides a very general definition of confidential "information" in Article 14.

- Confidentiality of Caucus Communications

Article 10 permits the mediator to hold "private sessions with each party . . . but may not disclose to the other party any information that comes to his knowledge within such sessions, without the prior approval of the disclosing party." (Emphasis added.)  This limitation is a big deal!  Unlike the Qatar Mediation Law, the mediator may not make disclosures without prior party consent.  The law shifts the burden to the mediator to maintain confidentiality.  A well-trained mediator will confirm what he may disclose before returning to the joint session or before entering a private "caucus" session with the other party. This approach reflects the laws in other jurisdictions that make caucus communications confidential, unless the party specifically agrees to the disclosure of a particular communication.  

In contrast, the Qatar Mediation 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." This puts a burden on the disclosing party to raise confidentiality after every interaction with the mediator. Thus, the Qatari approach can be a trap for unsuspecting parties or their lawyers.  

- Confidentiality of Information that Comes into Existence During the Mediation

Article 14 of the UAE Commercial Mediation Law is a very short clause when compared to the confidentiality scheme set out in the Qatar Mediation Law.  It limits the disclosure of "any information that comes into existence during the mediation procedures, without the approval of the parties . . . ."  

It lists only three exceptions:

• unless the information relates to a criminal act,
• the final settlement agreement, and
• "the documents and papers required for [the settlement agreement's] enforcement."

Parties bound by this rule are the Center, mediator, parties, and "everyone involved in the mediation process."  Thus, the law would also bind third-party witnesses and experts. 

Thoughtfully, the drafters explicitly recognized that only a communication that "comes into existence during the mediation procedures" is confidential.  That distinction was not clear in the Qatar Mediation Law.

Accordingly, 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 related to a criminal act. 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. 
• A party's failure to attend two consecutive sessions of mediation under Article 16.
• The mediator's report to the court about "the outcome of the judicial mediation" under Articles 16 and 18, so long as the report does not disclose confidential information.  This report could disclose the fact that the parties reached agreement in whole or in part; or the fact that the parties failed to reach agreement and, under Article 17, describe "how far the parties and their attorneys are committed to attending scheduled sessions."   I am not sure what the law intends with this part of any mediator report, but it suggests the mediator need only disclose that further sessions would not be beneficial. 
• The settlement agreement under Article 18 and any related enforcement documents.

Nonetheless, the drafters may want to amend the law to make clear that the disclosing party controls any breach of confidentiality.  The current language suggests that both parties must agree to the disclosure.  This designation goes to the issue of who owns the privilege.  I discuss that issue in much greater detail in my later post on confidentiality. 

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. 

- Disclosure of the Settlement Agreement

Articles 18 (for judicial mediation) and 23 (for extrajudicial mediation) of the UAE Commerical Mediation Law require the mediator to provide the Center or court with the signed settlement agreement and a report, presumably the report required by either Articles 16 or 17. 

Thankfully, it does not require the inclusion of any expert's opinion, as does Article 24 of the Qatar Mediation Law.

Taken together, parties have a lot of control over confidentiality in the process. The exceptions to confidentiality are quite limited and reflect more conservative standards for disclosures.

How will the Option Generation Process Proceed? Can the Mediator Suggest Options or Make Proposals?

Article 10 of the UAE Commercial Mediation Law provides: "In the course of mediation sessions, the mediator may hold discussions with all parties involved on the matter of dispute and their claims and pleas and take whatever actions deemed appropriate to bring their points of view closer to each other, with the aim of reaching an amicable resolution." (Emphasis added.)  Hmmmm. May take any actions deemed appropriate?

Clearly, this provision raises issues touching on the core values of mediation.  First, as I discuss in my later post on mediator neutrality towards the parties and the outcome, some interventions by a mediator can undermine his or her neutrality.  Second, some interventions, as I discussed here, here, and here can undermine party self-determination over the outcome.  A well-trained mediator will know the professional limits to any intervention, but clearly a mediator must use only interventions that respect the core values of mediation.  No room exists for coercion, deception, fraud, misinformation, or threats of any kind.  This list only outlines the outside limits on inappropriate actions.

Article 10 specifically grants the mediator the power to: "give [an] opinion if requested by the parties, evaluate the documents and evidence furnished by the parties and introduce the judicial principles relating to the dispute and others [?] for facilitating the mediation process."   Thus, this provision contemplates a legal neutral evaluative role of the mediator.  

Interestingly, the UAE Commercial Law does not explicitly envision the use of a mediator proposal. However, it could be deemed an "appropriate action" by a mediator.  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 [Qatari] 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.

Note, in this regard, that Article 10 of the UAE Commercial Mediation Law allows the mediator's opinion "if requested by the parties," thus reserving control over this intervention in the parties. 

Lawyers representing parties in mediation in the UAE will need to develop strategies for handling mediator opinions and 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 given too early in the process by an unskillful, arrogant, or impatient mediator?  Lawyers should consider delivery?  I would never want a mediator opinion or proposal delivered outside of a caucus.  What type of opinion or proposal is planned?  What technique will the mediator use to create the opinion or proposal?   These are all process choices.

Who Decides Whether and When to Caucus and which Party Participates in the Caucus First?

Article 10 of the UAE Commercial Mediation Law governs caucus, or "private sessions." No further guidance exists on the caucus process except the rule governing confidentiality discussed above.  

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. 

The UAE Commercial Mediation Law defines the settlement agreement in Article 1 as: "A document created by the mediator, signed by the parties, and setting out the settlement details eventually reached by the parties for amicable resolution of their dispute, in whole or in part."   (Emphasis added.)  The word "create" indicates bringing something into existence, which could connote a direct drafting role or a more supervisory role for the mediator.  Compare the language of the Qatar Mediation Law here that may impose a more active drafting role on the mediator.   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.  I discuss the settlement agreement drafting process in more detail in a later post. 

As noted above, the mediator must file reports with the Center or court in the event of settlement or the failure to settle under Articles 16, 17, and 25 of the UAE Commercial Mediation Law.

Provisional or Precautionary Measures.

One article addresses what the court may do while the parties pursue mediation to prevent any prejudice to the litigated case.   Article 5 tolls any legal or judicial time limits.  Perhaps, by example, in a complex reinsurance dispute in the U.S., my client successfully petitioned the court to toll the statute of limitations during the mediation process.  

This article also allows the court "to take necessary measures and actions to safeguard the rights of the parties and issue urgent or interim decisions deemed necessary."  I assume those actions will come only after a petition or motion of one or both parties for a protective measure.  

Other Procedural Choices by the Parties

The parties must agree to the financial compensation paid to the mediator under Article 1's definition of "Mediator's Fees" and Article 6's fee setting provision for private mediators.  Article 21 allows court intervention in the fee payment process for any "non-agreed final mediation costs." 

Article 3 provides that parties may designate in the Mediation Agreement whether the parties will conduct the mediation in a non-Arabic language (thus suggesting Arabic is the default language).  If the parties choose this option, "the documents and statements submitted shall be translated into Arabic, in accordance with the provisions of the above-referenced law [Federal Law No. [6] of 2012] regulating the translation profession."  While this clause is not clear, it seems the parties must make translated documents available if they plan to use them in the mediation.  Interestingly, the law is not specific about the language of any documents filed with the Center or the court, including the final settlement agreement and any mediator's reports.   Again, the assumption seems to be that these documents will all be in Arabic.

Article 9 requires each party to submit a confidential pre-mediation submission to the mediator. It should be a brief statement of the "claims and pleas, accompanied by the supporting documents and evidence." In some cases, a party may want to limit the disclosures made in this document.  Accordingly, a party could lose some self-determination if the mediator demands extensive disclosures in this document, including the party's bottom line.

Article 10, governing multiparty disputes, allows the parties to agree to proceed in mediation, subject to the court's approval, even if another party fails to join the mediation process.  

Article 11 allows the mediator to hear testimony of third parties, if all parties agree.  

Article 15 prohibits a mediator from giving testimony against any of the parties to mediation "unless otherwise permitted by the party concerned or agreed by the parties . . . ."  This clause sets up a very vague exception to mediation confidentiality, which I will discuss in a later post.  Most often a party, or both parties, will seek mediator testimony when attempting to void or clarify the language of a settlement agreement.  

Article 19 states: "Unless otherwise agreed by the parties, the mediation agreement shall remain valid in accordance with the provisions of this law" even if a court later finds the affirmed settlement agreement invalid, unless the affirming court found the agreement to mediate invalid or voidable. I am not sure when this situation would arise. It makes the settlement agreement binding no matter what the court does after the close of the mediation, so long as they parties entered a valid agreement to mediate. 

  

The UAE Commercial Mediation Law does not mention a number of the process choices I listed in the first part of this post, including specific control of 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, a well-trained mediator will resolve these issues in pre-mediation contacts with the parties or as the mediation evolves.  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. 

Conclusion

While the UAE Commercial 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 "elicitive" orientation.  They will lose a lot of process control if the mediator has a more "directive" orientation. 

 

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

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.