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

 

15/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 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 decision-making.” 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.

At the same time, 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).

Sanctions Imposed

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 earlier 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 UAE Commercial Mediation Law of 2021

 Articles 4, 6, 7, 14, 19 and 26 discuss mediator ethics and misconduct.  

Article 4 requires Centers to maintain lists of qualified mediators.  To join a list, the mediator must be experienced, and "known for their expertise, integrity, and neutrality."  This article also instructs that Minister of Justice or the local judicial authority to set the standards for "selection and deregistration of mediators. . . ."

Article 6, which I have discussed in an earlier post, governs the appointment of a private mediator.  It requires the mediator to attest to his or her neutrality and independence, and he or she must contact the Center in writing if any facts or circumstances exist that "would cause either party to cast doubt on his [or her] neutrality or independence.  This report will trigger the disqualification provisions of Article 7 if a party seeks a substitute mediator.   

Article 14 governs confidentiality in mediation, which I discussed in greater detail in this post.  It prohibits a mediator from disclosing any information provided in mediation without the approval of the parties, subject to a limited number of exceptions. The article further provides: 

• "Should the mediator violate the confidentiality, independence and neutrality rules set out in this Law, the aggrieved party may resort to the Center for imposing the administrative and disciplinary measures described in Article 26 of this Law on the mediator, and without prejudice to the mediator's civil and criminal liability."

Wait, what?  Civil and criminal liability?

Article 19 allows the Competent Court to find a settlement agreement invalid "where the agreement has taken place after the expiration of the mediation timeframe."  A careful, competent mediator would take precautions to ensure this potential problem would not arise -- either by extending the mediation timeframe, if possible, or by ensuring that the parties signed the agreement within the existing timeframe.  

Article 26 plays an important role in defining mediator ethics.  First, it requires the Minister of Justice to issue a Code of Professional Conduct for Mediators. Second, it states that mediators on a Center's list will be disciplined and penalized under Federal Law No. 7 of 2012 Regulating the Expertise Profession before the Judicial Authorities or  under local laws regulating "expertise work, as the case may be."  Third, it declares that a Center "may deprive the private mediators of practicing mediation work before the Center in case they violate the confidentiality, neutrality and integrity rules." 

One commentator explains the disciplinary process under Federal Law No. 7:

• "The New Law establishes a Committee of Expert Affairs comprised of at least five members (Article 12 of the New Law). Justice Omer Yunus Saeed is the Chairman of the Committee. Justice Tariq Yaqub Al-Khyat is the Vice-Chairman. This brings in trained jurists supervising a Committee entrusted with handling complaints relating to experts and expert reports (Article 13 of the New Law). The Committee may decide to dismiss a complaint or refer the complaint for further investigation after giving the expert an opportunity to state his case (Article 15 of the New Law). The Chairman of the Committee has the authority to request that the Public Prosecutor interrogate an expert (Article 16(2) of the New Law). The Public Prosecutor may commence disciplinary proceedings against an expert (Article 19 of the New Law).  A Disciplinary Committee comprised of three judges shall conduct the investigations it deems necessary and render a reasoned decision after giving the expert the opportunity to state his case (Articles 16(1), 17 and 20 of the New Law). 

About the sanctions that the regulators can impose on a mediator, this commentator continues: "Sanctions available to the Disciplinary Committee range from a warning to final cancellation of an expert’s registration (Article 18 of the New Law). In addition, Article 31 of the New Law empowers the Minister of Justice to appoint employees to audit an expert’s work."

This summary does not mention financial penalties, civil liability, or criminal liability.  It also does not contemplate a more restorative justice approach that would help the mediator gain competency, provide restitution, or offer an apology as the Florida sanctions discussed above do. 

I can't provide any additional detail, because I can't find an English-language copy of Federal Law No. 7.  Accordingly, I feel this discussion is incomplete. 

Next, up?  My last post in this series where I will cover four miscellaneous provisions of the 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.