The Red Velvet Lawyer

  15/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, Mediator Misconduct Background I n 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 suffici...

  14/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, the Mediator's Fees and Expenses Background Mediators can charge by the hour, the half day, the whole day, or a flat fee for the entire mediation. Most ethics codes in the U.S. discourage a contingency fee based on the settlement value because it can compromise the mediator's impartiality towards and independence from the outcome of the mediation.  I wrote about this risk  here .  In some cases, usually family law cases, the spouse with greater financial resources may agree to pay the entire fee.  In that case, the mediator must take care that he or she does not show partiality towards the fee-paying spouse.  Mediation rosters, whether court-connected or created by private third-party providers (like AAA, JAMS, and IMI), will often list the mediator's fee schedule.  In any event, the mediator and the parties will negotiate the fee.  That fee agreement typically appea...

13/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, the Final Settlement Agreement A successful mediation ends with the parties signing a settlement agreement.  I have discussed the settlement agreement in earlier posts.  I discussed it in the context of party control over the process choices here and  here , in the context of confidentiality  here , and in the context of the referring court's management of the litigated case  here .  I will include those discussions in this post for the ease of the reader.  Article 1  of the UAE Commercial Mediation Law defines the settlement agreement 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.  As discussed below, requiring the mediator to "create" the settlement agreement raises some concern.  Duties of the Mediat...

  12/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, Referring Court's Management of the Litigated Case and the Mediation I now want to turn to the court's role throughout the mediation process. Court's Power to Refer Parties to Mediation The UAE Commercial Mediation Law makes clear that courts may refer cases to mediation if the parties have executed an agreement to mediate.   Two sets of judges come in to play depending on which mediation track the parties choose. As I noted in an earlier  post ,  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. Article 5 provides:  "The Competent Court may issue a decision to refer the dispute to mediatio...

  11/n An Analysis of the UAE’s Commercial Mediation Law, Federal Law No. 6 of 2021, Confidentiality in Mediation, Part 2: A Few Unanswered Questions In my last  post , I set out a framework for analyzing statutes or rules governing confidentiality in mediation.  I will use it to analyze the UAE's Commercial Mediation Law.  In addition, in an earlier post , I also analyzed party control over the disclosure of information exchanged during mediation. Articles  10, 14, 15, 16, 17, and 18  of the UAE Commercial Mediation Law govern confidentiality in mediation.  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. In this post, I will consider: Who is the holder of the privilege who may prevent the disclosure of confidential information? In what subsequent proceedings will confidentiality prevail? What is confident...