7/16 An Analysis of Qatar’s Mediation Law No. 20 of 2021, Party Self-Determination, Part 2: Substantive Decision-Making
In my last post here, I set out a framework for analyzing the provisions of the Qatar Mediation Law impacting party self-determination, high-quality decision making, and the quality of the process. I used a framework developed by Prof. John Lande in his law review article, How Will Lawyering and Mediation Practices Transform Each Other?, 24 Fla. St. U. L. Rev. 839 (1997), available here.
The Lande Framework
Lande identifies seven factors affecting the quality of party decision making:"The factors include: (1) explicit identification of the principal's goals and interests, (2) explicit identification of plausible options for satisfying these interests, (3) the principal's explicit selection of options for evaluation, (4) careful consideration of these options, (5) mediators' restraint in pressuring principals to accept particular substantive options, (6) limitation on the use of time pressure, and (7) confirmation of principals' consent to selected options."
Relevant Articles of the Qatar Mediation Law
The following Articles of the Qatar Mediation Law raise issues of party self-determination:
Article 2 governing the scope of the law, which I discussed in an earlier post here.
Article 4 governing the number of mediators (an odd number) and the mediators' ability to "determine issues" and propose solutions, but who may not "impose any dispute resolution on any parties."
Article 5 governing the qualifications of the mediator.
Article 8 governing the choice of mediator or mediators, so long as the number is odd. Allowing the court to appoint a mediator if the parties fail to do so.
Article 9 governing a mediator's conflict of interest arising if he or she is a member of an arbitral or judicial panel in the same dispute or any part of it.
Articles 11 & 12 governing mediator withdrawal, recusal, dismissal, or resignation.
Article 13 governing the mediator's delay in proceeding with the mediation.
Article 14 governing sanctions for a mediator's bad faith, collusion, or gross negligence.
Article 15 governing the parties right to opt out of court ordered mediation.
Article 20 limiting the mediation to 30 days, plus a possible additional period of time.
Article 24 setting out the drafting duties of the mediator for the final settlement agreement.
Article 26 giving the court the right to refuse to authenticate the settlement agreement for several reasons, including fraud, deception, a party's lack of capacity, or the inability to perform it in some way.
Article 28 governing termination of the mediation.
Article 29 governing the party's option to file a lawsuit if the mediation fails.
Article 30 again discussing proposals submitted by the mediator.
Article 31 governing disclosures required for a legal opinion (which I interpret as the use of "early neutral evaluation" or "legal neutral evaluation").
Theory to Practice: Application of the Lande Framework to the Qatar Mediation Law
Issues and Options
After reviewing the identified Articles in the context of the Lande framework, I was pleased to see that they address party self-determination in connection with the careful identification of goals and issues; a robust process for identifying plausible options; and careful evaluation, consideration, and selection of the options. Articles 4, 24, 26, and 30 focus on these aspects of the mediation process.
Article 4 provides:
"Mediation between the parties shall take place through the holding of one or more settlement sessions by one or more mediators . . . to assist the parties in resolving their dispute, including:1- Determination of the issues, [and the] subject of the dispute between the parties.
2- Searching for solutions to the dispute and proposing them to the parties.
3- Communication with the parties.
4- Reaching an agreement to settle the dispute amicably.
Accordingly, this Article contemplates a potentially careful assessment of the issues, a search for options, improved communication between the parties, and an amicable resolution of the dispute. The Qatar Mediation Law clearly envisions the essential components of party self-determination, and leaves it to the skills of the mediator and perhaps mediation-provider rules or ethics codes to ensure the process is robust.
At first, I was very concerned that the 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.
The last line of Article 4 seeks to find a balance between the mediator's power to propose an option and his or her control over the outcome of the mediation. It clearly says the "mediator shall not impose any dispute resolution on the parties." Final decision-making power appropriately remains with the parties. Lande says we protect party self-determination by ensuring mediator restraint in pressuring principals to accept a particular substantive option.
Article 24 governs drafting of the final settlement agreement. It provides, in pertinent part:
"The mediator shall, in the event of reaching a settlement of the dispute, wholly or partially, through Mediation procedures, execute the settlement agreement in writing . . . .The settlement agreement shall include . . . 6- [a] detailed statement of what has been agreed between the parties to the dispute."
Accordingly, this Article should ensure that the parties confirm their consent to the selected options for settlement, assuming they have sufficient opportunity to review the mediator's draft settlement agreement, and, ideally, they have the opportunity to seek legal advice before they sign the agreement.
In the U.S., many mediator ethics codes are cautious about imposing a duty on the mediator to draft the settlement agreement. For one thing, if the mediator is not a lawyer, some states would consider this drafting activity the unauthorized practice of law. I disagree and wrote a long article about this topic. See Paula M. Young, A Connecticut Mediator in a Kangaroo Court?: Successfully Communicating the “Authorized Practice of Mediation” Paradigm to “Unauthorized Practice of Law” Disciplinary Bodies, 49 S. Tex. L. Rev. 1047 (2008), reprinted at Mediate.com here.
At the same time, the mediator will often prepare a bullet point list of the agreed terms for use by the parties' lawyers in drafting the settlement agreement. I have to believe that given the scope of the Qatar Mediation Law, the parties will use lawyers in the mediation process, and they should play an active role in drafting the settlement agreement.
Finally, the mediator should resist the temptation to add contractual boiler plate clauses if the parties have not expressly agreed to them.
Article 26 governs the court's authentication of the settlement agreement. It provides:
"The court may refuse to authenticate the settlement agreement if it is in violation of the law or public order, if it was entered into through fraud or deception, because one of the parties to the dispute lacks capacity, if it is difficult to conciliate its subject, or if it is impossible to execute one of its clauses."This Article raises a number of issues about contract enforcement that I will discuss in a later post. For now, I simply want to point out that it provides one more procedure to better ensure that the parties have confirmed their consent to the selected settlement options.
Article 30 governs confidentiality in the process. It makes the "[p]roposals submitted by the mediator" confidential. In doing so, it reinforces the intention to confer this proposal power on the mediator. Again, I urge caution in exercising the power.
Inappropriate Time Pressure
Finally, Lande expresses concern that the mediator can use time pressure to undermine party self-determination. The Qatar Mediation Law does not directly deal with this issue. It does place a time limit on the length of the mediation under Article 20. It provides:
"The mediator shall complete the mediation work within a period of no more than thirty working days from the commencement of its procedures, and he may extend this period for another period with the consent of the parties."For most disputes, thirty days should be plenty of time to resolve the dispute or terminate the process. This, of course, assumes that the mediator proceeds diligently to convene the process after his or her appointment. I have to admit it once took me more than three weeks to find an available date in a multi-party mediation involving three parties and three lawyers.
In some more complicated disputes, parties may need additional time to reach a careful considered settlement of the dispute. The language of Article 30 is not clear about how long the additional time period can be or how many additional time periods the parties can consent to have.
Article 13 gives the parties the power to dismiss any mediator whose performance has lead to "an unjustified delay in the mediation procedures." This power helps them protect party self-determination by ensuring that they have sufficient time to carefully identify their goals and issues, identify plausible options, and carefully evaluate, consider, and select the options. This power takes on even greater importance given the time limits found in Article 20. Does the appointment of a new mediator restart the calendar?
Party Self-Determination over the Design of the Mediation Process
Not surprisingly, the remaining Articles of the Qatar Mediation Law that I highlight above govern process or program design. They nonetheless impact party self-determination. I'll address those issues in my next post.
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