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

 

3/n An Analysis of UAE’s Commercial Mediation Law, Federal Law No. 6 of 2021, The Definition of Mediation

UAE's new mediation law defines "Mediation" in  Article 1 as: "An optional and alternative method for amicable settlement of civil and commercial disputes that arise or might arise between the parties to a contractual or non-contractual legal relationship, through engaging a neutral Third Party [Mediator].  Mediation may be a judicial or extrajudicial nature."

Ok, this definition is somewhat better than the definition of mediation found in the Qatari mediation law, discussed here. 

First, what are the two terms used in the last clause?

"Judicial mediation: 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."   My guess?  This term will become frequently used when later provisions discuss court management of the dispute while it enters, proceeds through, and exits the mediation process. 

"Extrajudicial mediation: 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."  I'll talk about the Mediation Agreement in a later post.  But, interestingly, unlike the Qatari law, this law contemplates pre-litigation mediation.  Thus, it's scope is necessarily broader.  And, its purpose exceeds legitimizing the power of courts to refer parties to mediation.  Instead, the focus for extrajudicial mediation is upon the language of the Mediation Agreement. 

Moreover, the definition contemplates pre-dispute mediation.  Thus, a party who sees a dispute coming could trigger a mediation under this law. Perhaps they need a change order because of increasing costs, labor shortages, or force majeure conditions.  Or, perhaps a supply chain issue makes timely performance questionable.  Just today, I learned that over 200 cargo ships are stuck on either side of the Panama Canal because drought has lowered water levels in the canal system making ship traffic dangerous.  Basically, the law gives contractual parties a forum and a facilitator to help them resolve contractual performance issues before parties escalate the conflict and damage the relationship.    

I am curious to see if this more sophisticated thinking about the process continues throughout the law.  Stay tuned. 

Sample Definitions of Mediation

Before I discuss this definition, I'd like to share some definitions I use in my law school courses in the class introducing mediation to them: 

• “Mediation is simply a negotiation conducted with the assistance of a third party….[T]he mediator has no decision-making power, maintains strict confidentiality and involves the clients deeply in the settlement process.” HAROLD ABRAMSON, MEDIATION REPRESENTATION (2004) at 67-68.

• “Mediation is an extension or elaboration of the negotiating process that involves the intervention of an acceptable third-party who has limited or no authoritative decision-making power. This person assists the principle parties in voluntarily reaching a mutually acceptable settlement of the issues in dispute. [M]ediation leaves the decision- making power primarily in the hands of the people in conflict. . . . Mediation is usually initiated when the parties no longer believe that they can handle the conflict on their own . . . .” CHRISTOPHER W. MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 8 (2d ed. 1996) (creator of Sphere of Conflict).

• “Mediation is the feminine face of dispute resolution. Mediation is not the cause but a product of significant changes in society, and it is the beneficiary of a trend away from confrontation toward problem solving and beyond to mutual respect and wider gain. There is widespread evidence that people do not lose their human characteristics when they become litigants – that they prefer processes in which they have an opportunity for choice and for significant participation, particularly a chance to tell their stories.” BARBARA A. PHILLIPS, MEDIATION FIELD GUIDE: TRANSCENDING LITIGATION AND RESOLVING CONFLICTS IN YOUR BUSINESS OR ORGANIZATION xiv (2001) (former U.S. Attorney).

• “Mediation’ means a process in which a neutral facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and resolve their dispute.” VA. Code. §8.01-576.4.

• “Imagine, if you will, a jigsaw puzzle in which the pieces can autonomously change their shape. The person attempting to solve such a puzzle has to continuously adjust his or her vision of how the pieces might align themselves to make a whole. Mediators are, in some ways, trying to solve such a puzzle. They seek to understand, with the same degree of attachment as the person solving the puzzle, the manner and extent to which the parties are willing to adjust their positions to fit those of the other parties, and yet paradoxically they can do so only by involving themselves in a deeply personal way with the parties.” DANIEL BOWLING & DAVID HOFFMAN, BRINGING PEACE INTO THE ROOM: HOW THE PERSONAL QUALITIES OF THE MEDIATOR IMPACT THE PROCESS OF CONFLICT RESOLUTION 40 (2003).

• “For some of us, mediation means negotiating a cease-fire, while for others it is facilitating a settlement, ending a dispute, resolving the underlying reasons people are fighting in the first place, transforming the parties, dismantling dysfunctional systems, promoting compromise, encouraging dialogue, ending litigation, coaching parties to let go and move on, promoting forgiveness, empowering dialogue, recommending solutions, or achieving reconciliation.” Id. at 52.

Essential Elements of a Definition

These iterations of the definition highlight several aspects of mediation:

• The use of a third-party neutral who has no decision-making power, but helps the parties communicate, identify interests and issues, enhance understanding between them, negotiate, and resolve the dispute.
• The parties retain the decision-making authority and work to reach a mutually acceptable settlement agreement.
• The mediator has no power to impose a solution on the parties, unlike arbitration.
• The process is subject to broad rules of confidentiality. 

Shortcomings of the Definition in Qatari Mediation Law

Now, let's look again at the UAE law's definition of Mediation.  

Unlike the Qatari law, it mentions the use of a third-party neutral.  

It does not attempt to define the role of the mediator (as facilitator), or conversely limit his or her role when it comes to option generation or decision-making. The drafters probably thought other parts of the law would fill this gap. 

The definition of "Mediator," is not sufficient in further defining or limiting the mediator's role.  That definition states that a Mediator is "[e]ach natural or legal person engaged by the Parties to perform a mediation mission for amicable resolution of their dispute, whether such mediator is a private mediator or is included in the Center's mediator lists."

It does reinforce the aspirational goal of mediation that it is an "amicable" process (compared to what?). But, I have been involved in some very unamicable mediations that still settled the dispute.  Perhaps a better word choice would be "voluntary means of settling disputes."  

By reinforcing the role of the parties to reach "a settlement" it does reflect a core value of mediation, that of party self-determination.  I will focus on this core value in later posts.

In short, the drafters could improve this definition to highlight the voluntary and confidential nature of the process and the mediator's facilitative role.

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.