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

 

5/n An Analysis of the UAE's Commercial Mediation Law, Federal Law No. 6 of 2021, Party Self-Determination, Part 1

So far, in analyzing the UAE's Commercial Mediation Law, I have provided posts covering:

• An introduction to the law and my analytical focus here and here.
• My interest and expertise in the subject matter here.
• A cultural disclaimer here.
• The definition of mediation here, and 
• The scope of the law here.

I will now turn to how the law supports or undermines the core values of mediation recognized in the U.S. and other countries.  Those core values are:

• Party self-determination
• Mediator neutrality, and
• Confidentiality of communications made during the process.

For each of these discussions, I will provide one or more posts to describe the analytical framework I am using. In the next posts, I'll apply that framework to the UAE's Commercial Mediation Law.

Lande Analytical Framework for Party Self-Determination

In 2006, I wrote the first law review article analyzing the Revised Model Standards of Conduct for Mediators created in collaboration between the American Bar Association, the Association for Conflict Resolution, and the American Arbitration Association.  See Paula M. Young, Rejoice! Rejoice! Rejoice, Give Thanks, and Sing: ABA, ACR and AAA Adopt Revised Model Standards of Conduct for Mediators, 5 Appalachian J. of L. 195 (2006), available here.  I reproduce the discussion from that article without specific quotation of the text.  

In analyzing the provisions 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.  In the following discussion, I have omitted footnote references to his article.

Professor John Lande invites us to think about party self-determination and mediator interventions that may undermine it, by thinking of the parties’ opportunity to exercise “high-quality decision making.” The idea captures the concepts of individual-level party empowerment and party decision making responsibility. He defines high-quality decision making “as a condition in which a principal has exercised his or her responsibility for making decisions in a dispute by considering the situation sufficiently and without excessive pressure.”  

He 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."

Parties need these protections. Interference with a party’s self-determination, by offering legal advice; by giving legal opinions; by recommending settlement; or by engaging in more overt acts of coercion, formed the most frequent allegation against mediators in grievance complaints filed by unhappy mediation parties in Florida and Georgia, U.S.A. Interference with party self-determination was the second most frequent allegation in complaints filed against Virginia mediators. 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.

Explicit Identification of the Principal’s Goals and Interests

Lande notes that mediators enhance the quality of decision making by exploring the parties’ goals and interests to “an appropriate extent under the circumstances."

Explicit Identification of Plausible Options for Satisfying these Interests and the Principal’s Explicit Selection of Options for Evaluation

Lande next asserts that the quality of a party’s decision making can be undermined when he or she fails to identify plausible options. He believes that a mediator can play a very active role in suggesting options, “if done properly.” He recognizes that parties may only have the time and resources to focus on the plausible options for the most important issues or interests they seek to resolve or satisfy. 

Similarly, the quality of a party’s decision making may depend on the options they choose to consider. Here, he expresses concern about mediators who may “implicitly or explicitly steer the principals to focus on one option over another without their consent.” But, he also suggests that in some situations a mediator may ask the parties to focus on a certain option so long as they “do so explicitly and with limited pressure on the principals to accept the mediators’ suggestions.”

Careful Consideration of the Options

Lande next suggests that parties must be able to evaluate the options using appropriate information. They must also be able to measure the pros and cons of any option. Lande suggests that mediators can assist parties in this process by eliciting “realistic . . . estimates of the likely costs and consequences of trial.” 

But, he asserts that mediators compromise high-quality decision making when they portray the litigation process as entirely negative or when they exaggerate the risks of litigation. 

However, Lande suggests that a mediator could increase the quality of decision making if he gave an opinion about the likely outcome in the pending case or in similar cases, but only after the parties explicitly invite the evaluation. The mediator would nonetheless need to present the information without putting pressure on the parties to accept a specific option.

Mediators’ Restraint in Pressuring Principals to Accept Particular Substantive Options

Lande expresses increased concern when a mediator pressures parties to substitute the mediator’s judgment for their own about a preferred option as it affects the ultimate outcome of the mediation. The pressure may take the form of a threat to report a party’s recalcitrance to a judge. A mediator can apply more subtle pressure, Lande suggests, by threatening to withdraw his or her respect for the party. He also fears that mediators may assume that settling, per se, has greater value than not settling. As a result of this outcome bias, they may hinder a party’s decision to withdraw from the mediation and pursue his or her constitutional right to trial.

Limitation on the use of Time Pressure

Lande also considers the role time pressure can play in undermining high-quality decision making. Time pressures can impair a person’s judgment. They may arise externally if, for instance, a case is set soon for trial. A mediator’s effort to remind people of the external time pressure, in this context, may enhance the quality of decision making in the mediation process. 

Lande fears, however, that mediators will create time constraints to pressure parties. This pressure takes at least two forms: attempts to hasten unnecessarily the decision making process or attempts to exhaust parties by holding marathon sessions. Both types of pressures may keep parties from seeking further advice, consulting other professionals, having time to reflect on the information obtained in the mediation, or engaging in further negotiation.

Confirmation Of Principals’ Consent to Selected Options

Finally, Lande says mediators can enhance the quality of a party’s decision making by taking time to learn whether a party understands the proposed agreement, needs additional information, or needs to consult with another professional. A mediator needs to take special care, at this stage of the process, when a party seems ambivalent, cautious, or uncertain.

As noted above, in my next post, I'll apply this framework to the UAE's 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.