6/n An Analysis of UAE's Commercial Mediation Law, Federal Law No. 6 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 UAE Commercial 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 UAE Commercial Mediation Law Governing Party Self-Determination over the Substance of the Mediation
The following Articles of the Qatar Mediation Law raise issues of party self-determination:
Article 1 defining "Mediation" and "Settlement Agreement," which I discuss here and in a later post here.
Article 10 governing the mediation sessions, including the evaluative role of the mediator.
Article 18 governing the affirmation of the settlement agreement by the court.
Article 19 governing objections to the settlement agreement and giving the court the right to refuse to authenticate the settlement agreement for several reasons, including a party's lack of capacity or that the agreement is invalid or voidable.
Article 20 governing the probative force of the court-affirmed settlement agreement.
Theory to Practice: Application of the Lande Framework to the UAE Commercial Mediation Law
Explicit Identification of Goals, Interests, and Plausible Options
After reviewing the law in the context of the Lande framework, I was surprised that it was not explicit in protecting party self-determination in connection with the careful identification of goals and issues and a robust process for identifying plausible options. In this regard, the Qatar Mediation Law provided more explicit protections, as I discussed here.
The Article 1 definition of "Mediation" describes the process as "an alternative method for amicable settlement of civil and commercials disputes . . . ." Surprisingly, the definition fails to mention the three core-values of mediation, including party self-determination. In contrast, the definition of mediation found in the laws of the Commonwealth of Virginia provides:
- “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.
This definition emphasizes communication, understanding, and restraint on the part of the mediator in crafting or selecting options for the parties.
Article 10 of the UAE Commercial Mediation Law governs the mediation sessions. It provides:
- "In the course of mediation sessions, the mediator may hold discussions with all parties involved on the matter of dispute and their claims and pleas and take whatever actions deemed appropriate to bring their points of view closer to each other, with the aim of reaching an amicable resolution. To that end, the mediator may give opinion if requested by the parties, evaluate the documents and evidence furnished by the parties and introduce the judicial principles relating to the dispute and others for facilitating the mediation process."
This section of the law certainly contemplates a process designed to identify the parties' goals, interest and plausible options. A well-trained mediator will have the skills to explicitly identify them, as Lande recommends.
In addition, the law contemplates a very active evaluative role of the mediator. The law allows a mediator's opinion, evaluation of any relevant documents, and what appears to be a legal evaluation of guiding judicial principles. But, unlike the Qatar Mediation Law it does not explicitly give mediators the power to propose solutions. However, the language allowing mediators "to take whatever actions deemed appropriate" could be interpreted broadly to allow mediator's to propose solutions. I discussed the risk of this type of intervention here.
Nonetheless, this more active evaluative role can affect the parties' perceptions of mediator bias in favor of one party, if the mediator does not handle the evaluation skillfully. As I'll explain more when I analyze the provisions governing mediator neutrality in later posts, a mediator can abuse this opportunity, especially unskillful mediators.
I note that the mediator may not give an opinion about the dispute without party consent. However, the law is unclear about whether parties must give prior consent to an evaluation of relevant documents or the introduction of a judicial principles. Explicit party consent to a more evaluative role of the mediator can go a long way in preserving the parties control over the substance of the mediation and its outcome.
Selection of Options for Evaluation, Careful Consideration of These Options, and the Mediator's Restraint in Pressuring the Principals to Accept Particular Substantive Options
Unlike the Qatar Mediation Law, the UAE Commercial Mediation Law is essentially silent on these aspects of party self-determination over substantive issues.
Confirmation of Principals' Consent to Selected Options
The Article 1 definition of "Settlement Agreement" describes it as "setting out the settlement details eventually reached by the parites. . . ."
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 draft settlement agreement, and, ideally, they have the opportunity to seek legal advice before they sign the agreement.
Unlike the Qatar Mediation Law, the UAE Commercial Mediation Law does not require the mediator to draft or "execute" the Settlement Agreement. Instead, Article 18 states: "If, at the end of the mediation process, the parties reach a settlement for the dispute, in whole or in part, the mediator shall furnish a report to the Center accompanied by the settlement agreement signed by the parties for affirmation." Article 16 indicates that the report describes "the outcome of the judicial mediation," but does not further describe the nature or specificity of the report.
In any event, Article 18 gives the parties one more venue to confirm their consent to the selected settlement options.
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 UAE Commercial Mediation Law, the parties will use lawyers in the mediation process, and they should play an active role in drafting the Settlement Agreement.
Finally, if the mediator plays an active drafting role, he or she should resist the temptation to add contractual boiler plate clauses if the parties have not expressly agreed to them.
Article 19 governs objection to the Settlement Agreement. It allows the court to consider a claim that the agreement is invalid for the following reasons:
- "Either party to the settlement agreement either has been lacking mental capacity or has had diminished capacity at the time of concluding the agreement;"
- "If there is no settlement agreement,"
- "[T]he agreement is invalid or voidable,"
- "[T]he agreement has taken place after the expiration of the mediation timeframe," or
- "If either party fails to provide defense due to invalid notification . . . of the mediation procedures or being unaware of the same for any other reason beyond its reasonable control."
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 20 makes the court-affirmed Settlement Agreement binding on the parties and gives it the probative force of a court judgment. Accordingly, lawyers representing parties in litigation, along with the mediator, have clear incentives to ensure that the parties have explicitly consented to the options settling the dispute, as Lande advises.
Inappropriate Time Pressure
Finally, Lande expresses concern that the mediator can use time pressure to undermine party self-determination. 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.
The UAE Commercial Mediation Law does not expressly address the time pressure issue.
The law contemplates "judicial mediation" for cases already in litigation and "extrajudicial mediation" for cases not yet in litigation. See definitions in Article 1. Provisions governing "judicial mediation" set no time limits on the length of the mediation. See Articles 5, 9, and 10.
However, Article 23 states: "The agreed mediation timeframe . . . may not exceed three months of the date of the mediator's acceptance of [the] mediation mission. Such a timeframe shall be renewable only once for a similar duration under a decision of the supervising judge," based on the parties' agreement and consistent with their Agreement to Mediate.
Thus, the UAE law allows a much longer timeframe to complete the "extrajudicial mediation" than does the Qatari law, which limits mediations to 30 days, plus one extension. And, the UAE law seemingly applies no limitation on the length of the "judicial mediation," unless perhaps specified in the court's referral of the case to mediation. These timeframes do not necessarily prevent time pressures imposed by the mediator that can undermine party self-determination.
Conclusion
Party Self-Determination over the Design of the Mediation Process
Other articles of the UAE Commercial Mediation Law govern process or program design. They nonetheless impact party self-determination. I'll address those issues in my next two posts here and here.
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.
Comments
Post a Comment