9/n An Analysis of UAE's Commercial Mediation Law No. 6 of 2021, Mediator Impartiality: Using the Firestone Grid as an Analytical Tool
Mediator impartiality is one of the core values of mediation. My research revealed that conduct that makes a party believe that the mediator has lost his or her impartiality is the most frequently cited reason for filing a complaint against a mediator in the U.S. states of Virginia and Maine. It appears as the second most frequently raised allegation in Florida, Georgia, and Minnesota. Parties easily perceive bias in the mediator's conduct or attitudes and it can result in disengagement with the process, a failed mediation, and ongoing impasse in the dispute.
Introduction
Mediator neutrality (or impartiality) gets attention in several articles of the UAE Commercial the Mediation Law. Article 6 of the law provides:- The [privately appointed] mediator shall sign a document proving his acceptance of the mediation mission as well as his neutrality and independence towards the parties and subject of the dispute . . . . . In the course of the mediation process, the mediator shall notify the Center in writing of any facts or circumstances that have arisen or may arise and that would cause either party to cast doubts on his neutrality or independence. In which a case, the procedures set out in Article [7.2] of this Law shall apply [governing removal or recusal of the mediator].
Article 7, governing the appointment of a mediator off a Center's list also requires mediators to "abide by the rules of neutrality and independence towards both the parties to the dispute and the matter of dispute."
Article 26 identifies one form of misconduct that can result in a mediator's discipline. It provides: "The Center may deprive the private mediators of practicing mediation work before the Center in case they violate the . . . neutrality and integrity rules."
Mediator misconduct can easily include, or result in, inappropriate relationships to parties or the subject matter of the dispute that undermines mediator impartiality. Article 26 of the UAE Commercial Mediation Law subjects mediators on a Center's list to the disciplinary measures and penalties set out in Federal Law No. [7] of 2021 Regulating the Expertise Profession before the Judicial Authorities. (I'll talk in detail about the scope of the law's regulated misconduct and its penalties in a later post.) As noted above, a Center, and perhaps the Ministry, can discipline a mediator failing to adhere to rules governing impartiality.
Article 26 requires the Minister of Justice to issue a Code of Professional Conduct for mediators. It is not clear whether the Code of Conduct applies to all mediators, or only to those mediators on any Center's list. This ethics code could better define the requirements that support mediator neutrality and independence.
The Firestone Grid
Mediator impartiality fits generally into four categories: (1) conflicts of interest, (2) conduct bias, (3) bias in favor of a specific outcome, and (4) lapses of impartiality that undermine party self-determination.
Greg Firestone, a Florida mediator, spoke about mediator impartiality at the October 2003 conference of the Association for Conflict Resolution. He suggested that the field think about these issues along two dimensions that create four quadrants on a grid. See the grid set out at the end of this post. On one side of the grid are the terms “parties” and “outcome.” On the other side of the grid are the terms “relationship” and “conduct." The resulting four quadrants are the following: “relationship-parties,” “conduct-parties,” “relationship-outcome,” “conduct-outcome.”
Quadrant 1: Impartiality in the Mediator’s Relationships with the Parties
- Past, Present, and Future Relationships
The mediator’s impartiality towards the parties is often discussed in terms of conflicts of interests. Firestone suggests that parties should consider the following issues when choosing a mediator. A party should learn if the mediator has any current or prior relationships with the other parties to the mediation or their counsel. Has the mediator represented a party in a legal matter previously? Has she provided one of the lawyers therapeutic counseling?Does she play golf with one of the lawyers? Does the mediator attend the same church, temple, or mosque as one of the parties? Do their children play on the same football team? Does the mediator get most of his or her business from one company or firm related to one of the parties? Can she remain impartial to the party who is not the repeat player in the referral system, like an insurance company?
As noted above, Article 6 touches on this quadrant in several ways. First, it requires a written affirmation that the mediator's neutrality and independence "towards the parties . . . ." It requires ongoing monitoring of "any facts or circumstances" that might cause a party to doubt the mediator's ongoing neutrality and independence.
Under Article 7, a party may request the disqualification of a mediator "for any reason whatsoever at any stage of the mediation process . . . ." In that situation, the court will appoint a substitute mediator.
Mediators appointed off a Center's list must also adhere to the rules governing neutrality and independence "towards both parties to the dispute . . . ." Article 7 does not provide any additional requirements. Presumably, the rules of the Center will govern the mediator's duty to disclose conflicts of interest and the removal of a mediator for any perceived loss of neutrality or independence.
Mediators appointed off a Center's list must also adhere to the rules governing neutrality and independence "towards both parties to the dispute . . . ." Article 7 does not provide any additional requirements. Presumably, the rules of the Center will govern the mediator's duty to disclose conflicts of interest and the removal of a mediator for any perceived loss of neutrality or independence.
Article 8 imposes a duty on the mediator to recuse if he or she loses her neutrality towards a party. It provides:
- The mediator shall, sua sponte, step down or recuse himself from proceeding with the mediation mission if there is any cause between him and either party to the dispute that would make him feel discomfort or inability to proceed with the settlement procedures without bias in favor of either party, unless otherwise agreed.
This provision, however, focuses on the mediator's subjective concerns about his or her bias. It also allows the parties to waive the requirement of recusal, thus recognizing that the parties may not share the mediator's concern about actual or potential bias against one or more parties.
Finally, unlike the Qatari Mediation Law, which is silent on this specific issue, Article 15 of the UAE Commercial Mediation Law prohibits a mediator from mediating "any dispute where either of its parties [are] the mediator's spouse or [a] relative by blood or marriage up to the fourth degree." The law thus recognizes the very intertwined familial relationships that exist in the region and presumptively disqualifies the mediator from acting in disputes involving relatives. In some ways, this prohibition may run counter to cultural norms where a family member might intervene on an informal basis in a dispute involving another family member.
Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties.
Finally, mediators should avoid creating an appearance of impropriety by representing parties in the future in the same or similar matter. Article 15 addresses this situation in several contexts. It prohibits a mediator "[t]o be an arbitrator, expert witness, or an attorney on any legal proceeding against either of the parties, with regard to the matter of dispute that is covered by mediation or any matter arising out thereof, even after the end of mediation procedures." In other words, a mediator cannot use his or her mediation practice to be a feeder system for other roles the mediator might play with the same parties in connection with the same or a related dispute.
Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest. They should check for conflicts with the same care imposed on lawyers by legal ethics rules.
Finally, unlike the Qatari Mediation Law, which is silent on this specific issue, Article 15 of the UAE Commercial Mediation Law prohibits a mediator from mediating "any dispute where either of its parties [are] the mediator's spouse or [a] relative by blood or marriage up to the fourth degree." The law thus recognizes the very intertwined familial relationships that exist in the region and presumptively disqualifies the mediator from acting in disputes involving relatives. In some ways, this prohibition may run counter to cultural norms where a family member might intervene on an informal basis in a dispute involving another family member.
Mediators must also avoid creating any conflicts of interest during the course of the mediation – for instance, by buying stock in the company owned by one of the parties.
Finally, mediators should avoid creating an appearance of impropriety by representing parties in the future in the same or similar matter. Article 15 addresses this situation in several contexts. It prohibits a mediator "[t]o be an arbitrator, expert witness, or an attorney on any legal proceeding against either of the parties, with regard to the matter of dispute that is covered by mediation or any matter arising out thereof, even after the end of mediation procedures." In other words, a mediator cannot use his or her mediation practice to be a feeder system for other roles the mediator might play with the same parties in connection with the same or a related dispute.
Mediators should error on the side of over-disclosure of conflicts of interest or potential conflicts of interest. They should check for conflicts with the same care imposed on lawyers by legal ethics rules.
Quadrant 2: Neutrality of the Mediator’s Conduct Toward the Parties
Next, Firestone urges mediation parties to consider whether the mediator can maintain, through his or her conduct, neutrality towards the parties. Will the mediator become frustrated, disrespectful, or heavy-handed if he or she believes a party or his or her client is uncooperative? Does the mediator hold any racial, religious, or cultural biases? Can he work with people that express racial bias? Does she think in traditional ways that may impose gender biases or reinforce gender-role expectations in the mediation?
Does anger make the mediator uncomfortable in a way that he may cut off a party’s expression of it? Does crying make the mediator uncomfortable in a way that he may suppress the expression of sadness, fear, vulnerability, regret, and other emotions expressed in this way or other ways? Can she work with borderlines, narcissists, sociopaths, and other high conflict personalities without those parties pushing her buttons or manipulating her?
Does she accept referral fees from lawyers who regularly use her in mediation, therefore consciously or unconsciously creating a bias in favor of the referring attorneys and their clients? Is one party paying the full cost of the mediation so that the mediator may end up showing bias in favor of that party? Is the party a repeat player? Can the mediator remain even-handed knowing that she may be dependent on one party for her next referral?
As noted in the Quadrant 1 discussion, the UAE Commercial Mediation Law addresses neutrality towards the parties in Articles 7, 8, 9, 15, and 26.
In addition, Article 21 governs payment of the mediator's fees. The parties will agree on the fee splitting. If the parties fail to agree on the payment of fees, "the competent court shall . . . determine the non-agreed final mediation costs . . . [and the fee payment] shall be divided and distributed between the parties either equally or in proportion to the respective interest in the case, at the discretion of the Court." This type of court supervision may mitigate any mediator bias in favor or against one party arising from fee-based circumstances, although it will not likely mitigate against the repeat player bias.
Quadrant 3: Impartiality in the Mediator’s Relationship to the Outcome
In an ideal setting, a mediator will defer to the high-quality decision making of the parties to settle (or not) and on what terms. I discussed party self-determination over the outcome in an earlier posts here and here. Firestone suggests that parties must consider the following situations because they change a mediator’s relationship to the outcome of the mediation. They can undermine party self-determination.
Does the mediator brag about a high settlement rate? Does the court-connected program director refer cases to mediators with high settlement rates? Should a party, therefore, be concerned that the mediator views the case as the next notch on his belt? Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party (a Quadrant 4 issue, discussed below)?
Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement? Does she unduly prolong the mediation session to earn a larger hourly fee? Does he act in a way to ensure future referrals from the repeat player?
Does she believe that all human rights-related mediations must result in an agreement consistent with UN guidelines? Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma? Can she mediate with impartiality an age discrimination case if she believes people should retire at age 65?
The UAE Commercial Mediation Law addresses a mediator's relationship to the outcome in several articles, but very generally. As noted above, Article 6 requires the private mediator to maintain "neutrality and independence towards the . . . subject of the dispute." Similarly, Article 7 requires a mediator appointed off a Center's list to "abide by the rules of neutrality and independence towards . . . the matter of dispute." Despite their generality, both these provisions show a great deal of knowledge and experience on the part of the drafters of this law.
Does the mediator brag about a high settlement rate? Does the court-connected program director refer cases to mediators with high settlement rates? Should a party, therefore, be concerned that the mediator views the case as the next notch on his belt? Will he work hard for his settlement rate even if it requires coercive interventions that disfavor one party (a Quadrant 4 issue, discussed below)?
Does he have a vested interest in the outcome because his fee is based on a percentage of the agreed settlement? Does she unduly prolong the mediation session to earn a larger hourly fee? Does he act in a way to ensure future referrals from the repeat player?
Does she believe that all human rights-related mediations must result in an agreement consistent with UN guidelines? Can he mediate with impartiality as to the outcome in an air pollution case if his son suffers from severe asthma? Can she mediate with impartiality an age discrimination case if she believes people should retire at age 65?
The UAE Commercial Mediation Law addresses a mediator's relationship to the outcome in several articles, but very generally. As noted above, Article 6 requires the private mediator to maintain "neutrality and independence towards the . . . subject of the dispute." Similarly, Article 7 requires a mediator appointed off a Center's list to "abide by the rules of neutrality and independence towards . . . the matter of dispute." Despite their generality, both these provisions show a great deal of knowledge and experience on the part of the drafters of this law.
Quadrant 4: Neutrality of the Mediator’s Conduct Towards the Outcome
Firestone also suggests parties should consider whether the prospective mediator can maintain neutral conduct towards the outcome. This post interprets that concern as conduct that undermines party self-determination intentionally or unintentionally. It's the place where mediator impartiality and party self-determination overlap.
Conduct towards the outcome may reflect a mediator’s belief that he knows more than the parties about the law, their dispute, or other factors, and so he should play a role in its substantive resolution. Conduct towards the outcome may also reflect a lack of mediation skill or an over-reliance on the skills the mediator has developed in his profession-of-origin. For instance, does the mediator use coercion, intimidation, or other heavy-handed tactics? Does she fall back on her lawyerly problem-solving skills of giving legal advice because she lacks the skills to adopt a less coercive approach? Does he or she truly respect party-self determination? Does the mediator engage in interventions or processes inconsistent with the definition of mediation? Does she add terms to the settlement agreement on which the parties have not agreed?
As noted in my earlier post, the UAE Commercial Mediation Law raises some red flags in connection with a mediator's conduct towards the outcome.
Article 10 provides:
May take any actions deemed appropriate?
As I noted in an earlier post, clearly, this provision raises issues touching on the core values of mediation. First, some interventions by a mediator can undermine his or her neutrality. Second, some interventions, as I discussed here, and here can undermine party self-determination over the outcome. A well-trained mediator will know the professional limits to any intervention, but clearly a mediator must use only interventions that respect the core values of mediation. No room exists for coercion, deception, fraud, misinformation, or threats of any kind. This list only outlines the outside limits on inappropriate actions that can undermine mediator impartiality and party self-determination.
Of lesser concern, 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. A mediator can abuse this opportunity, especially unskillful mediators.
I note that a mediator in the UAE 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 mediator's neutrality, as perceived by the parties.
Conduct towards the outcome may reflect a mediator’s belief that he knows more than the parties about the law, their dispute, or other factors, and so he should play a role in its substantive resolution. Conduct towards the outcome may also reflect a lack of mediation skill or an over-reliance on the skills the mediator has developed in his profession-of-origin. For instance, does the mediator use coercion, intimidation, or other heavy-handed tactics? Does she fall back on her lawyerly problem-solving skills of giving legal advice because she lacks the skills to adopt a less coercive approach? Does he or she truly respect party-self determination? Does the mediator engage in interventions or processes inconsistent with the definition of mediation? Does she add terms to the settlement agreement on which the parties have not agreed?
As noted in my earlier post, the UAE Commercial Mediation Law raises some red flags in connection with a mediator's conduct towards the outcome.
Article 10 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.
May take any actions deemed appropriate?
As I noted in an earlier post, clearly, this provision raises issues touching on the core values of mediation. First, some interventions by a mediator can undermine his or her neutrality. Second, some interventions, as I discussed here, and here can undermine party self-determination over the outcome. A well-trained mediator will know the professional limits to any intervention, but clearly a mediator must use only interventions that respect the core values of mediation. No room exists for coercion, deception, fraud, misinformation, or threats of any kind. This list only outlines the outside limits on inappropriate actions that can undermine mediator impartiality and party self-determination.
Of lesser concern, 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. A mediator can abuse this opportunity, especially unskillful mediators.
I note that a mediator in the UAE 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 mediator's neutrality, as perceived by the parties.
Conclusion
Taken together, the UAE Commercial Mediation Law is far more comprehensive on the issue of mediator neutrality than the Qatari Mediation Law discussed here. But, like any law, room for improvement exists.
Here is the Firestone grid, with my updates and interpretation.
Next up? The articles of the UAE Commercial Mediation Law governing confidentiality in mediation.
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.
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Here is the Firestone grid, with my updates and interpretation.
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