With the launch of the Mediation Rules by the Dubai International Arbitration Centre effective from 01 October 2023, the UAE has introduced a significant piece of legislation at the federal level, consolidating Mediation and Conciliation specifically in Civil and Commercial Disputes viz. Federal Decree Law No. 40 of 2023 (the “Decree-Law”) which will come into effect on 29 December 2023, thereby repealing Federal Law No. 6 of 2021 on Mediation in Civil and Commercial Disputes which regulated both the judicial and non-judicial Mediation; and Federal Law No. 17 of 2016, as amended by Federal Law No. 5 of 2021, which governs Conciliation and regulates the establishment of court-annexed Conciliation and Mediation centres for civil and commercial disputes; ushering in a new era for alternative dispute resolution (“ADR”) in the UAE.
By nature, the concept of Mediation and Conciliation is profoundly embedded in Arabic culture and Sharia law, as such, the Decree-Law is a welcome step equally for parties and lawyers alike to progress ADR in the UAE. This move aligns with the UAE’s commitment to signing the Singapore Convention on Mediation, announced in March 2022.
Overview
At the outset, Mediation may be conducted in all civil and commercial disputes capable of settlement without conflicting with the existing laws or the public order and morals prevailing in the UAE, without prejudice to the provisions of the local laws that regulate Mediation. This is in accordance with Article 8 of the Decree-Law, while Article 27 of the Decree-Law states about the exclusive competency of Mediation and Conciliation Centre (the “Centre”) to conciliate civil and commercial disputes (i) whose value does not exceed five million (5,000,000) dirhams; and (ii) between spouses or relatives up to the fourth degree, regardless of their value. The adversaries may agree to resort to the Centre for Conciliation of civil and commercial disputes whose value exceeds five million (5,000,000) dirhams, whether before a case is filed or while it is being heard.
That said, as outlined in Article 28 of the Decree-Law, certain disputes do not fall within the jurisdiction of the Centre viz. (i) urgent and interim orders and cases; (ii) cases to which the government is a party, (iii) rental cases heard before special rental dispute committees, (iv) labor cases, personal status cases; and (vi) any other cases decided to be heard before a Centre, committee or other entity of similar jurisdiction.
Establishment of Centres
The Federal Judicial Council (the “Council”) or the chairman of the local judicial authority may establish one or more Centre(s) for Mediation and Conciliation within the territorial jurisdiction of the first-instance courts; and shall issue pertinent regulations to govern the work and operations of the Centre(s). There is also scope for establishing special Centre(s) for Mediation and branches of foreign Mediation Centre(s); with court or the local judicial authority having supervisory authority on its working and formulating the general policies.
Remote Mediation and Conciliation Platform
Article 4 of the Decree-Law empowers the Mediators and Conciliators to conduct Mediation and Conciliation meetings through electronic means and remote communication, subject to regulations and procedures issued by the Minister of Justice, based on the approval of the Council or the chairman of the local judicial authority.
Mediators and Conciliators Accreditation Processes
The Federal Judicial Inspection Department or the local judicial authority shall maintain a roster for registering Mediators from amongst those registered in the experts’ schedule at the Ministry of Justice or with the local judicial authorities, and the expert Mediators named by a decision of the Council or the chairman of the local judicial authority. Normally they shall be selected from amongst retired members of the judiciary, lawyers registered in the schedules of practicing and non-practicing lawyers. Qualification includes practice of the profession for a period of not less than five (5) years prior to their registration in the non-practicing lawyers’ schedule, and other highly qualified experts and international experts in the legal and business fields, who are known for their expertise, integrity and impartiality. Furthermore, Article 15 of the Decree-Law allows appointment of any natural or legal person, known as Private Mediator, entrusted by the Parties with the task of Mediation to amicably resolve the dispute between them, and not registered on the Mediators’ Lists.
The appointment of Conciliators follows a procedure similar to employment. The Federal Judiciary or the president of the local judicial authority will establish the qualification for the post of a Conciliator. The Conciliators must take a legal oath before assuming their duties, and shall be subject to a specific compensation scheme.
Confidentiality and Non-disclosure
The documents and information submitted or agreements or concessions made by the parties to the disputes submitted for Mediation or Conciliation (the “Parties”), and Mediation and Conciliation procedures as a whole are treated with utmost confidentiality, as envisaged in Article 5 of the Decree-Law; except with the consent of the Parties, or as required by law. Exception further extents to document(s) prepared by the Mediator or the Conciliator and signed by the Parties, including the Settlement reached to resolve the dispute, in whole or in part, between them; and the documents and instruments necessary for its enforcement. Failure by the Mediator or Conciliator to adhere to the confidentiality and non-disclosure obligations stipulated herein, attracts disciplinary actions according to Article 40 of the Decree-Law, without prejudice to the provisions of civil and criminal liability.
Prohibitions on the Mediator and Conciliator
Article 6 of the Decree-Law prohibits the Mediator and Conciliator from acting as an arbitrator or expert in the dispute, or accepting to be an attorney in a dispute against any of the Parties regarding the subject matter of the dispute subject to Mediation or Conciliation, or anything arising from it, even after the completion of the Mediation or Conciliation procedures, unless the Parties agree otherwise. Prohibitions further extents to giving testimony against any of the Parties to the dispute regarding the subject matter of the dispute subject to Mediation or Conciliation, or anything arising therefrom, even after the completion of the Mediation or Conciliation procedures, unless authorized by the concerned party or the Parties agree otherwise, except in cases where the testimony is related to a crime; and in case of acting as a Mediator or Conciliator in a dispute where one of the Parties is a spouse or a relative up to the fourth degree by blood or marriage.
Parallel Mediation and Conciliation Structures
While the previous separate federal laws on Mediation and Conciliation laws are now consolidated, these two parallel structures continue to co-exist under the Decree-Law. Concerning Conciliation, under the court-annexed system, mandatory Conciliation is a prerequisite for specific types of disputes prior to litigation proceedings, and with regards to Mediation, voluntary process that can be initiated either through contractual agreement or by court referral, subject to the Parties mutual consent applies. Here, the chief difference is with the role of the “Mediator” opted by the Parties i.e., while in the Mediation process, the Mediator acts as a facilitator aiding the Parties to arrive at an agreement using the Mediation techniques; however, in the Conciliation process, the Mediator only suggests possible paths to the Parties in order to resolve the dispute. Precisely, both the structures share a common goal, which is amicable resolution of the disputes, whether before, or at the stage of the legal proceedings.
Consensual Mediation
In enforcing the agreement between the Parties made either before or after the occurrence of dispute, with the aim of resorting to Mediation for the Settlement of the dispute (“Mediation Agreement”), the Parties may directly resort to the Center to settle the dispute between them, before filing a lawsuit, as per Article 11 of the Decree-Law. This is Consensual Mediation, the initiation of which interrupts legal and judicial deadlines and only resume upon the completion of the Mediation, unless it is concluded by the Parties signing a Settlement Agreement. The procedures for Consensual Mediation are set out in Article 12 of the Decree-Law. In pursuance of Article 13 of the Decree-Law, the court before which a case is filed regarding a dispute brought before a Mediator in enforcing the Medication Agreement, shall decide suspension of the case until the completion of the Mediation procedures, if the defendant urges therefor before making any request or submission on the merits, unless the court finds that the Mediation Agreement is void or impossible to be enforced. The filing the case shall not however, preclude the initiation or continuation of Consensual Mediation procedures.
Court-Referred Mediation
Court-Referred Mediation occurs by virtue of a referral decision made by the subject-matter court competent to hear the lawsuit (“Competent Court”), at any stage of the case, whether proposed by the court with the Parties’ consent or upon their request. Article 14 (3) stipulates that the referral decisions issued by the Competent Court cannot be appealed by any ordinary or extraordinary means of appeal. Mediation shall end as per Article 21 of the Decree-Law if the Parties (i) sign a Settlement Agreement; (ii) agree to end the Mediation before reaching a Settlement Agreement for any reason; (iii) if one of the Parties informs to the Mediator or the Centre of their wish to participate in or continue Mediation; (iv) if the Mediator notifies the Centre, in writing or electronically, that the Mediation: (a) is futile and that there is no possibility of reaching a resolution to the dispute; (b) has been ended due to the absence of any of the Parties from two consecutive Mediation sessions without excuse; and (v) if the Mediation period expires without being renewed.
In all the above cases, the Mediator shall, upon the end of Mediation, deliver to each party any memoranda and documents they presented, and they may not retain them or copies thereof, and shall send a written or electronic report to the Centre on the result of the Mediation within three (3) working days from the date of ending the Mediation for any reason. The Centre shall notify the Parties and the Competent Court, within three (3) days, of the report and the result of the Mediation.
End of Mediation
Mediation if concluded successfully can end by signing the Settlement Agreement. The ratification process of the Settlement Agreement follows three tiers. i.e., from the Mediator to the Centre and finally to the Court. The Mediator shall submit a report to the Centre along with the Settlement Agreement, which the Centre shall send it to the Court within 3 working days. As a final step, the Court shall ratify the Settlement Agreement and issue a decision to end the dispute, wholly or partially, at a session to be scheduled within seven (7) working days from the date of its receipt of the Settlement Agreement. After its ratification, the agreement shall become a writ of execution and an exequatur shall be affixed thereto upon the request of all Parties or one of them, in light of the terms of the agreement submitted to it, and shall be executed according to the procedures stipulated in the Federal Civil Procedure Law.
That said, the aggrieved party has the rights to object or challenge ratification of the Settlement Agreement, by filing an annulment case before the competent Court. The party seeking annulment shall prove one of the reasons viz. (i) lack of legal capacity of one of the Parties to the Settlement Agreement or diminished capacity at the time of its conclusion, (ii) no Settlement Agreement or if the agreement was void or voidable, or if it was made after the expiry of the Mediation period; or (iii) if one of the Parties was unable to present their defence due to invalid service of process or notification of the Mediation procedures or due to them not having been aware thereof for any other reason beyond their control. Pursuant to Article 24 (2) of the Decree-Law, the judgment issued by the court in the annulment case shall be final and can only be appealed through cassation.
Settlement before the Conciliator
If a settlement is reached between the Parties before the Conciliator, either in whole or in part, this shall be recorded in a minutes signed by the Parties and the Conciliator. These minutes shall be ratified by the Supervising Judge, have the force of a writ of execution and the same binding force of court judgments, and are not subject to appeal by any means of appeal. Upon ratification, the minutes shall be affixed with an exequatur upon the request of all or any of the Parties, free of charge, and shall be executed in accordance with the procedures stipulated in the Federal Civil Procedure Law.
Conclusion
The enactment of the Decree-Law marks a pivotal moment for Mediation and Conciliation in the UAE, offering a unified platform for resolving disputes not just in property and construction disputes but in other Civil and Commercial disputes as well.
Recommendation
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Our record of representing clients in Mediations and ADR procedures throughout the UAE speaks volume. Thus, we recommend for a comprehensive understanding and implementation of the new legislation, consider consulting the seasoned lawyers at Al Dhaheri International Advocates & Legal Consultants, renowned for their expertise in mediation and alternative dispute resolution throughout the UAE.
Written by – Dr. Sherina M. Saji
