Mediation Centre Law – context
The Centre was originally established in 2009 with a mandate to consider disputes for which a settlement order was made by the Chief of Courts, regardless of their value or nature. The original powers and duties of the Centre included but were not limited to:
- amicable settlement of disputes presented to the Centre under the supervision of a judge of the Dubai Court of First Instance assigned to the matter (Competent Judge);
- amicable settlement of disputes within a maximum period of one month, which period could be extended for another month or further if so decided by the Competent Judge; and
- employment of experts and specialists as needed.
In addition, if the parties reconciled, their settlement agreement would be approved by the Competent Judge and have the power of an executive instrument, but in the absence of reconciliation, the Centre would refer the case back to the courts of Dubai.
Whilst the framework for the Centre has existed since 2009, detailed procedures for the Centre’s functions were lacking.
The Mediation Centre Law – what has changed?
(a) Purpose
The Mediation Centre Law expressly seeks to:
- promote the culture of amicable settlement through conciliation;
- encourage the adoption of alternative dispute resolution methods;
- enhance the continuity of contractual relations;
- expedite the adjudication of disputes; and
- provide a work environment that ensures confidentiality of dispute settlement procedures.
(b) Competency of the Centre
Previously, only disputes referred to the Centre by a Competent Judge could be adjudicated. However, in line with article 3 of the Mediation Law, parties are now free to bring disputes to the Centre by mutual agreement.
The Centre has wide jurisdiction, though some specific matters fall outside its competence. In this regard, it cannot review the following applications:
- Temporary orders and requests and urgent lawsuits
- Disputes where the government is a party
- Disputes that fall outside the jurisdiction of the courts
- Disputes that cannot be conciliated under applicable legislation
- Disputes related to personal status
- Lawsuits registered with the courts prior to the implementation of the Mediation Centre Law
(c) Outsourcing the Centre’s functions
A new provision under articles 7 and 8 allows the president of the Dubai Court of First Instance to outsource the Centre’s functions on conciliation to government agencies or authorised entities, who shall then resolve the disputes amicably.
Any conciliators or mediators from such other agencies will be bound by the terms and provisions of the Mediation Centre Law as if they were acting under the auspices of the Centre.
Any such referral to a government agency or entity shall be limited to disputes that arise between companies, private institutions and individuals, related to the competencies established by that government agency or private entity.
In order to ensure that any referral is appropriate, article 10 mandates the establishment of a Conciliators Affairs Committee. The members of this committee shall be empowered to decide whether a government agency or private entity is competent to adjudicate the dispute being referred by the Centre.
This opens the door for private entities to establish mediation centres, which would have official recognition from the courts.
(d) Register
Article 11 provides for the registration of conciliators from among government agency employees and private conciliators. The committee is empowered to decide whether an individual is competent to serve as a conciliator on the register.
Under article 12, a person applying for registration on the register must:
- be a citizen of the UAE. However, the managing director of the Dubai Courts (Director) may exempt non-nationals from this condition provided they have a minimum of four years’ experience in the UAE in the field of conciliation or in any of the areas related to the settlement of disputes;
- have full civic capacity, have exhibited good conduct, enjoy a good reputation and have not been convicted of an offence violating the values of honour and trust, unless they have been rehabilitated or pardoned;
- have a bachelor’s degree in law or Sharia and law, or have any other specialised certificate (or its equivalent), from a university or other institute recognised in the UAE;
- be known for their integrity, impartiality, honesty and objectivity;
- successfully pass the courses, tests and interviews determined by the Conciliators Affairs Committee;
- pay the prescribed fee for registration; and
- fulfil any other conditions determined by the Director.
(e) Conciliation procedures
In addition to the conciliation rules and procedures that the conciliator deems appropriate, the conciliator may manage the dispute using modern technology (article 21(A)). Previously, a dispute had to be settled in one month and any extensions longer than an additional month could only be approved by the Competent Judge. Under article 21(E), the parties to the dispute are empowered to agree on a different period of extension if conciliation takes longer than 30 days.
(f) Conciliation agreement
Article 23 fleshes out the conditions for a binding conciliation agreement. In particular:
- it must include the names of each party and their legal representatives, as well as the party’s nationality and place of residence or work;
- it may take any form of final and binding agreement between the parties, provided the parties’ consent is obtained and such consent does not violate public order or morals; and
- once the agreement is concluded, the parties may not resubmit the dispute to the courts.
(g) Confidentiality
Article 25 guarantees that conciliation sessions shall be confidential, and any information, documents or papers that are viewed, submitted or exchanged during those sessions may not be disclosed to third parties unless:
- the parties consent to the disclosure; or
- disclosure is required by applicable laws or by order of a competent judicial authority; or
- disclosure is required by the terms of the conciliation agreement; or
- the documents, information or papers relate to a crime or affect public order and morals in the UAE.
(h) Suspension of limitation periods
Article 29 states that the legal periods for not hearing the case, as well as the limitation periods stipulated in applicable legislation, shall be suspended from the date of registration of the dispute in the electronic system prepared and maintained by the Centre. The suspension shall be lifted once the conciliation procedures have ended and the conciliator fulfils no further role, or if the parties agree to refer the dispute to the competent courts.
(i) Enforcement mechanism
Articles 32-36 contain controls on actions and powers of private conciliators/mediators as well as employees of the Centre. In particular:
- Private conciliators/mediators may be subject to inspections in accordance with procedures to be determined by the Director.
- A Disciplinary Committee will be formed by the Director to investigate alleged breaches and impose disciplinary measures; however sanctions may only be imposed after the committee conducts a written investigation and receives statements and defences from the private conciliator/mediator in question. Its deliberations are confidential.
- Private conciliators/mediators may file grievances against the decisions of the committee.
- Conciliators who are employees of the Centre may also be subject to disciplinary sanctions for violations of the Mediation Law (e.g., warnings, suspensions from the Register for up to two years, or being struck off the Register).
Moving forward
The Mediation Centre Law is a welcome addition to the UAE’s mediation framework. It aligns with the rules and procedures in the recently issued Mediation Law and provides much needed clarity as to the intended role of the Centre. In summary:
- The Centre’s registration process will provide quality control to ensure that disputing parties have access to appropriately qualified and experienced conciliators/mediators.
- Consistent with article 7 of the Mediation Law, the Centre will have the power to register non-nationals as conciliators/mediators with the Centre, which will open the UAE’s doors to talented practitioners in the region.
- Consistent with article 14 of the Mediation Law, conciliations are confidential, and therefore, parties can be confident that admissions or concessions will not be used against them should the relevant matter fail to settle amicably.
- Consistent with article 25 of the Mediation Law, private centres can offer mediation services, which will provide a broader offering of services and encourage competition for clientele, fostering excellence in service provision.
- The establishment of the Conciliators Affairs Committee should help ensure that the Centre and private mediation/conciliation centres act within the limits of their jurisdiction under the Mediation Centre Law.
- In the event of violations, the disciplinary measures to which private conciliators/mediators and Centre employees are subject appear to be well-intentioned in their aim to safeguard the integrity of the mediation process.
The Mediation Centre Law is a welcome development that will strengthen mediation as an alternative dispute resolution mechanism in the region.
Client Alert 2021-278
