Paul Rose – BSc Hons FRICS FCI Arb Chartered Arbitrator, IMI accredited Mediator, Panel and Advisory Board Member.
Paul Rose delivered this speech to the London Branch of the Chartered Institute of Arbitrators alongside Professor Dr Nayla Comair-Obeid, the president and Kim Franklin QC on June 20th 2017.
“I wonder if the expression “initiatives” might give the impression that there is no mediation in the Middle East. If that is your impression, then I hasten to dispel it; for mediation in the Middle East has been in use for centuries, whereas the same cannot be said for the UK or America where, by comparison, it is in its infancy.
There are several words in Arabic associated with mediation; and to explain what is happening now in the Middle East it might be as well for me to give an historical background and explanation of these words.
Mediation is founded on Sulh or Solh which is the Arabic word meaning peace as opposed to war. It is derived from the same root as the Arabic word Musalaha meaning reconciliation. In Islamic Law, according to George Emile Irani in his book “Apologies and Reconciliation”, Sulh means an amicable settlement. Indeed, in Muslim political thought in the early days of the Islamic Empire, Sulh was viewed in the sense of treaty or armistice.
Today, Sulh – peace – is substituted within the traditional greeting Salaam. One Islamic interpretation is that individual personal peace is attained by utterly submitting to Allah, hence the greeting As-Salaamu alaykum.
Sulh forms a crucial part of lslamic Arbitration but it also applies to Mediation. As the introduction to a research paper written for the New York Law School by Aseel Al-Ramahi of the LSE Law Department reveals, Sulh, or amicable settlement has a long history within Arab and Islamic societies and have their roots in pre-Islamic Arabia. Sulh is the preferred result and process in any form of dispute resolution. Al-Ramahi’s introduction also reveals the fundamental difference between East and Western cultures in dispute resolution.
This difference helps to explain some of the reasons for an historic reluctance to enter mediation in individual cases; but which is now changing. Another is embedded in the following quotation of the Honourable Eliot Richardson, “To pursue a lawsuit is to gamble on victory. To elect conciliation is to seek fairness. Victories undermine relationships. Fairness strengthens them.” It is the word “relationships” that is key.
In tribal and Islamic cultures, the overreaching objective in conflict settlement is collectivity. That is not the case in western culture. The Eastern culture has an intrinsic community and a collective attitude to conflict whereas the Western culture is individually minded and procedurally orientated. The distinctions between both relate to the perceptions of conflict, the formation of procedure, and the status and function of the third party intervener.
The initiatives on which I shall speak, seek to harmonise those cultural differences and use them in a structured manner to assist in dispute resolution and improve business growth in the region. So it may help to understand these differences and view them within the context of a modern business centre.
In the west, business relations are governed by general principles of law and contract in a world apart from home or family. In western legal systems, a valid contract requires offer, acceptance consideration, capacity to contract, the absence of vitiating factors; and the intention to create a legal relationship.
In the Arab world, business relations are not matters only governed by law, they are a segment of the whole web of friendship, kinship, obligation and personal relations that support a way of life. To quote Al-Ramahi, due process of law, sanctity of contract and free enterprise, based on purely individual rights, do not form the trinity, so sacredly held in western perspectives. Westerners respect the primacy of law. Arabic speaking peoples respect the primacy of interpersonal relationships. It is the difference between the western view of relationships that are legal and the Arabic perspective which is that contracts are relational.
In their work in 2005, Al-Krenawi and Graham identify Arabic cultures as more “high context” than low; and Western cultures as more “low context” than high. “High context” culture emphasises the collective over the individual, with a slower rate of societal change and a higher sense of social stability. In contrast, the “Low context” culture is described as more autonomous.
How this affects dispute resolution in the UAE is that it is guided by an overarching principle of collective interests of the family, the tribe, the community, and the country. In other words, it is collectivism. It is this sense of community that gave rise to the use of Majlis, the Arabic term meaning a place of sitting, but used in the context of council.
Islamic and tribal history places collective interest as the highest principle in a hierarchy of values in dispute resolution proceedings. Indeed, the maintenance of relationships and the restoration of harmony is a duty on all members of the group as well as the third – party intervener, whether he (or she) be a quadi (Judge) or hakam (arbitrator) or conciliator. That duty is thus imposed by culture on a mediator regardless of training.
Collective interests and Sulh represent the core of any dispute resolution system in Islam, in order to maintain the ties of family, brotherhood and community. Without diverging too far, the Middle East is influenced by the textual language and interpretation of both the Koran and the Sunnah. For those unfamiliar with the expression, Sunnah or in the plural, Sunan, is the verbally transmitted record of the teachings deeds and sayings including silent permissions or disapprovals of the prophet Muhammad as well as various reports about his companions. Thus Islam should not be regarded simply as the religion of the UAE; but rather as the life of a faithful Moslem in the UAE. Islam includes a balanced social organisation and codes found in Sharia Law. There are two fundamentals of Sharia Law and Mediation is contained within the second part which governs civil transactions and state affairs.
The duty to reconcile is imposed by Sharia Law on all Muslims and Sulh is a settlement grounded upon compromise negotiated by the disputants or with the help of a third party. Thus, mediating sulh is hardly an initiative. It is not new. It pre-dates Islam and the Koran.
Sulh is to be found within the framework of tribal Arab society wherein the chieftains or Sheikhs and healers (kubban) and influential noblemen played their part principally as arbiters in all disputes whether intra or inter- tribal. The Sheikhs would sit in a Majlis i.e. Council, to hear the dispute.
Indeed, before Islam, the sons of the tribes were inculcated to refer to their leaders to help dispute resolution. Within a family unit, a youngster would refer to his father to resolve problems between him or his family relations. Thus, the father was his wasta, or mediator, between him and his relatives.
Here, you can perceive the other cultural difference in that the wasta is described here in the context of arbitrator. However, wasta is not an hakam. Yet, that is sometimes the context in which disputants will refer their disputes. Where a dispute was complex, referral would go to the sheikh for dealing with the members of the tribe. Today that still takes place. Wasta means literally the middle and is associated with the word Yatawasset, which is to steer parties toward a middle point or compromise. Thus, wasta refers not only to the act itself but also the person who mediates or intercedes, according to Robert B Cunningham and Yasin K. Sarayrah in their book – “Wasta: The Hidden Force in Middle Eastern Society.” (Praeger 1993).
Against this deep and long historical background, the government over more recent years has produced a variety of initiatives; although at first glance, they have been limited. Nevertheless, mediation is taken seriously, remembering the background of the second part of Sharia Law. Unlike western legal systems, where mediation is consensual and voluntary, in the UAE we find compulsory mediation.
With thanks to Clare Raven, writing as long ago as 2013, but still relevant today, I summarise the more frequently used types of mediation in the UAE with a particular focus on Dubai.
Compulsory mediation is used in the Dubai International Financial Centre Courts. These are an English language common law judiciary based in the Dubai International Financial Centre (“DIFC”) with jurisdiction governing civil and commercial disputes. They became operational in 2006. The DIFC have their own Court Rules (Rules of the Dubai International Financial Centre Courts or RDC) which, heavily influenced by Islamic law and custom, encourage Sulh and Musalaha – reconciliation.
RDC 27.1 specifically encourages the parties to consider reconciliation. RDC 27.2 sets out the benefits of such dispute resolution including but not restricted to savings in costs, delays of litigation, the preservation of existing commercial relationships and market reputation; presenting a wider range of solutions than those offered by litigation; and the more efficient use of judicial resources. The Court case manager has the ability to order the parties to engage in reconciliation (RDC 26.44) and the RDC also confer on the judiciary the power to award costs in mediation. The last two are unheard of in the UK. However, coming closer to the UK model the power to award costs can include an adverse costs order if a party fails to take steps to resolve their dispute by justice by reconciliation (RDC 27.10). Fairly recent anecdotal evidence from DIFC Court users suggests a good success rate.
The DIFC also has a Small Claims Tribunal for which the RDC provides a consultation at Court to allow the parties an attempt at settlement.
In Dubai, any claims not exceeding AED 50,000 (£10,760 approx.); or claims concerning commonly owned property; or claims where any Bank is a party, must first be referred to the Dubai Centre for Settlement of Amicable Disputes. ADR takes the form of a hearing following which the Centre will either issue a notice of settlement or refer the case to the relevant Court.
Employment disputes involving all employees outside of the free zone must have their employment contracts registered with the Ministry of Labour. With an employment dispute, either party may initiate a claim by first filing a complaint with the Ministry of labour; which then requires the parties to undertake conciliation consisting of three meetings between the parties without representatives and a Ministry of Labour inspector. In practice, usually one meeting takes place, following which, the inspector concludes that settlement is unlikely. This has a high success rate. Similar processes are used by the Dubai Free Zone authorities.
There are also some Judges at the Dubai Courts who will order further conciliation once a case has been filed, comprising of a meeting in Chambers with one or three Judges, together with the parties and their representatives. If the case does not settle at that meeting then the case proceeds usually before the same Judge or panel present at that meeting.
There is also the 1999 initiative under Federal Law No 26 regarding the Establishment of Conciliation and Reconciliation Committees at the Federal Courts. This law has been amended. The legislation set up conciliation committees in all of the Federal Courts in Sharjah, Ajman, Umm Al Quwain and Fujairah. The Abu Dhabi Courts still apply Law No 26 having opted out of the Federal court system in 2007. These Conciliation and Reconciliation Committees which form part of the Courts are responsible for facilitating settlements of civil, commercial and labour disputes. To support these Committees, the Courts will not issue a case if the parties have not first submitted the dispute to the relevant Conciliation and Reconciliation Committee as part of their pre-action protocol. Parties will be asked to attend on seven days’ notice and the law provides that the Committee and the parties have thirty days to achieve a settlement. If a settlement is reached, it is embodied in a Court document and is treated as a writ of execution so that in the event of unilateral default, the settlement can be directly enforced without first obtaining a judgment – unlike the UK where a judgment for enforcement on a written agreement must first be obtained.
For compIeteness, there are a number of other committees with the word mediation in their title; but they are a misnomer. They do not provide mediation in the traditional reconciliation sense of the word since, as an example, in Sharjah, the Rental Mediation Committee has exclusive jurisdiction to consider tenancy disputes applying Sharjah Law; without any right to bring a claim to the Court and with no appeal from the Committee’s decision. It thus sits as a Tribunal.
It is in the area of voluntary mediation where the more recent initiatives lie. At the end of 2010 the Dubai Land Department set up an investor developer mediation committee with six members to help parties resolve their property disputes. A complaint is first lodged with the Land Department Legal Affairs Department seeking cancellation of a sale and purchase agreement the Legal Affairs Department will try to mediate. However, departing from the principle of a third party neutral ultimately it may decide the issue. It may even act on its own decision and register or de-register ownership of a property. A right of appeal does exist either to the Courts or arbitration; but such a challenge is frought with difficulties.
It is now more common for parties to a contract to agree a dispute resolution clause in the contract containing a tiered mechanism whereby mediation must be adopted before the commencement of arbitration or Court proceedings. Furthermore, the Dubai Chamber of Commerce offers mediation services.
Private appointments of mediators do occur but not frequently. In the past, members of the Royal Family were known to have mediated between members of high profile families in dispute. Although little heard of this still happens today.
However private mediation is hardly talked about. There are a number of reason for this. First of all the complex hierarchy of relationships dictates a need for finality and decision – usually legal – that is not always possible from mediation. The second is the collective need for privacy to preserve reputations. The third is that the present civil law judicial system lacks certain fundamentals within procedure usually found in common law legal systems, which do not actively encourage the use of mediation.
By 2013, the Courts were becoming increasingly loaded with cases because cases in the UAE can run through all three tiers of Court. The case load with consequential delays in proceedings invited a few lawyers like Clare Raven to comment that parties might welcome a genuine opportunity to mediate to avoid expense and delay. From the perspective of compulsory mediation, the question was put whether the Courts could or should take more of a lead role requiring mediation.
With the question remaining, as yet, unanswered; and despite the fundamental religious commitment to Sulh by litigants, the modern Dubai Courts became increasingly bogged down in cases to the extent that in 2016, His Highness Sheikh Saeed bin Rashid Al – Maktoum, through his private office, observed that business growth was being hampered by disputes. Mindful of the original principle of Sulh; and noting that business dispute resolution was impeded by limited access to traditional Majlis, His Highness set up the Dubai Mediation Centre to offer both traditional Middle Eastern alongside western style mediation. This bridging of cultures represents an innovative approach to the objective of settling disputes in far greater numbers, freeing up the Courts and encouraging business growth in the UAE and Dubai.
The Centre was launched in May 2016. In order to provide the choice of cultures the Centre operates a list of trained and qualified mediators from both the region and Europe; and a list of non – qualified mediators who are experienced and trusted members of the Dubai business community. Any comment on the inclusion of unqualified mediators to a panel offering such services, belies a lacuna in knowledge of local business custom, the history and ethos behind Sulh; indeed the cultural difference between Arabic and Western cultures.
Arabic business culture, as stated, is founded not only on law and contract but also on the web of friendship, kinship obligations and personal relations that underpin the way of life. It is relationship based. Trust plays a key role not only in the relationship but also in the choice of mediator. Because of that need, mediators are selected not simply because of their training and experience – although that is hugely respected – but also because of their standing in the business community and trust with which they are held. The Dubai Mediation Centre supports such trusted mediators providing them with technical support from other experienced qualified mediators. This is a new initiative which the Dubai Chamber of Commerce does not offer.
Another initiative, originally observed in 2013 and happening now, was the suggestion that the Courts took more of a lead role in ordering mediation. A serving DIFC Emirati Judge was appointed in May to the Advisory Board of the Dubai Mediation Centre. He is a strong proponent of such orders. That influence is intended to extend to other Judges in the Courts.
A very recent initiative is the proposal to draft into the legal code certain common law procedure to act as further encouragement for mediation. Presently the perception is that the biggest barrier to cases either being temporarily suspended in order to mediate; or being referred immediately to mediation with a prospect of success, is the absence of the concept of “without prejudice” in pre-trial proceedings. The intention is to order that “without prejudice” be applied to mediation cases only. The hope is to provide the parties with better prospects of discussing settlement without fear of the revelation of any content to the Judge, to a party’s detriment in subsequent proceedings.
Another recent initiative which has already commenced, is the reinforcement of Sulh among lawyers with seminars being delivered by the Dubai Mediation Centre on mediation awareness and mediation advocacy training. However, following research, the priority is the introduction of a “without prejudice” rule, so as to remove the fear of release of offers to settle made in negotiations. If this becomes possible; and once this takes hold, then by merging the Conciliation and Reconciliation Committee format of embodying a settlement into a Court document, the Courts might begin to see their case – loads diminish.
How this will work in a society with a High context culture which emphasises the collective over the individual with a slower rate of societal change and a higher sense of social stability, remains to be seen. Some observers might view the slower rate of societal change as a barrier to implementing mediation as alternative dispute resolution. However, there is ample evidence in Dubai of giant steps that have been taken to bridge the different cultures, in order to create a vibrant and positive business environment. It is in the taking of innovative steps where Emiratis excel. ”
If the reader requires further information on mediators able to deal with difficult disputes, please contact the Administration Team at The Dubai Mediation Centre run by Natalie Dixon. She will discuss such matters as fees, timetable and suggest suitable mediators and arrange a suitable appointment.
Paul Rose FRICS DipArb FCIArb is a Chartered Surveyor, a Chartered Arbitrator and an IMI certified Mediator. He is a member of ArbDB Chambers. a panel member of the Dubai Mediation Centre, a member of the Presidents’ panel of Arbitrators of both the Chartered Institute of Arbitrators and RICS; and a panel member of both the Arbitration and Mediation panels of the Kuala Lumpur Regional Arbitration Centre. He specialises in property disputes.