Mediation in the United Arab Emirates

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article surveys mediation in the United Arab Emirates, situating it within the long tradition of sulh, or amicable settlement, whose roots reach back to pre Islamic Arabia. The author emphasises party autonomy as mediation’s distinguishing feature: where a judge or arbitral tribunal weighs evidence and applies law, mediating parties set their own terms and remain answerable for them, retaining control over time, cost and outcome while preserving commercial and social relationships that years of litigation would damage. The paper describes the institutional framework, including the federal establishment of mediation centres handling civil and commercial disputes up to AED 500,000 and of undetermined value, with settlements that are final and not subject to appeal, and Dubai Law No. 16 of 2009 creating an authority for the amicable settlement of civil and commercial disputes, under which agreements approved by the competent judge become binding. The author also addresses gender equality, noting the partnership between the UAE Ministry of Defence, the General Women’s Union and UN Women in support of Arab women peacekeepers, and observes that implementation remains difficult amid prolonged crises. The article closes by identifying the limits of mediation, its dependence on genuine willingness, procedural weaknesses, unsuitability where a legal ruling or injunctive relief is required, and the absence of a specific enforcement regime for private mediation settlements, and by pointing to the UAE’s international mediation engagement, including its diplomatic role in the Eritrea and Ethiopia peace agreement.

KEYWORDS *

Sulh, amicable settlement, United Arab Emirates, Dubai, mediation centres, party autonomy, commercial disputes, enforcement, gender equality, women in peacebuilding, Middle East, international mediation

INTRODUCTION

Sulh or amicable settlement has a long history within Arab and Islamic societies and have their roots in pre-Islamic Arabia. Party autonomy is one of the most attractive elements of the mediation process. In the case of litigation/arbitration, the judge/tribunal considers the available evidence and applies the applicable legislation to a dispute, whereas during mediation the parties themselves put forth their terms of the settlement and they remain responsible and answerable for such terms.

MAIN CORPUS

In a promising commercial and trading hub like the UAE, mediation as an alternative avenue to traditional court litigation has proven to be an effective means of resolving disputes and attaining the most optimum results. People wish to maintain enduring commercial, social and economic relationships with their business partners. Years of legal disputing might ruin their relationship if the court as the mode of dispute resolution has opted. Thus, the disputants prepare themselves to cease their stalemate by way of the amicable settlement. Mediation enables the parties to remain in control of time, cost and outcome. It evokes a feeling that they haven’t compromised much to achieve a “win-win” outcome of the dispute, as their interests are valued to its brim. Mediations are sometimes attempted while the cases are pending in court. This is in the best interest of achieving a speedy resolution to an ongoing case. It has been noticed that often the chosen mediators are legal counsels. This is due to their awareness of the legal rights and obligations concerning the dispute. The parties are thereby benefited from the legal counsels’ skills in drafting the settlement agreement. The courts in the UAE give the same weightage as of judge’s order for the settlement agreement if the benefited party opts to file it in the court.

In the UAE, by virtue of federal law, mediation centers were established wherein civil/commercial disputes not exceeding AED 500,000 and of non-estimated value are referred. The significant feature of the law is that the settlement arrived in the mediation process is final and that it cannot be appealed.

IN DUBAI

The ruler of Dubai launched the authority for amicable settlement of civil and commercial disputes in Dubai by virtue of Dubai Law No. 16 of 2009. This progression describes the UAE government’s desire to encourage and increase the utilization of the mediation process to resolve disputes. The settlement reached by the parties shall be recorded in the form of a reconciliation agreement as approved by the competent judge and shall be binding on the parties.

GENDER EQUALITY

It is a fundamental principle that when peace negotiations include women, peace lasts longer. The partnership between the UAE Ministry of Defence, the General Women’s Union, and UN Women to support Arab women who are interested in serving as peacekeepers proves that the UAE is working to mainstream gender equality and women’s empowerment in conflict prevention and maintaining international peace and security. Implementation of this program however on the ground remains a challenge due to the prolonged nature of crisis today and women and girls are targeted in the conflict zones of terrorism and extremism.

SUMMARY

CHALLENGES

The most obvious downside with mediation is that it is unlikely to work unless the parties genuinely desire to reach an agreement. The parties cannot be compelled to mediate unlike in litigation/arbitration. With the outcome of mediation, the mediator’s role ends as the mediator is not there to judge or impose a decision. Another downside of mediation in the UAE is weak procedural steps. Critic debates that definite procedures need to be followed in a manner that will conform to some basic standards and strategies for dispute resolution. It is also argued that mediation is another tier of litigation and a waste of time and money when no binding decision is reached as the parties subsequently litigate. Mediation is not adequate when a legal decision is required where an area of law is unclear or untested. Further, the remedies such as injunction, mandatory and prohibitory orders cannot be achieved or agreed upon by mediation. There is no specific federal or local legislation in the UAE for executing the mediation result arising out of private mediation. Hence, the parties need to rely on the traditional court system in the UAE, for enforcement of the mediation settlement agreements.

CONCLUSION

Beyond the domestic legislations, as part of a wide-ranging methodology to prevent and settle disputes peacefully, the UAE has called on the international community to build up mediation efforts. At the UN Security Council Open Debate, the UAE delegate to the UN emphasized the prominence of mediation and peaceful resolution of conflicts. The Middle East is notable for long-term conflict in multiple countries viz Libya, Palestine, Syria, and Yemen. Hence, this region could benefit from greater mediation efforts. The success of the peace agreement between Eritrea and Ethiopia is a triumphant instance of the UAE’s diplomatic efforts to establish peace.

POTENTIAL SOLUTION *

Most of the difficulties the author identifies converge on a single question: what happens to a mediated agreement once the parties leave the room. A settlement reached before a court annexed centre becomes as strong as a judgment, while an identical agreement reached in private mediation is merely a contract, enforceable only by starting the very litigation the parties sought to avoid. This asymmetry, more than any doubt about mediation’s merits, is what keeps commercial parties in a jurisdiction like the UAE returning to the courts.

The remedy is straightforward in principle and already available in international practice. A dedicated enforcement route for mediated settlements, allowing an agreement reached in private mediation to be registered with a competent court or authority and executed directly, subject only to narrow safeguards such as capacity, legality and the absence of duress, would place private and court annexed mediation on equal footing. As a leading commercial hub, the UAE is well positioned to extend this to cross border commerce as well, since the Singapore Convention on Mediation of 2019 provides precisely such a mechanism for international commercial settlements, and its adoption would give parties in the region the same confidence in a mediated agreement that the New York Convention long ago gave them in an arbitral award.

Enforcement alone, however, does not answer the criticism of weak procedure. Standardised rules of process, covering appointment and disclosure by the mediator, confidentiality, the conduct of joint and private sessions, timeframes and termination, together with accreditation and training requirements for mediators, would transform mediation from a matter of individual practitioner style into a predictable service. This matters particularly where legal counsel serve as mediators: their drafting skill is a genuine asset, but the role of adviser and the role of neutral must be kept visibly distinct, and parties should be encouraged to retain their own separate legal advice.

Two further refinements would strengthen the framework. Mediation and adjudication need not be alternatives: parties can be permitted to interrupt proceedings for mediation while preserving interim relief, so that injunctive protection remains available and the objection that mediation cannot deliver such remedies loses its force. And where the law is genuinely unsettled or a public ruling is needed, mediation should be openly identified as the wrong instrument, since a process honest about its limits is trusted more within them.

Finally, the article’s observation on gender deserves to be carried into commercial practice as well as peacekeeping. Deliberately building and publishing a roster of qualified women mediators, and ensuring balanced panels in institutional appointments, converts a stated commitment into a visible one, and gives parties across the region the fuller pool of neutrals that expanding mediation will require.

* Added by the WMO Editorial Team

REFERENCES *

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 1958.

Federal Law No. 17 of 2016 concerning the Establishment of Committees for Amicable Settlement of Disputes, United Arab Emirates, as amended.

Federal Law No. 6 of 2021 on Mediation for the Settlement of Civil and Commercial Disputes, United Arab Emirates.

Dubai Law No. 16 of 2009 establishing the Centre for Amicable Settlement of Disputes, Government of Dubai.

Federal Law No. 11 of 1992 (Civil Procedure Code), United Arab Emirates, and its Executive Regulations on settlement and enforcement.

United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention on Mediation), 2019.

UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018.

United Nations Security Council Resolution 1325 (2000) on Women, Peace and Security, and subsequent resolutions in that agenda.

UN Women and Government of the United Arab Emirates, Khawla bint Al Azwar Military School programme for women peacekeepers, Abu Dhabi.

Othman, A. (2007). And Amicable Settlement Is Best: Sulh and Dispute Resolution in Islamic Law. Arab Law Quarterly, 21(1), 64 to 90.

Agreement on Peace, Friendship and Comprehensive Cooperation between the Federal Democratic Republic of Ethiopia and the State of Eritrea, Jeddah, 16 September 2018.