Enforceability of Local and International Mediation Outcome - Assignment Example

?Enforceability of Local and International Mediation Outcome I. INTRODUCTION Mediation is an informal way of resolving disputes with the help of a mediator. The mediator does not decide who is right and who is wrong, he just helps the parties to understand their differences and work out their own solutions to problems. Through mediation an allegation can be resolved in a friendly way and the appellant and the alleged both can get the desired outcome. Mediation is not as lengthy as the normal litigation and it takes less than three months for a case to be resolved by mediation. A normal mediation session takes three hours to complete and is attended by both the parties. Mediation is fair, efficient and does not require lengthy litigation and investigation. II. ROLE OF THE MEDIATOR The role of the mediator differs in four different phases of mediation.1 He generally is a contract facilitator. The different roles of the mediator are mentioned below; A. The pre-mediation phase This is considered as the most important part of the mediation process. In this phase, the mediator can create a strong base for mediation process. He has to see if the case is suitable for mediation or not. Some cases cannot be resolved through mediation like criminal matters2 thus he has to see whether the mediation should proceed or not. The mediator also has to check the flexibility of both the parties as the end result of the mediation will be ‘a contract’3 and thus it has to be assessed whether both the sides have the capacity to enter into a contract or not. The last thing that has to be checked is the representation of both the parties, the mediator has to check that the representatives are representing according to the law and their authority over the party has to be checked, so that it should be in the mediator’s knowledge that what kind of agreement the representatives can sign. B. The first joint session The basic purpose of this stage is to make sure that the parties involved understand the cause of dispute and to analyze the major factors underlying the issue. The mediator performs the following duties in this session: firstly, he has to ensure that both the parties will understand the process of mediation and will act in their good faith; secondly, the mediator engages both the parties in a detailed discussion in which both of them try to understand each other’s point of view and perspective; the third duty, which is being performed by the mediator in this session, is to influence the parties to settle the dispute, to make them reach an agreement and to resolve the dispute; and the last task, that a mediator performs during this session, is to engage both the parties in a thorough discussion regarding the issues which they have agreed upon. During this session the parties discuss past and present agendas, whereas, discussing future issues is optional, even though, the discussion of the future issues is essential for this session as it enables the parties to understand each other’s interests and goals. After this session the mediator and both the parties will be aware of each other’s point of views, goals and interests. Each party will now be able to frame a proposal that will satisfy its interests. In addition to that, it will also be able to put forward an offer that will be acceptable by the other party. The mediator will now help the parties to check the accessibility and practicability of their offers. C. The separate session ( the private session) In this stage the mediator tries to detect and put forth the issues that the parties did not discuss in the last session, to enable the parties to reach realistic options that satisfy the needs and interests of both the parties and to guide the parties to negotiate on these options in the upcoming session. The role played by mediator in this phase includes the following; firstly, the mediator has to ensure both the parties that the private session is strictly confidential and therefore they can discuss the issues and agendas which they did not discuss in the joint session. This will allow the mediator to a better understanding of the causes of disputes and to resolve the disputes efficiently. In addition to this, it will also enable the mediator to reduce the factors that can damage or spoil the process of mediation. Secondly, the mediator encourages each of the parties to put forth as many options to settle the dispute as they can. The mediators also facilitate the parties to discuss their real interests, goals and demands freely in a confidential atmosphere. Thirdly, the mediator discusses each of the listed options with both the parties. This discussion makes it possible for each of the party to frame an offer and a counter offer. This session, therefore, decreases the chances of errors or ambiguity which might lead towards the vitiation of the agreement of mediation. By the end of this session, the mediator reminds each of the parties that he or she (the mediator) will not put forward any options on behalf of any of the parties, instead each of the parties will have to put forward their proposals and offers by themselves as the joint session will be summoned again. D. The second joint session The fundamental objective of this session is to permit the parties to negotiate the proposals that they have framed in their private sessions. The basic task performed in this session is: the parties put forward their proposals and they also have to react to the counter offers that opposing party may makes. They respond either by making a counter offer or by acceptances.4 The role played by mediator in this phase may start at an early stage if he or she has to facilitate the discussions and negotiations between the parties involved otherwise the mediator will sit back and let the parties negotiate by themselves. When the parties have reached an agreement, the mediator would help them to analyze that whether the agreement is realistic or not. The mediator diverts the attention of both the parties towards the factors which, if discussed, will enable the contract to become more reliable and easy to act upon.5 As a result, if the parties are satisfied and happy with the outcome the mediators have to make sure that the parties express their commitment in a written form.6 This is the end of the mediation process, because this process has reached an effective and satisfactory outcome according to the mediator’s point of view. III. ENFORCEABILITY OF MEDIATION OUTCOME As discussed till now, mediation outcome is a contract signed by two parties without any intervention of court or in some cases it is a judgment given by court, as in Australia’s case. However, in countries which follow the shariah law system7 the mediation outcome or the suluh agreement8 is a judgment of court based on mutual agreement. This is a final judgment and it cannot be reviewed and is irrevocable. Despite this fact the parties involved may make appeal to the court and compel the judiciary to reissue the mediation outcome. In a nut shell, the enforceability of mediation outcome depends upon its form and the formality of the outcome. The mediation outcome is not enforceable on its own instead it requires the support of a formal authority such as the judgment of the court. Therefore, in today’s era the use of alternative dispute resolution (ADR) has become common in almost all the fields. One can see the implication of restorative justice9 in almost all the legal systems. The widely spread ADR culture enables the people, even the labor, to settle their disputes effectively by paying attention on their interests rather than on their positional authority.10 This must be kept in regard that outcome reached through mediation process must be based on the interests of all the parties involved otherwise it will not be the best solution and it will lead towards agreement breakdown. IV. ENFORCEABILITY OF MEDIATION OUTCOME IN UAE In the past, people preferred litigation over mediation in the United Arab Emirates. Mediation was considered really expensive and people were very reluctant to use it as the enforcement of mediation outcome was very uncertain. However, after the boom of 2004 and 2008, the increase in the transactions (buying and selling of off plan property) in the real estate market led the people towards mediation. The parties started involving mediation contracts in their proposals and there was a prominent increase in mediation. Some general benefits of mediation are: it is always confidential and it can be in English whereas court cases are always in Arabic. Moreover, arbitrators can be appointed to handle critical disputes. During mediation oral evidences are acceptable, whereas, litigation always require written evidences and submissions. Apart from all these benefits, mediation also has certain drawbacks, which are: the mediation process is very costly and for the mediation outcome to be enforceable it must be accepted by the court. This process takes a lot of time and causes delay in the enforceability of mediation outcome. The disputes (commercial), arising in United Arab Emirates, are generally settled by the following organizations; Dubai International Arbitration Centre (DIAC)11, Abu Dhabi Chamber of Commerce & Industry12, DIFC LCIA Arbitration Centre.13 The law which is applied on arbitration in United Arab Emirates is: the Civil Procedures Law of the United Arab Emirates, Federal Law No. (11) Of 1992.14 The provisions of this law which are applicable on arbitration are not based on UNCITRAL Model Law. 15 There are certain legal requirements regarding the enforcement of arbitration agreement. For the arbitration agreement to be enforceable following requirements should be fulfilled: the parties can have a separate arbitration agreement or can add a clause regarding arbitration in the basic agreement as stated in article 203 of CPC; 1. The parties to a contract may generally stipulate in the basic contract or by a supplementary agreement that any dispute arising between them in respect of the performance of a particular contract shall be referred to one or more arbitrators and may also agree to refer certain disputes to arbitration under special conditions.16 In addition to that, the arbitration agreement must be in writing and the major causes and issues regarding the dispute must be presented in the agreement, as the article 203 of CPC says; 2. No agreement for arbitration shall be valid unless evidenced in writing.17 3. The subject of the dispute shall be specified in the terms of reference or during the hearing of the suit even if the arbitrators were authorized to act as amiable compositors; otherwise the arbitration shall be avoid18 The UAE civil procedure code also puts some limits on selection of an arbitrator. According to article 206 of CPC, a person cannot be an arbitrator unless he fulfills the following conditions: 1. An arbitrator may not be a minor, bankrupt, legally incapacitated or deprived of his civil rights due to a criminal offence unless he has been rehabilitated.19 2. If there are more than one arbitrators, the number shall, at all times be odd.20 A person fulfilling the above conditions can act as an arbitrator and once the mediation process starts it is the responsibility of the arbitrator to inform both the parties regarding the time and place of the first session organized to discuss the dispute. And this should be done within 30 days after the acceptance of arbitration, as stated in article 208 of CPC; 1. Within a maximum period of thirty days from the acceptance of his appointment, the arbitrator shall, without the need to comply with the rules provided under this Law in respect of serving of notices, notify the parties to the dispute of the date of the first hearing scheduled for consideration of the dispute and the venue thereof. The arbitrator shall fix a date for the parties to the dispute to submit their documents, memoranda and pleadings.21 The arbitration procedure follows a set of rules. These rules are often decided by the parties involved and are stated in the arbitration agreement. While settling a dispute before DIAC, the DIAC rules are applied on the agreement. But the arbitrator and the parties have to make sure that these rules must fulfill the minimum requirements set by the CPC. If the parties are not able to select the rules then the arbitrator performs this job on their behalf. In order to be enforceable the arbitration or mediation outcome must be approved by the local court. Thus, if a party wants to enforce an arbitration award then it must apply for its ratification through the civil court. For this purpose, the party has to file a suit in the local court. The actual mediation outcome along with all the necessary documents must be submitted in the court. If the mediation process has been rendered outside the United Arab Emirates then it must fulfill the following additional conditions; the mediation outcome must undergo the legislation process which includes notarization22 and cosularization23 of the outcome. In addition to that, the outcome must be authenticated by the ministry of foreign affairs and a judicial authority. Secondly, the mediation award must also be translated whenever required. After the fulfillment of these requirements the application proceeds as a civil claim. Any decision regarding the award cannot be objected as stated in article 217, CPC; The award of the arbitrators may not be contested by any manner of appeal.24 However, according to article 216 of CPC, it is possible to make an appeal on the following grounds; The parties to a dispute may, at the time of consideration of the arbitrator’s award, request the nullification of the same in the following events: a. If the award was issued without, or was based on invalid terms of reference or an agreement which has expired by time prescription, or if the arbitrator has exceeded his limits under the terms of reference.25 b. If the award was issued by arbitrators who were not appointed in accordance with the law, or by only a number of the arbitrators who were not authorized to issue the award in the absence of the others, or if it was based on terms of reference in which the dispute was not specified, or if it was issued by a person who is not competent to act as an arbitrator or by an arbitrator who does not satisfy the legal requirements.26 c. If the award of the arbitrators or the arbitration proceedings become void and such voidness affected the award.27 An appeal against the decision of the court of first instance28 can be made in the court of Appeal29 ant then in court of Cassation.30 UAE is connected with a number of international treaties related to enforcement of arbitration, such as, The New York Convention, Arab Convention on Judicial Co-operation (Riyadh Convention) etc, therefore, the enforcement of international outcome in UAE is subject to a number of treaties and if the treaty is absent then the court considers all the matters and confirmations of case at hand. The international mediation outcome will not be enforced; firstly if it is contradictory to the Islamic Shariah or the UAE constitution and secondly, if it was performed in absentia.31 The enforcement procedure in local courts may take from 6 to 24 weeks and even more if the defending party defies. In addition to that, the rules of summary procedure, as stated in article 212 of CPC, are applied on the enforcement of mediation outcome. V. DIFFICULTIES FACED IN THE ENFORCEMENT OF MEDIATION OUTCOME The plans made through mediation process must be realistic and implementable. Outcomes that do not refer to the basic causes and issues of the dispute and do not create a balance between the interests of both the parties involved are very difficult to be implemented. Such mediation awards can only achieve their goals by directing the parties involved towards violence. Another factor causing difficulty in implementation is that the parties involved and external sources are kept out of the implementation process. These parties should be given full access to the implementation process from planning to enforcement of the mediation outcome. The following steps can facilitate the enforcement of mediation process; firstly, local people, that are the people living in the effected society, should be included in implementation process. This increases the local knowledge and in addition to that the involvement of local ownership increases the stake of society in the implementation. However, the job provided to these people must not go beyond their managerial and administrative capacity. Local business industry can be involved in resolving the dispute between two parties. In addition to that, the use of local media to keep the general public informed and to get their feedback can also play an important role in facilitating the process of mediation outcome. Secondly, the parties and mediator should use statistical data to calculate the sustainability of the outcome. This step enables the mediator and the parties involved to make sure that the outcome generated by the mediation process is realistic and implementable and carries enough evidence with it. In addition to that, they should also have proper basic information about the dispute in order to carry out the process fluently. In order to facilitate the enforcement of outcome, its progress should be monitored throughout the process. The most productive effect of this step is that it focuses on the future impact of the outcome instead of the efforts of the people involved in the process. Thirdly, the involvement of third parties can also facilitate the enforcement of mediation outcomes. But these external forces also have their own goals and interests which may collide with those of the mediator. Apart from that, these parties highly support the enforcement of mediation outcome. Their basic duty is to make sure that both the parties are keeping their promises, fulfilling the conditions and provisions of the agreement and working on each other’s interests as stated in the agreement. When these third parties take guarantee about the fulfillment of the mediation agreement the chances of the enforcement of mediation outcome are highly enhanced and this encourages the parties to take risks that might lead towards the enforcement of sustainable peace. Having external parties as donors to the process also facilitates the enforcement of mediation outcome as funds are needed throughout the implementation process. These external parties also provide legal advisory and counseling services which enhance the enforcement of mediation outcome. Carrying out a mediation process successfully is an art. Enforcement of the mediation awards highly depends upon certain rules and regulations. In order to make sure that the outcome reached through an agreement is feasible and implementable, one should ensure that it follows the guidelines as stated in the legislation of the respective country. In addition to that, other security measures should also be kept in regard to facilitate the mediation process. Every situation that requires mediation is unique and the rules applying on one situation might not apply on the other, therefore, a thorough study of the dispute at hand is necessary to ensure that the mediation outcome is enforceable. In addition to that, many international organizations are also working to facilitate the mediation process and this increases the probability that, if their efforts succeed, the enforceability of local and international mediation outcome will become more successful in the future. Bibliography Table of legislation Civil Procedure Code (CPC) 1992 Secondary Sources Books Tania Sourdin, Alternate Dispute Resolution (3rd, law book co, 2008) 134-167 Peter Condliffe, Conflict Management (A Practical Guide) (2nd, LexisNexis Butterworths, 2002) 185-190 Roger Fisher, William Ury and Bruce Patton, Getting to Yes (Negotiating an agreement without giving in) (2nd, Random House, 1991) 4-8 Amy L. Smith and David R. Smock, Managing a MEDIATION PROCESS (1st, United States Institute of Peace., United States of America 2008) 57-61 Websites Abbas El Siddik, 'Enforceability of the Mediation Outcome' (elaw.murdoch.edu.au 2010) accessed 2nd February 2012 'Mediation'(www.eeoc.gov) accessed 2nd February 2012 'Chambers of Commerce' (www.uae-embassy.ae) accessed 2nd February 2012 Bi-Annual Statistics, 'Dubai Chamber of Commerce & Industry' (www.diac.ae 2010) accessed 3rd February 2012 Vienna International Centre, 'INTERNATIONAL COMMERCIAL ARBITRATION' (faculty.smu.edu) accessed 3rd February 2012 'Arbitration' (www.diac.ae) accessed 4th February 2012 Tai-Heng-Cheng, ‘International Mediation, Arbitration and innovation.' (www.nyls.edu) accessed 4th February 2012 Haider K Afridi and Chatura Randeniya Afridi & Angell, 'United Arab Emirates' (www.practicallaw.com 2011) accessed 4th February 2012 'Arbitration- the legal frame work.' (www.cices.org 2012) accessed 4th February 2012 Read More