Overview of Mediation Processes in the UAE - Assignment Example

?Enforceability of international and local mediation outcome may face difficulties in UAE and many other countries. Discuss the enforceability of mediation outcome and provide recommendations to overcome such difficulties. (Introduction) Overview of Mediation Processes in UAE Like most other countries, the United Arabs Emirates is a country that believes in the fundamental provisions of international and local mediation and as such uses it extensively in most corporate, national and legal cases. Generally, the use of mediation in the United Arab Emirates has been identified to be “a non-litigious method for dispute resolution in which the disputants are able to exercise tremendous autonomy facilitated by a neutral third party” (Liang, 2008 p. 23). Since its inception, there are records of several organizations and institutions that have used mediation processes to settle what would otherwise have been long running legal litigation and battle. In some cases, mediation has come in as settle options for cross border cases involving the United Arab Emirates and other countries. As far back as 1971, the United Arab Emirates underwent a successful mediation process to settle what would have been a long running international litigation with Oman and this move highly praised by the United States and other international bodies (Condliffe, 2002, p. 233). This means that mediation takes several dimensions and come in as resolution option for different forms of litigations in the United Arab Emirates. However, there have been instances where the mediation processes have not been continued to its logical conclusions. This is because mediation outcomes are not enforced, resulting in the need to resort to the courts. This paper therefore discusses enforceability of mediation outcome and provides recommendations to overcome the problems associated with lack of compliance. Essence of Mediation in Dispute Resolution Construction The importance of using mediation cannot be overlooked in anyway. Ultimately, mediation is used as an alternative dispute resolution process and this comes with so many advantages. In the first place, the use of mediation instead of litigation or arbitration saves a lot of corporate and commercial cost. This is because the processes are not very demanding in terms of money, time and energy (Gardener, 2009, p. 32). Moreover, the conclusion of mediation is free of all forms of legal punishment such as fines and imprisonment. What this means is that parties involved in mediation can always be assured that there will be settlement that does not put any commercial cost on them. What is more, peace is always guaranteed when mediation is used. Whether used by individuals, corporate bodies or between nations, the use of mediation helps in eliminating the fear of violent, brutal and sadistic conclusion to cases (Condliffe, 2002, p.111). This is especially important when using mediation between nations. This point is so made against the background that the world has experienced a number of wars, which experts have ruled that they could have been avoided if there were alternative means of resolving them. There are cases of major corporate organizations which went into liquidation because of protracted court proceedings and rulings. Most of these organizations, if they had chosen the path of mediation would still have been functioning and making profits. Finally, it would be said that mediation is essentially important in coming out with easy-to-apply remedies. This is because the outcomes of mediations are mostly arrived as a result of compromise between the parties involved instead of a ruling by an arbitrator. This way, the two parties arrive at consensus that benefits them both in settling their differences. Factors inhibiting the Compliance of Mediation Outcomes Despite the beautiful advantages of the use of mediation that can be listed on and on, there are major hindrances to the successful application of mediation as a dispute resolution and construction mechanism and therefore put a lot of parties off from using it. This has to do with the noncompliance of mediation outcomes. There are a number of factors that affect the inhibition of compliance to mediation outcomes. The first of such factors has to do with the legal provisions that set mediation as a dispute resolution alternative up. Liang (2008, p. 35), notes that the neutral third party who sits in the mediation case has no binding authority to settle their dispute. This means that there is no legal provision that makes the conclusions and outcomes of the mediation enforceable and binding to the parties involved. Due to this, there has often been a situation whereby the party that feels that the outcome does not benefit him or her refuses to comply. What is more, there is the absence of an adjudicative document, which is present in arbitration and ligation. Instead of an adjudicative document, “the mediation settlement agreement is a consensual contract between the parties” (Liang, 2008, p. 101). There is therefore no legal basis for compliance to mediation outcomes. El Saddik (2010, p.231), actually laments on the present development, stating that the various difficulties that have been associated with lack of compliance of mediation outcome is “attributed to the lack of recognition of the mediation outcome as an enforceable outcome similar to the arbitration award and to the same extent.” Essence of enforceability of Mediation Outcome There have been series of research on the occurrences of lack of adherence to mediation outcome in most mediation cases in the United Arab Emirates and the world at large, which have suggested that one of the core solutions to curbing the situation is through having an enforcement component to the process (Gardener, 2009, p. 123). In his research, El Saddik (2010, p. 57) found out that “doing so will make the mediation even more attractive as a dispute resolution method, and its outcome is more durable.” This is a very strong justification to the need to add a component of enforcement to the mediation process so that outcomes of mediation processes would be enforceable and binding on parties involved. The point is that if it continues that people forego all forms of legitimate options to get issues settled only to come to a point whereby the outcomes of mediation would not be fulfilled by all parties then there is not going to be any motivation for people to continue pursuing mediation as a choice. The durability aspect of mediation also refers to the situation whereby outcomes of mediation processes are quickly done away with of lack of enforceability. As it is now, the outcome of mediation processes are only seen as an agreement, where as the role of the mediator as a contract facilitator” (El Saddik, 2010, p. 73). It is therefore time for ensuring high level of trust to mediation by adding a component of enforceability by making the mediator more of an enforcer rather than an ordinary facilitator. Consequences of repudiation of Mediation Outcomes With specific reference to the United Arabs Emirates, it would be observed that mediation is not compulsory in courts. This means that mediations are used only as options and by choice by those who use them. In the repudiation of mediation outcomes continues therefore, there exists the rather unpleasant consequence that a very wrong impression will be created in the face of the international community whereby corporate bodies and individuals who get involved in legal issues with people and organizations in the United Arabs Emirates would not consider mediation as a viable option at all. This means that the unpleasant situation of having to go through the several complexities associated with the use of court would become the order of the day. In another implication, repudiation of mediation outcomes has the potential of creating a situation whereby parties would come go out of mediation processes only to go back to trail (Spencer and Brogan, 2006, p. 110). Most certainly, this would be a waste of the mediation process and may even cause delays in the delivery of justice. As it is commonly said in legal circles, justice delayed is justice denied. As far as this assertion holds, mediation is going to be continued to be seen as a means of denying people of deserved justice because their justices are going to be delayed in the name of repudiation of mediation outcomes. Finally, there is the tendency that highly aggrieved people or parities may take the law into their own hands and abuse the legal process if they feel cheated by parties who repudiate the outcomes of mediation processes. Arguments against Enforceability of Mediation Outcome Enforceability of mediation outcomes as being pushed for in this paper would involve the practice of having a code in the mediation process that ensures that the conclusions to be rushed out of the mediation have a compliance backing. Such a compliance backing would criminalize refusal to comply and specify sanctions for refusal to comply. This would ultimately ensure that the consequences of repudiating mediation outcomes are done away with. However, there are some quarters of arguments that are against the enforceability of mediation outcome. The basic argument put forth by this school of thought is that once enforceability of mediation outcomes is legalized and sanctions are made to accompany non-compliance, the whole idea behind mediation would then be defeated (Gardener, 2009, p. 90). They actually concede that in the event of enforceability of mediation outcomes, the basic inspiration of using mediation as a peace process would become a sham and that mediation would now be nothing different arbitration, trail or litigation. Others also believe that the enforceability of mediation outcomes would come as a component to the process that will only result in scaring parties away from taking part in mediation or opting for mediation. But as much as these may be legitimate concerns on the enforceability of mediation outcomes, it is only good to note that a system that would make mediation more reputable and trusted for results that is less patronized would be far better than a doubtful system that will have so many patrons who will only become disappointed at the end of the day. Suggestions for achieving enforceability of International and Local Mediation Outcome In the light of the fact that enforceability of mediation outcomes may have some demerits but that the merits outweigh the demerits, the following recommendations are made for adaption by the construction industry of the United Arab Emirates and other parts of the world. The first recommendation is on the need for instituting legislation at the national level to ensure the enforceability of outcomes of mediation. In the light of this, El Saddik (2010, p.12) states after a thorough research of the problem of lack of compliance that “national systems should enact a legislation regulating the mediation process and its outcome as a real dispute resolution process and gives it the proper enforceability recognition.” Indeed in the United Arab Emirates judicial system, the only way to get a legal binding status to the mediation process would be for it to go through the legislation process (Spencer and Brogan, 2006, p. 113). It is against this backdrop that this recommendation is being made. In the view of the writer, a very advantage that this recommendation if implemented at a national level would bring is that it would lead to public global trust for the United Arab Emirates as a country that has taken steps to respect the outcomes of mediation processes. Such an international image would in the long run boost their international relation and foreign direct investments because investors would be reassured that should mediation become the selected alternative for settling a given dispute, the outcome of that settlement would be respected. After taking a national stand on the enforceability of mediation outcome through a national legislation, it would also be important to come out with an intervention that has an international reflection. To this end, it is recommended that there should an international convention that backs the use of mediation as an alternative dispute resolution mechanism. With such a convention, mediation would be given a better international and national image as a reliable dispute resolution mechanism. That convention should also as a matter of principle have enforceability by-clauses. It is in line of such need that El-Saddik (2010, p.12) concludes that “lobbies should be set up, internationally, so as for the United Nation to issue a similar convention to "The United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards" and " the New York Convention 1958"”. In such as circumstance mediation will be considered highly ideal not just for the construction industry in the United Arab Emirates but also for onward usage foe serious bi-lateral conflict situations that would have otherwise resulted in wars and offensive conflicts. It is therefore high time that the international community through the United Nation had “a convention which should provide for the international recognition of the mediation outcome as a mobile enforceable judgment” (El-Saddik, 2010, p.23). Conclusion Mediation has been identified as an alternative dispute resolution mechanism that in principle has a lot of benefits. However the practice of mediation has been hit with a number of limitations, one of which is the lack of compliance on the part of parties who are involved in the mediation process. Through the paper, it has been established that the problem within the construction industry and other scenarios where the use of mediation exists because of the restricted powers given to mediators who for now only act as facilitators instead of enforcers of the mediation outcome. Again, in the United Arab Emirates to be specific, there is no legal place for the mediation in the court system. It is in line with this that the recommendation has been made for the need to put mediation enforcement into a legislative binding. Again, there should international conventions to back the practice of mediation. It is very important to point out that this will in no way liken mediation to arbitrary or court settlement. Rather, it would help in boosting the trust that should exist in the use of mediation; for after all mediations are there to give settlements and so if there are laws enforcing settlement of mediation outcomes, there should be nothing alarming about that. REFERENCE LIST Condliffe P. 2002, Conflict Management(A Practical Guide) (LexisNexis Butterworths, 2nd ed, 2002), 185-190. El Siddik A. M. T., 2010, “Enforceability of the mediation outcome”, eLaw Journal: Murdoch University Electronic Journal of Law, Vol 17, No 2 (2010) Gardener T. S., 2009, Mediation for International Implementation. Oxford: Oxford University Press Liang, J., 2008, “The Enforcement of Mediation Settlement Agreement in China”, The American Review of International Arbitration. 19: 489. Spencer D., and Brogan M., 2006, Mediation Law and Practice. Cambridge University Press: Cambridge Read More