The Middle East becomes increasingly pro-mediation

The Singapore Convention shines a spotlight on mediation

The increasing popularity of mediation in the Middle East may stem from the 2020 signing of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention). The Singapore Convention seeks to promote mediation as a method of alternative dispute resolution and create a framework for the resolution of disputes through mediation. In particular, the Singapore Convention seeks to ensure that agreements to mediate are enforceable (and will be enforced in domestic courts) in signatory states. In this way, it is similar to the New York Convention, which seeks to ensure the enforceability of agreements to arbitrate. 

Qatar and Saudi Arabia were founding signatories of the Singapore Convention and in 2022, the UAE announced that it would become a signatory also (though it has yet to do so). 

As the Singapore Convention gathers more signatories, we anticipate jurisdictions across the Middle East will take steps to increase develop mediation frameworks. 

Regional laws promote mediation across the Middle East

The UAE and Qatar have recently passed laws which make mediation a more attractive means of resolving a dispute.

Qatar 

In November 2021, Qatar issued its Mediation Law, which applies to all mediations taking place in Qatar, except where the parties agree otherwise, or where parties agree to apply the Mediation Law to their dispute. The Mediation Law also allows courts to request parties to mediate their disputes; though if a party does not agree to mediation, then the dispute shall continue. 

Importantly, the Qatar Mediation Law imposes strict obligations of confidentiality upon the parties and the mediator, prohibiting the disclosure of all discussions, documents or offers and imposes fines if those obligations are breached. 

UAE 

The UAE issued its Mediation Law in April 2021 and, like Qatar, the UAE sets out a structure within which mediations should occur, by recognising the enforceability of mediation agreements. This allows UAE onshore courts (i.e., those outside of freezones) to refer a dispute to mediation, though such referral will only be effective if the parties consent to mediation.

The most important change for facilitating productive mediations is the codification of the confidentiality of mediations themselves. In line with best practice, the UAE Mediation Law requires that the content and conduct of mediations should be kept confidential. The law prescribes that parties cannot rely on any documents or concessions made in the mediation before courts. Deviations from these confidentiality obligations may only be made with the consent of both parties.

In conjunction with the UAE Mediation Law, the UAE government has also established an “eMediation” platform called “Wasata” to allow parties to facilitation effective mediations. 

Saudi Arabia 

In 2023, Saudi Arabia issued a draft mediation law which follows many of the best practice features which have been adopted by the UAE and Qatar, such as requiring mediation proceedings be kept confidential. The law has not yet come into force but is expected imminently, as Saudi believes it will improve the “Kingdom’s business environment and investment attractiveness”. 

Institutional promotion of mediation

Virtual mediation in Abu Dhabi

The Abu Dhabi Global Market (ADGM) is an English common law freezone in Abu Dhabi. In late 2022, it launched a virtual mediation service which seeks to facilitate mediation and reduce the need for parties to meet in person to negotiate their disputes. 

This service has been supplemented by the recently launched “ODR@ADGM”, a secure and confidential digital platform that is intended to allow parties to a dispute to engage proactively in negotiations. The platform is a portal which will guide parties through a series of questions that will result in a tailored settlement offer. This settlement offer will be sent to the other party, who can then engage with the settlement offer on the platform.

ODR@ADGM is intended to be a flexible means of allowing the parties to engage in negotiations, with deadlines that can be tailored to the parties’ particular needs. 

The DIAC Mediation Rules

On 1 October 2023, DIAC issued its 2023 Mediation Rules, which are a welcome addition to DIAC’s role as Dubai’s premier arbitration institution. 

The 2023 Mediation Rules emphasise the consensual nature of mediation and allow any party to withdraw at any stage of the process. In line with international best practice, the 2023 Mediation Rules require any mediator to be independent of the parties and maintain their independence, and to disclosure any real or potential conflict of interest. The 2023 Mediation Rules do not set down a rigid procedure for the conduct of the mediation, but rather afford the mediator and the parties’ broad discretion in how the mediation should be conducted. Finally, the 2023 Mediation Rules prescribe that all information related to the mediation should remain confidential, as should any settlement agreement. Importantly, the 2023 Mediation Rules prohibit a party from relying on any statement made during the mediation to be used in any judicial or arbitral proceedings. 

This last provision is a particularly positive inclusion as it helps to clarify the scope of the confidentiality obligations that adhere to mediations pursuant to the 2023 Mediation Rules. We hope that this obligation encourages parties to view mediation as a constructive way to better resolve their disputes, without fear of prejudicing their formal positions in litigation. 

OAC’s 2021 Mediation Rules 

Though less recent, it is also worth highlighting that in 2021 the OAC issued its Mediation Rules. Like other mediation rules highlighted above, the OAC Mediation Rules provide a structure for parties seeking to mediate their disputes. Similar to other rules, they also emphasise the confidentiality of the mediation process, and are a welcome addition to the region’s dispute resolution landscape.

Conclusion

Countries and institutions throughout the Middle East are updating their laws and rules to encourage mediation as a means of dispute settlement, both providing structure to the mediation process and emphasising the importance of confidentiality of the mediation process. These changes will help to foster an environment where the parties can be more candid with one another and resolve their disputes more quickly and cheaply. 

As the Singapore Convention gains signatories, and more countries in the Middle East ratify the Convention, we expect to see an increasing number of countries pass pro-mediation reforms, making mediation an increasingly attractive option to parties in the region.