07 Aug 2019
The UAE have taken strides in recent years in establishing itself as a hub of International Alternative Dispute Resolution (ADR) tools, and that is by establishing reputable international free zone centers such as DIFC and ADGM, in addition to enhancing and changing the legislations to support the enforcement of the awards of those centers in the local judicial system.
With the rise of the International Arbitration practices in the the UAE, the mediation field have started to gain some traction in the ADR field in the local market, however, I usually like to argue that Mediation is indeed a widely used tool in resolving disputes related to family issues, and business relationships but takes different forms and comes under a lot of names within the culture and even the legislative laws in the UAE.
Since I was a child I heard so many stories from my family about the Late Shaikh Zayed Bin Sultan Al Nahyan "Majlis" - in this context the Majlis is the gathering of local merchants and traders in an open forum with a head from the ruling family or a prominent figure of the society or government where they discuss the key issues of the day, it is also referred to in the local dialect as Mayles-, and how people, tribes and businessmen used to go to him seeking his wisdom in resolving issues arising between them, and then taking his verdict as a binding ruling and applying it in real life. and like modern Mediation, the parties usually went to the Majlis voluntarily, and the verdicts might not be "as per the contractual" relationship, but it would be ruled based on compromise, middle grounds and fairness approach.
Even in this modern era, I have also witnessed during my professional career in contracts management and dispute resolution that UAE based business still preferred this method, where either disputing parties go to a "Majlis" and air their grievances to get to a fair resolution, or they go to the employers in the cases were the employer in a government entity and the elect a person of whom they trust to resolve their dispute outside the litigation system.
On the other hand, we see the application of Mediation in different fields in the UAE, such as Family Mediation which is considered a compulsory step before hearing any divorce case in the UAE, and the mediation centers to resolve disputes between labors and employers on a federal level, and finally rentals disputes centers across the UAE.
That being said, and after knowing the availability of such channels, the local market is still hesitant to use Commercial Mediation tools in its text book definition, not knowing that they are practicing it in most of their disputes. Most of the concerns from the business community is around confidentiality and effectiveness/ enforceability of Mediation through ADR centers, but what can we do as ADR community to reassure the market about their key concerns?
I believe that Mediation in the text book definition is up for a "make over" and rebranding in the UAE commercial market, ADR professionals should listen more closely to the local commercial markets, and address their concerns in a reassuring and open manner. So far most of the discussions have been one sided and very "educational" in nature. But as any international concept or business would tell you, adapting to the local market is the key to the success of their product in it.
I might not have all the answers to how to get the market to embrace Mediation as an ADR tool given that the centers and the laws in the UAE are already in place, however I can confidently say that Mediation is not a new concept to the market, and with the right approach can be the go to tool to resolve commercial dispute in the region.
Fatima Balfaqeeh MCIArb