International Feature: Mediation in the Middle East: Is there any Appetite?

Liam Gray, Civil and Commercial Mediator
Advent Mediation 

Mediation in the Middle East: Is there any Appetite?

Mediation is one of several forms of Alternative Dispute Resolution (“ADR”). It is essentially the  least formal and most flexible form of ADR and relies on the mediator facilitating discussions between the disputing parties in order to assist them in reaching their own resolution – self-determination.

Historically, mediation has been around for some time in the Middle East, known as (‘al-Wasata’), it has  been  an  integral  part  for the traditional culture as an informal means of settling commercial disputes.

From my own personal experience of the Middle East for many years within the construction industry in the contract / claims environment, and, when I became a mediator in 2014, it has always puzzled me as to why this form of ADR has not gained the momentum and traction as opposed to that of say the USA, UK, and Europe enjoys. Indeed, this reminds of an incident while I was training to become a mediator with the RICS in a role play situation with another Arabic candidate. To complete the mock mediation, he just had to make a small concession (I believe it was to offer the other side an apology to achieve settlement), if my memory serves me well. In the debrief he explained that to offer this apology would have shown weakness, which was not part of his culture.

Other  obstacles  for  this  non-traction  in  my  view  can  be  attributed  to  the  procrastination  of government entities in commercial disputes – ‘kicking the can down the line’ to coin a phrase.
Another obstacle I came across in my experience is the challenge of endeavouring to get decision makers even to consider this form of dispute resolution as an alternative, considering the significant benefits in the saving of time, cost and business relationships with regard to a dispute.

For me, I hang my hat on the fact that the traditional culture of not showing weakness as a hurdle as to perhaps why mediation has not developed as opposed to other regions. However, there have been some recent developments in commercial mediation in the region.

As it stands currently, and within the Arabic States, the Singapore Convention (The United Nations Convention on International Settlement    Agreements    Resulting    from    
Mediation, known   as   the Singapore  Convention  on  Mediation  (the  ‘Singapore  Convention’),  was  opened for signature on 7 August 2019. The Singapore Convention already boasts 46 signatories. Of these 46 nations,  five  belong  to  the  Middle  East)
,  has  been  signed  by  Jordan,  Qatar,  and  Saudi Arabia, leaving behind established centres of ADR in the region like the UAE as well as growing centres such as  Egypt, Bahrain,  Kuwait, Lebanon, and Oman. Of course, this is not to say that these countries will not develop mediation to bring in line with the other States mentioned above.

See  below  an  extract  from  an  article  by  Sara  Koleilat-Aranjo (s.aranjo@tamimi.com), Mediation  in the Middle East: Before and After the Singapore Convention, dated October 2019.
“Jordan passed the Mediation in Resolving Civil Disputes Act in 2006. This paved the way for a standalone regime for court-based mediation; mediations were subject to time constraints (they had to be completed within three months) and the settlements arising out of them were final.
Private mediations were also recognised but were not privy to the enforcement mechanisms that are available to court-based mediations.
Similarly,  in  Saudi  Arabia, the  SCCA which was  set  up  in  2016 provides  both  arbitration and mediation services. Regarding mediation, the Centre has developed rules closely modelled on the ICDR-AAA Rules apart from the aforementioned code of ethics for mediators. In December last year, the Ministry of Justice also organised an advanced training programme for qualifying court mediators on best practices to settle disputes following international standards.
In  Qatar,   the  Qatar   International  Centre   for   Conciliation  and   Arbitration  (‘QICCA’) was established in 2006 and adopted a set of Conciliation Rules in May 2012 (the’ QICCA Conciliation Rules’), which were modelled on the UNCITRAL Conciliation Rules. The Qatar International Court and  Dispute  Resolution Centre  (‘QICDRC’)  has  also  been  providing mediation  services  in partnership with the Centre for Effective Dispute Resolution (‘CEDR’) since 2010.”

The future
As highlighted earlier it will be interesting to observed what the impact of the Singapore Convention will have, if any, even though there have been several States that have signed up to the convention, and no doubt more to follow, with some commentators suggesting that mediation in the Middle East has a positive future.
I have my reservations, as I am of the view that the culture of not showing weakness will still be a massive hurdle to clear, I guess time will tell.
 

These are the views of the author and not of Barton Legal, and should is not to be treated as advice or guidance