Alternative dispute resolution: Mediation as a model

1. Introduction

Mediation is a general idea that has existed in societies since its inception. However, it did not gain momentum as a legal idea except in contemporary civil and commercial laws. It appeared due to the slowness and complexity of the judiciary in judicial procedures as disputes may take a long time and more expenses, including experts, lawyers, and court fees inter alia. We may add to that the state of hatred between litigants when the court ruling is issued because the judgment in judicial disputes may not be satisfactory to both parties, but it is rather in favor of one over the other. This may be justified for logical and legal reasons. The judiciary seeks to reach the judicial truth which may be in agreement or disagreement with the realistic truth. Mediation was primarily introduced for the purpose of solving these problems. By virtue of this mediation, a third party takes over the study of the dispute and elaborates a solution and a settlement that satisfies the two parties to the dispute. It is an advanced method of resolving disputes between the parties by their agreement. The parties appoint a person called the mediator, whose task is to limit the dispute through the continuity of communication between the parties individually and jointly with the aim of bridging the gap between them so as to meet and agree eventually on a mutual compromise. Mediation then, is a voluntary process in nature, and the mediator may not make a decision that has become the basis of the dispute. Rather, her/his role is limited to trying to conciliate the opposing views of the parties and to proposing alternative solutions before them without imposing any of these on them.

The research problem revolves around the fact that most of the legislations have not codified legal mediation in an independent law that regulates it as an alternative to resolving disputes and that its provisions are distributed or spread in many laws. Therefore, this paper tries to answer the following questions:

2. Literature review

Mediation is one of the most preoccupying topics for many scholars and researchers given its vital role in resolving civil and commercial disputes. It is also efficient as it saves time (Shi’an and Ahmed, 2017; Hamdan and Frederick, 2014), the topic has been the subject of numerous case studies (Al-Naqash, 2009; Badawi, 2003), unlike ours, have addressed the procedural and confidential methods of resolving disputes (Abdel Reza, 2015; Aqeelah, 2011) and emphasize its role as an alternative method (Dheeb, 2009; Al-Qurtubi, 1985; Ben Belkacem, 2009; Odilqoriev, 2022; Fuad Abd Al-Baqi et al., n.d.; Al-Ahmad, 2008, n.d.; Al-Salibi, 2010, n.d.; Mubarak, 2002; Sadiq, 1982; Al-Nasser and Al-Ghanem, 2003; She’an and Ahmed, 2014, n.d.; Zaki, 1993; Al-Qudah, 2004; Mustafa, 1952; Sloma, 2023; Al-Khafaji and Al-Khafagi, 2021; Cachard, 2008; Jean Louis Lascoux, 2009).‏Valentyna Sloma’s study, entitled “Mediation as a Method of Resolving Civil Legal Disputes” (Sloma, 2023), focuses on defining.

Valentyna Sloma’s study, entitled “Mediation as a Method of Resolving Civil Legal Disputes”, focuses on defining mediation and its characteristics as an extrajudicial, voluntary, and confidential method. The study highlights mediation’s effectiveness in property law disputes and emphasizes its role as an alternative method for resolving civil legal disputes.

Frank E.A. Sander’s “Alternative Methods of Dispute Resolution: An Overview” underscores the importance of continuous research and experimentation in developing a conceptual framework for alternative dispute resolution. It aims to raise awareness about the benefits of alternative methods of resolving disputes.

Faras Karim Shi’an and Hind Faiz Ahmed’s study, “Mediation in Electronic Disputes,” examines mediation in electronic disputes under Iraqi laws and international agreements. The study discusses the absence of mediation in Iraqi legislation and its effectiveness in settling disputes.

Mohamed Nabil Naqash’s study, “Banking and Insurance Mediation in Tunisian Law,” analyzes mediation and conciliation in banking operations in Tunisian law. It highlights the prevalence of mediation in commercial disputes and advocates its use before resorting to courts.

Mounir Mahmoud Badawy’s study, “Mediation and Third-party Role in Dispute Resolution,” explores the mediator’s role in conducting mediation procedures and facilitating settlement solutions. The study emphasizes mediation as a successful means for resolving disputes and conflicts.

Mohammed Ali Abdel Reza’s study, “Mediation in the Peaceful Resolution of Disputes in Iraqi Legislation: A Comparative Study,” investigates mediation as a means of amicable dispute resolution in Iraqi legislation. It addresses various issues related to mediation and emphasizes the mediator’s role in achieving speedy resolutions.

Nahla Yassin Hamdan and Frederick Pearson’s study examines disputes within companies and advocates extrajudicial settlement as the optimal approach. The study identifies governance issues leading to disputes and emphasizes the need for non-judicial resolution methods.

Forqan Ali Hussein Al-Khafaji and Hussein Al-Khafagi’s study addresses mediation as an alternative means of resolving disputes and the necessity of Iraqi legislation to regulate it. The study highlights the importance of legislative regulation of mediation and other alternative dispute resolution methods in Iraq.

What distinguishes our study from previous ones is its particular focus on the procedural aspects of the mediation process so as to achieve a resolution in civil and commercial disputes. While previous studies primarily highlighted the benefits of mediation and analyzed its role in resolving conflicts, our study goes beyond that to provide a comprehensive view of the mediation process, including its procedural aspects.

We shall provide detailed guidance on how to apply mediation as a method for resolving disputes, starting from the inception of the process to reaching a final settlement. We shall outline the necessary steps to initiate mediation, such as selecting the appropriate mediator, establishing confidentiality procedures, and collaborating with involved parties. Additionally, we shall analyze the factors that may impact the success of the mediation process and how to address them.

As such, our study stands out as a practical reference for researchers and stakeholders interested in the mediation process, offering specific and detailed guidance on organizing and executing mediation in an effective and fruitful manner.

This study is in line with the Mediation and Conciliation in Civil and Commercial Disputes Law, enacted by the United Arab Emirates in 2023. This law aims to enhance justice and facilitate the resolution of disputes through non-judicial means. It comes within the UAE’s continuous efforts to foster a favorable business environment and promote a culture of settlement and mediation.

This law represents a significant step towards enhancing mediation as a primary method for resolving disputes, providing the necessary legal framework to regulate and facilitate mediation and conciliation processes. The law includes provisions that specify the conditions and procedures necessary for conducting mediation, such as appointing qualified mediators, ensuring confidentiality of information, and defining procedures for reaching final settlements.

Furthermore, the law provides legal protection for parties participating in mediation processes, encouraging active engagement and fostering confidence in the outcomes. Additionally, the law works to promote a culture of conciliation and peaceful dispute resolution, in order to contribute to improving the business climate and attracting investors to the country.

Overall, the Mediation and Conciliation in Civil and Commercial Disputes Law for the year 2023 in the United Arab Emirates represents a significant step towards enhancing justice and stability in the legal environment and achieving fair resolution of disputes.

3. Methods

The methodology developed in this study adopts the descriptive analytical approach to the different principles of arbitration. The research will seek to provide an in-depth analysis to critically assess the importance of mediation as one of the effective and equitable methods of arbitration. This study draws upon basic resources, including but not limited to literary publications, scholarly periodicals, and online articles.

Through the methodology adopted in this study, which relies on the analytical approach, researchers from various countries can directly benefit from this research. They can utilize the theoretical and methodological framework elucidated here to conduct similar studies focusing on the importance and effectiveness of mediation as an equitable and effective method in arbitration. Furthermore, researchers can draw from the primary sources used, including literary publications, scholarly journals, and online articles, to support their analyses and academic discussions.

In this way, your study becomes a valuable contribution that the global academic community can benefit from in deepening their understanding of the importance of mediation as an effective tool in arbitration. It also encourages them to conduct further research to advance this field in their own countries and local communities.

4. Concept and origins

Mediation is based on the provision of some kind of dialogue to the conflicting parties to meet and converge views through an impartial person who assumes this task in order to reach an amicable solution that satisfies all the conflicting parties (Sloma, 2023).

Article 8 of UAE Law No. 40 of 2023 concerning Mediation and Reconciliation in Civil and Commercial Disputes states: Article (8):

Mediation is permissible for all civil and commercial disputes that are amenable to resolution, provided it does not contravene applicable laws, public order, or morals within the state, taking into account the provisions of Article (28) of this law, and without affecting the provisions of local laws governing mediation. Mediation may encompass the entirety of a dispute or a portion thereof. The provisions of mediation outlined in this chapter shall apply under the following circumstances:

In the 1960s, the American Civil Court introduced the “American Rule”. This rule means that the parties to the dispute are obliged to pay lawyers, regardless of the success or loss of their case (Odilqoriev, X.T., 2022). In doing so, the application of this rule has resulted in substantial costs and exorbitant amounts for the parties. The United States is one of the countries that relies on mediation in the resolving of the civil disputes.

In USA, mediation plays a key role in the resolution of extrajudicial disputes due to the complexities of the judicial system, and the high costs of litigation, especially lawyers’ fees because lawyers receive their fees in a manner consistent with their working hours to reach the judicial judgment in the dispute. Mediation in American laws initially emerged in relation to the resolution of labor disputes, especially with the enactment of the Addiction Act in 1898 (Sloma, 2023),while, after the enactment of the Railway Labor Law in 1926, the commissions of mediation and reconciliation were formed to deal with labor issues. Mediation was not only limited to labor disputes. It was used as an effective means of resolving family disputes in the United States, where the Judges’ Association and Family Courts were established, with the aim of promoting reconciliation in family cases, as an alternative to litigation. These institutions were subsequently established across various regions of the USA, including the Family Mediation Association and the Family Mediation Academy (JeanRobert, 1993; Elias Nassif, 2012; Musaada, Ayman, 2004). After that, mediation has become a mandatory procedure in USA family affairs, particularly for the issues related to marriage and divorce (Agnéstavel & Lascoux, Jean Louis, 2009).

In the Latin legal system, mediation has been used since the end of the nineteenth century. Napoleon Bonaparte enacted a mediation law in 1803. The American mediation model prevailed in Germany, while it was less applied in France. There, the mediation system, from the outset, has been directly integrated within the justice courts (Odilqoriev, X.T., 2022). Article (48) of the French Code of Civil Procedure of 1806 stipulates that the initiation of any lawsuit regarding a judicial dispute is inadmissible unless it is preceded by an attempt at preliminary reconciliation before the Magistrate’s Court. By introducing this article, it appears that the French legislator has given the litigants an opportunity to seek alternative means of resolving their disputes before levelling it before the court.

Mediation, from a formal standpoint, is an alternative litigation mechanism that aims to resolve the dispute, through the intervention of a neutral person, called a mediator, who works to help the parties to the conflict negotiate, in order to reach a settlement to resolve the dispute. The third paragraph of Article 1 of the UNCITRAL Model Law of the Year (2002) for international commercial conciliation defines mediation as “any process, whether referred to as conciliation or mediation, or by another term of similar meaning, in which the two parties request another person or persons (conciliator or conciliators) to assist them in their endeavors to reach an amicable settlement of their dispute arising out of a contractual or other legal relationship.”

In light of the foregoing, mediation can be defined as a voluntary process based on the will of the parties to the conflict to resort to it, and in which they work with a third person, called a mediator, who enjoys the capacity of integrity and impartiality and who can find a mutually acceptable solution that ends the dispute (Mustil arbitration, 1980).

Mediation has become a prominent tool in legal and economic thought. At the global level, it is an urgent matter to meet the requirements of modern business due to the rapid and continuous expansion and development of trade patterns (Al-Khafaji & Al-Khafagi, 2021) on the one hand. On the other hand, mediation has characteristics that distinguish it from traditional means of resolving disputes. These advantages have become acceptable for resolving disputes, reducing the burden on the judiciary and speeding up disputes solving with flexibility.

There is no doubt that slow justice is a denial of justice. So, we argue that the mediation process largely serves this purpose, namely, the rapid pace of settling disputes. This is shown by the legislator’s determination of the period in which mediation is accomplished. The Jordanian legislator goes further, as it sets the period for which the parties restrict the provision of the mediator with documents related to the dispute starting from the date of referring the dispute to mediation. The purpose is to ensure the resolution of disputes at a rapid pace as mediation avoids complicated formalities. Several requirements must be followed on pain of nullity, imposing restrictions on the parties involved in the litigation. In mediation, there is no procedure resulting in nullity, so on the contrary, mediation aims to follow any procedure that could lead to a satisfactory solution to the parties to the dispute. Moreover, resorting to mediation is not mandatory. It is the right of any of the parties to refuse mediation and resort to the judiciary to proceed with the case in accordance with what is legally prescribed for it. The parties to the conflict derive this right from the constitution.

However, it must be noted that mediation differs from arbitration, as this is a means of settling disputes in which the arbitrator’s ruling on the subject matter of the dispute replaces the judicial ruling. Accordingly, there are those who see that the position of the arbitrator is identical to that of the judge, even if their sources differ (David (René), 1982; Abdul Al-Qadir, Nariman, 1996). The parties agree to select the members of the arbitration tribunal to decide on the issue in dispute. The arbitrator shall have the role of a judge in resolving the dispute subject to the arbitration agreement, by an arbitration award that is binding on them, and stems from the will of the arbitrators and not the will of the parties to the dispute. Arbitration is binding. As for mediation, it is not. Also, the judgment issued by the arbitration tribunal, or the arbitrator shall be considered an executive document whenever the order for its implementation is issued by the public judiciary in the state, and it is challenged by the legally prescribed appeal methods. Just as mediation differs from a legal point of view from reconciliation, as this latter according to the provisions of the civil law, is a contract by which the two parties actually resolve a conflict that has arisen between them, or prevent a potential conflict. This results from each party’s voluntary relinquishment of some of its demands (Camara Fatou kiné, 2009). As for mediation, it is the endeavors undertaken by the two parties with the mediator to help the conflicting parties, to reach an agreement on a solution that ends the dispute amicably, instead of initiating legal procedures. So, mediation is a means; as for reconciliation, it is not a means, but rather an end in nature. And this is done by reaching an agreement on reconciliation (Kanakria, Walid, 2020).

4. Mediation discrimination from arbitration

Mediation is an analytical and optional process where disputing parties choose a mediator to assist in resolving conflicts. The mediator facilitates communication and information exchange between the parties, offering guidance and support to reach mutually satisfactory solutions (Jean Louis Lascoux, 2009). It is noteworthy that the mediator’s role is limited to providing a safe and neutral environment for parties to discuss the issue and reach a settlement without imposing decisions on them. Additionally, the mediator must be well-trained in techniques for successful conflict resolution and creative solutions (Sloma, 2023).

The forms of mediation vary according to the nature and circumstances of the dispute. This includes simple mediation, which involves informal sessions with the mediator to facilitate dialogue and reach a settlement. There’s also formal mediation, which includes court procedures and the appointment of a panel chaired by the mediator to resolve disputes. There is consultation mediation as well which involves parties seeking advice from a lawyer or expert in the field before resorting to mediation to resolve the dispute (Sloma, 2023).

One of the distinctive aspects of mediation is its flexibility in the dialogue and exchange of ideas, striving to ensure that each party is heard and their needs and interests are fairly addressed. It also works to promote understanding and build trust between the parties, making the solutions reached more sustainable and acceptable to all.

In contrast, arbitration is characterized by its formal and binding nature, where arbitrators decide disputes based on evidence presented and applicable laws, without the need for parties’ consent to the final decision. Arbitration is characterized by confidentiality and efficiency in issuing decisions, making it a common choice for disputes requiring a quick and binding resolution (Al-Khafaji & Al-Khafagi, 2021).

In conclusion, while mediation seeks to achieve balance and cooperation between the parties, arbitration aims to issue final decisions that effectively and bindingly resolve disputes.

4. Conclusion

This research highlights the growing recognition and significance of mediation and alternative dispute resolution methods, particularly in civil and commercial disputes. Their importance is especially evident in international disputes, where flexibility and speed are critical. Mediation has also emerged as a practical solution for disputes arising from modern communication technologies, including the internet, e-commerce, and intellectual property. However, mediation should only be conducted by qualified mediators who possess the necessary skills to resolve disputes effectively, ensuring that their solutions comply with public order and morals and do not rely exclusively on legal texts.

The study further reveals that mediation, as a means of dispute resolution, has witnessed significant development in both the United Arab Emirates and Europe. However, there are fundamental differences in their legal and regulatory frameworks. In the UAE, mediation remains in its early stages, with the issuance of the Civil and Commercial Mediation Law of 2021 marking an important step forward. Nevertheless, mediation is largely optional in most cases, and further efforts are required to entrench its culture among individuals and institutions.

In contrast, mediation in Europe is an integral part of the legal system, governed by a comprehensive legal framework, such as the European Union Directive of 2008, which ensures the unified regulation of mediation across member states. Mediation in Europe is characterized by its mandatory application in certain disputes, as well as the active role played by courts in overseeing the process. Additionally, mediation agreements in Europe are legally binding and easily enforceable, even across borders.

There is a pressing need for the UAE to draw lessons from the European experience to develop a more organized and effective mediation framework. This can be achieved by enhancing current legislation, expanding the scope of mandatory mediation, and raising awareness of its importance as a fast and flexible alternative for dispute resolution. These measures would help reduce the burden on courts and ensure justice is delivered more efficiently.

Furthermore, a comparison between the United Arab Emirates and France demonstrates notable differences in their approaches to dispute resolution. While the UAE is in the process of building a mediation framework through initiatives like the Civil and Commercial Mediation Law of 2021, its system is still in the developmental stage. In contrast, France has a long-established and robust mediation framework, characterized by mandatory mediation in specific cases and significant judicial support. These distinctions underscore the importance of the UAE drawing on France’s experience to create a more structured and efficient mediation system.