DIAC MEDIATION RULES 2023: A COMPREHENSIVE ANALYSIS
13 November 2023
Bini Saroj
The launch of the DIAC Mediation Rules 2023 on October 1, 2023, is a notable achievement for Dubai’s International Arbitration Centre (DIAC), underscoring the growing prominence of mediation in dispute resolution strategies.
Dubai: Federal Decree Law No. 40 of 2023 marks a significant development in the legal landscape of the United Arab Emirates, specifically addressing Mediation and Conciliation in Civil and Commercial Disputes. This legislation consolidates and streamlines the mediation and conciliation frameworks at the federal level, leading to the repeal of Federal Law No. 6 of 2021 and Federal Law No. 5 of 2021. Effective December 29, 2023, the Mediation and Conciliation Law will usher in a new era for dispute resolution in the UAE.
I.Implementation of Mediation and Conciliation Law
This law designates the Federal Judiciary or local judicial authorities with the responsibility of establishing Mediation and Conciliation Centers within the territorial jurisdiction of the Court of First Instance. Key provisions of the law include the establishment of online mediation and conciliation platforms, coupled with the issuance of regulations to govern the operations of these centers.
1. Authority for Establishment: The Federal Judiciary and local judicial authorities are vested with the authority to establish Mediation and Conciliation Centers. This decentralized approach ensures that these centers are strategically located within the territorial jurisdiction of the Court of First Instance, making dispute resolution more accessible and tailored to local needs.
2. Scope of Jurisdiction: The Mediation and Conciliation Law envisages the establishment of centers covering a broad territorial jurisdiction, aligning with the areas served by the Court of First Instance. This geographical alignment is intended to enhance convenience for parties involved in disputes, fostering a more localized and efficient resolution process.
3. Structured Framework: In the realm of dispute resolution, the Dubai International Arbitration Centre (DIAC) provides a structured framework through its mediation guidelines. When parties willingly opt for mediation, Article 2 underscores the applicability of these guidelines, emphasizing the core objectives of unbiased, efficient, fair, and reasonable mediations. The commitment of all involved parties, including the mediator, to align with these goals ensures a principled and purpose-driven mediation process.
4. Commencement of Mediation: The initiation of mediation is a crucial step, and Article 3 provides a roadmap for this journey. Commencing with an application in accordance with Appendix 1, the party seeking mediation must notify the Centre, with a copy forwarded to the opposing party. A responsive reply, following the guidelines in Appendix 2, is expected within 15 days. The article further accommodates extensions, provided both parties agree. Notably, mediation becomes viable only after verification of unanimous agreement from all parties.
5. Appointment of Mediator: Article 6 outlines the critical process of mediator appointment. The Arbitration Court, unless parties agree otherwise, appoints a mediator within a specified timeframe. The selection considers various factors such as the nature of the dispute, mediator credentials, nationality, location, experience, and language. Independence and impartiality of the mediator are paramount, with provisions for objections within 5 days of appointment. Contingencies, such as resignation, trigger prompt replacement by the Arbitration Court, maintaining the integrity of the mediation process.
6. Conduct of Mediation: Once initiated, mediation follows a structured course as outlined in Article 7. Within 7 days of receiving the case file, the mediator engages with the parties, discussing the mediation agreement, communication strategies, and confidentiality policies. Parties may have representation, and the mediator facilitates joint or separate meetings. The overarching goal remains aiding parties in reaching a settlement, with provisions for expediting the process if an agreement is reached.
7. Online Mediation and Conciliation Platforms: Recognizing the evolving landscape of dispute resolution, the law incorporates provisions for online mediation and conciliation platforms. This digital dimension aims to provide a flexible and accessible alternative, especially beneficial for parties unable to physically attend mediation sessions. The inclusion of online platforms reflects a commitment to embracing technological advancements in the pursuit of effective dispute resolution.
8. Conclusion of Mediation: Article 8 outlines various pathways to conclude mediation, from unanimous consent to withdrawal, objection, or a settlement agreement. Importantly, the termination of mediation doesn't impact the merits of the dispute. The article introduces the possibility of issuing a certificate in cases of unsuccessful mediation attempts, providing closure to the process.
9. Functions of the Centre and Arbitration Court: Article 10 elucidates the roles of the Centre and the Arbitration Court in overseeing mediations and resolving disputes outside the purview of the rules. The confidentiality of the Court's reasons, except in cases of challenging a mediator's appointment, underscores the procedural integrity of the mediation process.
II.DETAILED EXAMINATION OF IMPLICATIONS
This in-depth analysis provides a detailed examination of the key aspects and implications of the Rules.
•Flexibility in Referring Disputes to Mediation: Parties now have the flexibility to refer a dispute to mediation before the DIAC, even in the absence of a pre-existing agreement to mediate. This allows for a dynamic approach, enabling parties to explore mediation as an initial step, even if they had initially opted for DIAC arbitration in their contracts.
•Fairness, Impartiality, Efficiency, and Proportionality: The Rules emphasize conducting mediations with utmost fairness, impartiality, efficiency, and proportionality, considering factors like dispute value and complexity.
•Consensual Requirement: Unlike adversarial processes in arbitration and court proceedings, mediation under the Rules requires consent from both parties. If the respondent does not cooperate, the mediation process cannot proceed.
•Mediator Appointment and Declarations: The parties can jointly nominate a mediator, or the DIAC’s Arbitration Court intervenes for an appointment. The mediator's qualifications, nationality, and other factors are considered. The appointed mediator must sign a declaration of impartiality, independence, and disclose any conflicts of interest.
•Preliminary Meeting and Procedure Determination: The mediator promptly contacts the parties to schedule a preliminary meeting, addressing key aspects such as the mediation agreement, procedural language, confidentiality, and other relevant matters. The determination of mediator fees and expenses also occurs during this meeting.
•Confidentiality Paramount: The Rules highlight the paramount obligation of confidentiality during mediation, fostering an environment of trust. Any information, materials, or statements made during mediation cannot be used as evidence in subsequent judicial or arbitration proceedings.
•Potential Limitations in Statutory Guarantees: The analysis raises awareness of potential limitations in statutory guarantees, particularly regarding the use of confidential mediation-related information in subsequent court or arbitration proceedings. Without statutory provisions preventing such use, parties may depend on the subsequent arbitrator or judge to uphold confidentiality.
IN CONCLUSION:
Mediation, with its potential for efficient and cost-effective dispute resolution, is poised to gain traction in Dubai and the broader region with the introduction of the DIAC Mediation Rules 2023. The Rules, offering a well-defined framework, aim to stimulate greater interest and engagement in mediation, providing parties with a valuable alternative for resolving commercial disputes.
The introduction of this law reflects a broader global trend towards promoting alternative dispute resolution mechanisms. By aligning with international best practices, the UAE reaffirms its commitment to providing efficient and innovative solutions for dispute resolution, contributing to a more robust and dynamic legal framework.
ALKETBI TOUCH:
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