HIGHLIGHTING THE FEDERAL LAW NO. (5) OF 2021 REGARDING THE AMENDMENT OF SOME PROVISIONS OF FEDERAL LAW NO. 17 OF 2016 REGARDING THE ESTABLISHMENT OF CONCILIATION AND MEDIATION CENTERS FOR CIVIL AND COMMERCIAL DISPUTES, AND FEDERAL LAW NO. (6) OF 2021, REGARDING MEDIATION FOR THE SETTLEMENT OF CIVIL AND COMMERCIAL DISPUTES
The Federal Law No. (5) of 2021 regarding the amendment of some provisions of Federal Law No. 17 of 2016 regarding the establishment of conciliation and Mediation centers for civil and commercial disputes aims to enhance the competitiveness of the UAE for the global determination of doing business with comfort and peace of mind. By reducing the number of cases before the courts, and reducing litigation expenses , in addition to that it should determine the number of characteristics that the mediator must possess, before appearing in front of the competent court, and the procedures and conditions which are governing and implementing the mediation process.
Important amendments made to some definitions stated in the Law
First of all, the Federal Law No. (5) of 2021 regarding the establishment of conciliation and Mediation centers for civil and commercial disputes, had defined through the law approved by the Federal National Council through the Article No. (1), that “mediation” is an: optional and alternative means for amicable settlement of civil and commercial disputes that have arisen or that will arise between and among the parties of a legal relationship (contractual or non-contractual) and in which they use a neutral third party (the mediator), whether that reconciliation is judicial or non-judicial and is regulated by a special federal law.
The word “Conciliation” had been defined by the concerned law as: an alternative means of resolving disputes amicably between the parties that is resorted before filing the case or during its consideration in the court, and in which a third party (the Conciliator) is used to reach a reconciliation agreement signed between the two parties and binding on them.
In the text of the Article (1) of the law, it was stated that the phrase “Mediation and Conciliation Center” was replaced by the phrase “Conciliation and Reconciliation Center,” and the word “Mediator” was replaced with “Conciliator,” the word “Mediation” with the word “Conciliation” and the word “Conciliation” with the phrase “conciliation and reconciliation.”
Establishing mediation centers and their mechanism of work and referring to them
According to the Law No. (5) of 2021, the Minister or the head of the local judicial authority may establish special mediation and conciliation centers in the jurisdiction of the courts of first instance.
Responsibilities of Conciliation and Reconciliation Centers
According to the law, the competencies of the conciliation and reconciliation centers include disputes that fall within the value jurisdiction of Minor Circuits, in addition to disputes in which the parties are spouses or relatives up to the fourth degree, whatever their value, and the litigants, after filing the lawsuit, agree to resort to the centers for conciliation in civil and commercial disputes which fall within the value jurisdiction of Major Circuit in accordance with the provisions of Clause (2) of the Civil Procedures Law.
Prohibitions on the "Moderator"
The law prohibits the center, the mediator, the parties, and every participant in the mediation, from disclosing any information raised ,disclosed , share during the mediation procedures except the one with the consent of the parties, or in the event that it relates to a crime. Moreover , it is also prohibited for the mediator to accept the agency in a dispute against any of the parties on the subject of the dispute subject to mediation, even after the completion of the mediation procedures, as well as for the mediator to give testimony against one of the parties to the dispute in the same subject matter of the dispute subject to mediation, or what is branching out of it even after the completion of the mediation procedures, unless the person concerned authorizes him or the parties agree otherwise, unless the testimony is related to a crime, and finally that he plays the role of mediator in a dispute in which, one of the parties is a spouse or a relative with lineage or in marriage to the fourth degree.
Isolate and replace the conciliator
The law permits the supervising judge to dismiss the conciliator and replace him with other upon a request submitted by any of the parties, in the event that the conciliator is unable to perform the task entrusted to him or does not proceed or stops performing his task, which leads to a delay in the procedures and he did not also step down from it or if the mediator had a connection to any of the parties that might raise doubts about his impartiality.
We should also highlight on Federal Law No. (6) of 2021, regarding mediation for the settlement of civil and commercial disputes, which was issued on April 29, 2021, and its most important provisions were the following:
In the application of the provisions of this law, the following definitions were contained in it, which relate in their entirety to the concept of "mediation for the settlement of commercial disputes" by setting the following definitions:
Mediation has been defined as an optional and alternative means for amicable settlement of civil and commercial disputes that have arisen or that may arise between parties to a legal relationship, contractual or non-contractual, and in which they use a neutral third party (the mediator), whether judicial or non-judicial mediation.
The “mediator” was also defined as every natural or legal person entrusted by the parties with the task of mediation to resolve the dispute amicably between them, whether he was a private mediator or restricted to the lists of mediators at the center, which were defined as lists established by the center in which the names of the mediators registered with it are listed.
The law has dealt with the mediation agreement and its procedures. According to the law, the mediation agreement may be drawn up in copies thereof, that it precedes the existence of the dispute, whether it was independent by itself or contained in a specific contract regarding all or some of the disputes that may arise between the parties, and that it shall be after the dispute, even if it was established during the lawsuit. The mediation agreement shall be only concluded by a natural person who has the capacity to dispose of the rights or from the representative of the legal person authorized to conclude the mediation agreement, otherwise it is considered null and void. The mediation agreement does not end with the death of one of the parties or the expiration of his legal personality, and it may be executed in this case through or against the legal successor of that party, unless the parties agree otherwise.
The law has clarified that the competent court may issue a decision to refer the dispute for mediation at any stage of the lawsuit, whether upon a proposal coupled with the consent of the parties, or upon their request or in implementation of the mediation agreement. It also indicated that the court briefly mention in the referral decision to mediation data, including approval. The parties to resort to judicial mediation, and their undertaking to attend the specified sessions and to provide the appointed mediator with information and documents related to the dispute referred to mediation and the subject of the mediation, in addition to the duration of the mediation.
As stated in the law, the powers of the mediator, where the law recognized that despite the fact that the mediator does not have the authority to investigate, he might (by agreement with all the parties and for the purposes of mediation) listen to the third party subject to their consent, and the mediator has the right, to perform his work, to view the papers, documents, records, and all evidence and accept any evidence presented by him. He has the right to access to party’s data unless it is a violation of public order or morals without being bound by the laws of civil procedures, advocacy and evidence and their amendments referred to, and without being bound by the official working hours. The mediator may also seek the assistance of experts registered in the list of experts of the Ministry or local judicial authorities or who are agreed upon by the litigants in Settlement of disputes presented to him to provide technical expertise.
The law has created the possibility of "remote mediation", whereby, it authorizes the mediator to hold mediation meetings using electronic means and remote communication, in accordance with the control and procedures which are issued after a decision by the Ministry or head of the local judicial authority. It also regulates the "non-judicial" mediation procedures, by submitting a request from the parties to the dispute on a form prepared for that to the supervising judge, accompanied by the mediation agreement and any documents related to the subject of the dispute.
Mr. Ahmed Foud