Alternative Dispute Resolution (ADR): Arbitration Part V – Mediation as an Alternative to Arbitration

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Is Mediation A Good Alternative To Arbitration?


Mediation provides an alternative to arbitration utilizing an independent third party to facilitate agreement.

Conciliation may also be considered being similar to mediation but also allowing the third party to propose a solution(s).


Arbitration represents one method of alternative (non-litigation) dispute resolution (ADR); others include mediation and conciliation. Each also provides a private method of dispute resolution and is consensual in nature.

Mediation provides a means by which to resolve a dispute by utilizing an independent third party to facilitate agreement between the parties. Conciliation is similar but also allows the third party to propose a solution which the parties may accept or reject. The outcomes from both mediation and conciliation must be recorded in a contract to then become binding on the parties.

The benefits of mediation include, like arbitration, flexibility and control over the manner and process in which mediation is conducted.

Mediation can (by agreement) be quite informal, quick and cost effective. A key benefit is the involvement of the parties in the outcome(s). As these will be developed by the parties themselves (with assistance from the third party), the outcome(s) is more likely to be a commercially focussed and more applicable to the situation. The outcome will be mutually agreeable to the parties based on a win-win (albeit with compromises from both parties) rather than win-lose outcome thereby leading to higher compliance by both parties having been negotiated rather than imposed. The process may also lead to alternative outcomes being identified and agreed.

The main disadvantage of mediation is that there is no guarantee that the dispute will be resolved. Agreement and settlement of the dispute between the parties is voluntary and there is potential for the process to be exploited to prolong the dispute and as a means by which to defer arbitration or litigation proceedings.

The decision as to whether to adopt a mediation process will be largely dictated by the nature of the dispute (i.e. is it capable of being resolved through discussion/negotiation) and the parties willingness to actively engage in the process. If neither is apparent then arbitration or litigation may be a more effective means by which to resolve the dispute.

Alternative Dispute Resolution (ADR): Arbitration Part IV – Challenging An Arbitration Outcome


What Can I Do If An Arbitration Award Is Made Against Me?


A final arbitration award is final and cannot be appealed in terms of its content.

A losing party can challenge the award on limited, largely procedural grounds and within a very limited time.


As a general rule, a final arbitration award is final and cannot be appealed in terms of its content. However, a losing party can challenge the award on limited, largely procedural grounds and within a very limited time. Such a challenge can be made either before or when the winning party seeks recognition and enforcement of the award through a court.

In making such a challenge, the party can seek to have the award (a) nullified, (b) set aside (in whole or part), (c) varied or (d) remitted back to the Tribunal. UNCITRAL[1] Model Law refers to such a challenge as having ‘recourse’ against an award.

Article 34 of the Model Law sets out the grounds for setting aside an award prior to enforcement. Similar grounds are set out in Article 36 for challenging an award when the winning party seeks enforcement of the award through a court. These grounds are also set out in Article V of the New York Convention[2].

These grounds cover jurisdictional and procedural issues and include (i) incapacity of a party to the arbitration agreement, (ii), inadequate notice of proceedings or a party is prevented from presenting their case, (iii) the decision exceeds the authority or scope of the dispute, (iv) irregularity in arbitral proceedings, (vi) the subject matter is not capable of settlement under the law of the State and (vi) the award is in conflict with the public policy of the State.

An application for setting aside made under Article 34 must be made within 3 months from the date that the party receives the award or, in the case where an award has been corrected or request for interpretation addressed, then the 3 month time limit runs from the date upon which the Tribunal has disposed of the correction or interpretation.

[1] UNCITRAL (United Nations Commission on International Trade Law –

[2] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards – (the ‘New York Convention’)

Alternative Dispute Resolution (ADR): Arbitration Part III – Arbitration Process

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What Process Does An Arbitration Follow?


The steps in the arbitration process, requirements and time periods for each will generally be determined by the rules of the arbitration body or institution.

The parties to the dispute can make proposals in relation to the place, language and applicable law.for the conduct of the arbitration.


The main procedural steps for an arbitration are as follows:

Step 1 – Request for Arbitration

To commence an arbitration, a party (Claimant) must submit a written Request for Arbitration (Request) to the appropriate arbitration body or institution. The institution’s rules will specify the required content for such a request which will include a description of the dispute and relief sought as well as party arbitrator nominations together with supporting papers required (eg copy of arbitration agreement).

The Request may also include a Statement of Claim (Claim) together with proposals relating to place, language and applicable law.

The Request must also be accompanied by the required registration fee otherwise the request will be deemed invalid.

The date that the request is received usually determines the date upon which proceedings have commenced.

On receipt of the Request, the institution will forward a copy to the Respondent.

Step 2 – Answer to the Request & Counter-claims

The Respondent will have a period of time (normally capable of extension) from receipt of the Request within which to submit an Answer to the Request (Answer) and may, at the same time, submit a Counter-claim. The institution’s rules will set out the required content for the Answer (including preliminary comments on the dispute and relief sought as well as arbitrator nominations). The Answer should also contain any objection to the validity of the arbitration agreement and comments on the Claimant’s proposals relating to place, language and applicable law.

If the Request included a Claim then the Answer may be accompanied by a Statement of Defence (Defence). In addition, the Answer may also be accompanied by a Counter-claim (to include a description of the dispute and relief sought) and, if a Counter-claim is made, then this must be accompanied by the required registration fee to be valid.

On receipt of the Answer, the institution will forward a copy to the Claimant who will be provided with the opportunity to comment on ‘objections or pleas’ made by the Respondent.

Step 3 – Statement of Claim

Unless submitted with the Request, the Claimant will have a period of time from notification of establishment of the Tribunal to submit a Statement of Claim to the institution. The required content will be specified by the arbitrating body which will include a comprehensive statement of facts and legal arguments supporting the Claim together with relief sought.

Step 4 – Statement of Defence

The Respondent will be required to submit a Statement of Defence within a specified period from receipt of the Statement of Claim or notification of establishment of the Tribunal. The required content will be specified by the arbitrating body which will include any Counter-claim.

Step 5 – Further Written Statements

The Tribunal will have discretion to allow further written statements to be submitted allowing each party time to consider and respond to further arguments. If a Counter-claim is submitted by the Respondent, the Claimant will have a time period within which to respond.

Step 6 – Hearing

Either party may request that a hearing be held to enable oral arguments to be made and/or witness (including expert witness) evidence to be considered.

Step 7 – Closure of Proceedings

An Arbitrator or Tribunal will close proceedings only when satisfied that the parties have had adequate opportunity to present submissions and evidence.

Step 8 – The Award

The Arbitrator or Tribunal will be required to make its final Award within a specific time period from the date that the Arbitrator or Tribunal Chairman receives the file. The period may be extended by the Arbitrator/Tribunal or by the arbitrating institution.

The parties may also agree to adjust the time limits for the Award.

Alternative Dispute Resolution (ADR): Arbitration Part II – Arbitration Law and Rules


What Law and Rules Govern Arbitration Proceedings?


UNCITRAL Model Law and Arbitration Rules[1] provide an industry benchmark for the conduct of arbitration proceedings.

Even where these are not fully adopted by an arbitration institution, ‘the Rules’ normally provide the starting point for individual institutional rules.  


The law and rules applicable to arbitration collectively govern the entire arbitration process and also provide the arbitrator(s) with the necessary powers to act. In both cases, these deal with procedural issues only.

The UNCITRAL Model Law and Arbitration Rules (‘the Rules’[2]) provide an industry benchmark and, even where not fully adopted by an institution managing an arbitration, these have been influential on the drafting of institutional rules.

Taking ‘the Rules’ as an example, these provide procedural rules and conduct for an arbitration and regulate the following key areas:

  • Introductory Rules – including notices and representation (this section also includes a model arbitration clause)
  • Composition of the Arbitral Tribunal – including number, appointment and replacement of arbitrator(s)
  • Arbitral Proceedings – including place, language, procedural steps, experts and default
  • The Award – including interpretation, correction and costs

A set of rules provides the necessary structure and framework for the conduct of the arbitration for all steps from commencement of arbitral proceedings through to notification of the final award.

[1] UNCITRAL (United Nations Commission on International Trade Law – (1) UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission 1985, amended 2006 and (2) UNCITRAL Arbitral Rules adopted by the United Nations Commission 1976, amended 2010

[2] UNCITRAL (United Nations Commission on International Trade Law – (1) UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission 1985, amended 2006 and (2) UNCITRAL Arbitral Rules adopted by the United Nations Commission 1976, amended 2010

Alternative Dispute Resolution (ADR): Arbitration Part I – What Is Arbitration?

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How does arbitration differ from going to court?


Arbitration is a process by which parties seek to resolve a dispute by utilizing an independent third party to determine the case.

It is a formal, binding process with outcomes enforceable in court.


Arbitration is a private dispute resolution process where a dispute is resolved by an award made by an independent third party or tribunal panel following the presentation of statements and case material by each party.

It is a formal process subject to rules and laws of arbitration (eg UNCITRAL[1]). It is also a binding process, the outcome(s) being not only enforceable in courts of law but the parties cannot raise the same issue again in further proceedings. In many cases, enforceability is not limited territorially following the New York Convention[2].

An arbitration award is final and may only be challenged (not appealed) on limited, largely procedural, grounds and within a very limited time. However, an arbitration award is not self-enforcing. It requires either the losing party to comply with the decision voluntarily or the winning party to apply to a court for enforcement.

Arbitration is a consensual process chosen by the parties as a means by which to resolve disputes. Agreement to arbitrate disputes must be provided for in writing and is normally included within the business contract between the parties. This should state the appointing authority, tribunal composition, place, language and rules to be applied to regulate the conduct of the arbitration.

A key difference between arbitration and litigation lies in the parties’ ability to control and manage many aspects of the arbitration process. This includes agreement on choice of arbitrator(s), time and place of hearings, language, method of presentation and nature of representation.

The above enables the parties (by agreement) to tailor the arbitration to meet their requirements which can make arbitration a quick, flexible and cost effective (although legal aid is not available) method for resolving disputes. As a result, the outcomes from arbitration are also likely to be more predictable.

By contrast to the above, litigation is non-consensual and, if adopted, the parties cannot choose the judge, hearing date, location or procedures to be followed. In addition, as court hearings are generally public, the parties cannot keep the dispute private. A party also cannot prevent the outcome from being appealed and, importantly, the parties are less able to control the costs of resolving the dispute.

Unlike litigation, arbitration is a stand-alone process specific to the individual dispute. This means that an arbitration award does not form a precedent nor is an award decision required to follow any such precedent. Being private between the parties, another party cannot be joined into the process (as with litigation) unless both parties agree to this.

Do I have to arbitrate rather than go to court?

Most modern contracts now include arbitration provisions.

Under UNCITRAL Model Law, a court may only hear the matter if it finds that the arbitration agreement is ‘null and void, inoperative or incapable of being performed’.

A national court is also limited in terms of its involvement or intervention with the arbitration process (referred to as ‘exclusion of national courts’). Where an arbitration agreement is in place, the court must not hear any matter that is capable of being determined by arbitration (arbitrable dispute).

If a party to an arbitration agreement commences legal proceedings on an arbitrable dispute then the other party may apply to the court to order the parties to deal with the matter by arbitration.

[1] UNCITRAL (United Nations Commission on International Trade Law – (1) UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission 1985, amended 2006 and (2) UNCITRAL Arbitral Rules adopted by the United Nations Commission 1976, amended 2010

[2] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards – (the ‘New York Convention’)

Alternative Dispute Resolution (ADR): Mediation Part II – The Opportunity for Mediation of Property and Construction Disputes in the UAE

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Is there an opportunity to develop mediation as an Alternative Dispute Resolution (ADR) process for the resolution of property and construction disputes in the United Arab Emirates (UAE)?


Mediation Part I identified the key elements to the mediation process including both the advantages and disadvantages of this approach to dispute resolution.

Mediation Part II now seeks to identify both the opportunity for and challenges facing the introduction of mediation as an ADR process in the Region.

Although these notes focus on the UAE, many of the issues addressed will be equally applicable to other locations throughout the Middle East.


To enable the opportunity for mediation of property and construction disputes to be considered, a number of key characteristics of the UAE (and wider Middle East) market need first to be understood. These include culture (including religion), business ownership and custom, legal framework as well as market opportunity.

The UAE, like most countries in the Middle East, is a Muslim country and the majority of business must have regard, either directly or indirectly, to Shari’ah the code of conduct or religious law of Islam. Fortunately, the binding principles of Shari’ah are supportive of mediation as a process. In particular, under Shari’ah Law, parties are required to honour their agreements and to seek amicable, consensual settlement of disputes with outcomes that are fair and just. There is therefore no barrier to mediation under Shari’ah Law. On the contrary, there is support for mediation as a process for resolving disputes. This is important as any conflict with Sharia’h Law would prevent mediation being promoted at either an individual or business level.

In the UAE, business ownership and licensing requires, except in free trade zones (e.g. Dubai International Financial Centre (DIFC)), businesses to comprise at least 51% local Emirati ownership. In some cases, this will take the form of sponsorship, providing little more than a local ‘sleeping partner’. In other cases, the local partner will take an active interest in all business matters and, in particular, key decisions. In addition, there are also a number of key ‘family businesses’ (wholly owned by Emiratis) including those controlled by the extended Royal Family in each Emirate.

At a day to day level, the majority of business in the UAE relies upon an expatriate workforce. However, in most cases, the final decision maker will be local Emirati. Arab nature is generally non confrontational with individuals actively seeking to avoid conflict in both their personal and business lives. Unfortunately, within this culture the avoidance of taking decisions is also prevalent thereby making the pace of business sometimes quite slow.  Often key decisions (including the resolution of disputes) are taken outside the normal Western business area (i.e. the office) between Emiratis in the majlis. Confidentiality and the avoidance of bad publicity are key drivers for this approach and non-Emiratis will generally not be present.

The understanding of this business framework and culture is important when seeking to promote any new business idea or approach in the UAE and particularly relevant to mediation where active involvement of the parties (with authority to settle) is a pre-requisite.

The UAE operates under a civil law jurisdiction. This is important when considering mediation as it is unlikely that the principle of “without prejudice” will apply thereby potentially leaving a party exposed in later proceedings.

The UAE also operates a legal framework comprising a federal court system which applies to five of the seven Emirates (Dubai being a notable exclusion) but which is not fully integrated into the federal judicial system. Each Emirate has its own secular and Islamic courts with all proceedings conducted solely in Arabic.

At a business level, the legal system is therefore considered to be time consuming, costly and unreliable. This provides an opportunity for mediation as an alternative to litigation.

Both Abu Dhabi (Abu Dhabi Commercial Conciliation & Arbitration Centre) and Dubai (Dubai International Arbitration Centre) have established alternative dispute resolution offerings. Currently, these are primarily focussed on arbitration. The Royal Institution of Chartered Surveyors (RICS) and Chartered Institute of Arbitrators (CIArb) – the two key professional bodies in the field of property and construction dispute resolution – are also both well established in the region. The promotion of mediation, as an alternative, will therefore be into a market that already understands the principle of alternative dispute resolution (ADR) mechanisms. See also my earlier post: Arbitrating Property Disputes in the UAE

A major part of the growth in the UAE economy has been driven with the support of real estate, construction and infrastructure projects. The UAE saw a phenomenal growth in the number of such projects prior to the recent and ongoing global economic crisis. Unfortunately, this now leaves the UAE with an increasing number of disputes post crisis as parties scrutinize (often weak) legal contracts for opportunities to protect their position in a significantly weaker economic climate. The market opportunity for mediation as a confidential (this is key) dispute resolution process is immense.

In spite of the rapid growth in the real estate sector, the UAE property (and business) market remains quite immature. All business tends to operate on a two-tier basis – expatriates at one level, Emiratis (including Government) at another level. For any new initiative, separate approaches will be required for each taking into account the business and cultural differences.

So, is there an opportunity? Undoubtedly, yes! The real question is: how can the use of mediation be developed in the Region for the resolution of property and construction disputes?

Let’s see how things unfold …

Alternative Dispute Resolution (ADR): Mediation Part I – The Mediation Process

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Mediation is a voluntary, non-binding, private dispute resolution process.


Mediation provides a means by which parties may seek to resolve a dispute by utilizing an independent third party to facilitate agreement.

It differs from both litigation and arbitration in that the mediator is not appointed to make a judgement but to assist the parties in reaching a settlement to the dispute that is satisfactory to both/all.


To be successful, the parties to the dispute must firstly agree to mediate and then participate in the process.

The key factors of:

  • Privacy – as nothing declared within the mediation may be disclosed by the mediator to the other party without consent or by any party to the outside world, and
  • Non-binding nature of the process – by which nothing is agreed unless and until documented in the Settlement Agreement

provide the parties with the freedom to explore opportunities to resolve the dispute without risk. Parties may disclose information, express views and suggest both concessions and potential settlement frameworks to the mediator safe in the knowledge that this will not be declared to the other party unless express consent is given.

Where the doctrine of “without prejudice” (common law jurisdiction) applies, this principle will also apply to the mediation process. This means that if settlement is not reached and the matter is taken to litigation then the parties will not be precluded from arguing a different position in court from that taken during the mediation process.

Mediation offers further benefits to the parties:

  • The process is generally both quicker and cheaper than going to court
  • It enables relationships between the parties to be maintained, and
  • It facilitates settlement based on the needs of the parties rather than their legal and/or contractual rights enabling solutions to be found which would not be available through the courts.

Mediation also has the added benefit of not creating any precedent.

Essentially, the mediation process empowers the parties to a dispute. Unlike litigation (or arbitration) the outcome will not be imposed but agreed by the parties. This ownership and responsibility for settlement means that the outcome is more likely to be accepted by both parties enabling them to ‘move on’ from the dispute.

In many cases, the introduction of the mediator as a neutral third party in itself provides the necessary energy to act as a catalyst for settlement. After each party has presented their case in open forum separate, private discussions between the mediator and each party will identify opportunities for resolution which hopefully lead to an amicable settlement that can be captured in a legally binding Settlement Agreement.

Mediation is not appropriate for all disputes.  For example, if the nature of the dispute relates to a point of law then mediation would not assist the resolution of the matter. Mediation can also be seen as an additional, rather than alternative, dispute resolution procedure – with associated additional costs – where a satisfactory resolution is not achieved and the matter must still be taken to court.  In addition, if a party fails to follow through on their obligations set out in the Settlement Agreement then the other party will need to seek enforcement through the courts.

Mediation, as a commercial dispute resolution process, also requires the right culture and business environment to be successful.

Arbitrating Property Disputes in the UAE

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Arbitration is growing in popularity and now there is increasing emphasis on getting access to arbitrators who are experts in the subject matter


Arbitration, as one form of Alternative Dispute Resolution (ADR), is growing in importance as a way to resolve property and construction disputes in the UAE. As a business community, the UAE is actively supporting arbitration as an alternative to litigation in the courts.

Using arbitrators who are experts in property and construction can reduce costs and ensure arbitral awards are based on commercial realities that the parties understand and can more readily accept.


There is a real commitment to arbitration as an alternative to litigation in the UAE and this is evidenced by the fact the UAE is a signatory to the New York Convention on Arbitration Awards. There are clear signs too that the UAE has been rapidly improving access to arbitration by creating modern arbitration institutions and developing rules which draw on  best international practices.

Under the UAE legal system, a contract which contains an agreement to arbitrate a dispute is binding on the parties and no party can withdraw from such an agreement unilaterally. When arbitral proceedings are completed and an award has been issued, that is the end of the matter and parties may not take the same dispute on appeal to the courts.

The fact that the UAE is a member of the New York Convention on Arbitration Awards sends out a clear signal that the UAE will ensure that the courts support the decisions of arbitrators. It also reinforces the international status of awards made by arbitrators in the UAE. The Dubai International Arbitration Centre (DIAC) says that “arbitral awards made under DIAC have the same effect as final and conclusive judgments awarded by courts under the law” and “as a result of the UAE’s active participation in several regional and bilateral treaties, its arbitral awards are enforceable in many neighbouring Arab states, in addition to other countries worldwide.”

It is evident that, over the last few years, the courts have become increasingly supportive of arbitration, and are indeed leading the development of arbitration in the UAE. For example, the UAE courts have ruled that arbitration clauses are separable from the rest of a contract. This has been incorporated into the rules of UAE arbitral institutions and it means that parties cannot argue that an arbitration clause is no longer valid because the rest of the contract has been terminated. In making this ruling, the UAE courts have confirmed a principle that exists in other countries where arbitration is used viz that an arbitrator has the authority not only to determine his own jurisdiction, but also the validity of the contract which gives rise to his appointment in the first place.

Figures currently provided by DIAC reveal that the number of arbitrations taking place in Dubai has increased year on year since 2007. Interestingly, and perhaps unsurprisingly, the subject matter of the majority of disputes has been real estate. The increasing use of arbitration to resolve real estate disputes is crucial to business confidence in this sector and the continuing emergence of the UAE as the regional commercial centre for the Middle East.

As the number of property disputes increases, we are seeing more and more businesses choosing arbitration over slow and costly litigation. Whilst some people may argue that arbitration can be expensive, in reality it can offer a far more cost-effective and expeditious resolution than the courts. This is particularly so if the arbitrator has a great deal of experience and knowledge of the subject matter, understands the issues and arguments put forward by the parties in detail and so can deal with the arguments and evidence quickly and efficiently.

There are many other advantages to using arbitration instead of litigation. In arbitration, parties have a greater degree of freedom over the proceedings and timetable. Unlike court hearings, arbitration allows parties to resolve their disputes privately. But perhaps the most significant advantage of arbitration is the fact that parties can choose their arbitrator.

The Royal Institution of Chartered Surveyors (RICS) sets, maintains and monitors high quality standards for its Members (Chartered Surveyors). The RICS is therefore able to guarantee that Chartered Surveyors who take on arbitration appointments are both experts in the subject matter of disputes and are regulated according to the highest international professional standards.

The RICS has a well-established process of training and accrediting Chartered Surveyors to be arbitrators for real estate and construction disputes. A small number of Chartered Surveyor arbitrators based in the UAE have recently been assessed and accredited by the RICS. They are the beginnings of a panel which will grow over time.

Moving forwards, the RICS will be working closely with the UAE government and courts to assist the further development and growth of arbitration in the region. The objective is to help ensure that parties will be able to easily access experienced arbitrators who have deep understanding of property and construction disputes and who can provide an internationally recognised level of cost-effective and expert arbitration.

An abridged version of this article first appeared in the RICS UAE National Association Annual Review 2012-2013 – see Publications.