The Role of Mediation in the DIFC Courts

Published with the kind permission of the author – Natasha Bakirci, Assistant Registrar – Dubai International Financial Centre Courts

DIFC logoLondon, 5 January, 2015.

The DIFC Courts, Dubai’s commercial and civil common law jurisdiction, were established in 2006 to hear disputes concerning the Dubai International Financial Centre and those doing business in, with or from the Centre. The Courts’ jurisdiction was later extended by Dubai Law No. 16 of 2011, which amended Law No. 12 of 2004 and allowed for external parties to opt-in to the Courts’ jurisdiction in writing either before or after a dispute has arisen[1]. Mediation already plays a role in the Courts’ procedure and it is envisaged that there will be more of a focus on encouraging early settlements of disputes in the future.

The Small Claims Tribunal (SCT)

The Small Claims Tribunal (SCT) of the DIFC Courts, which drew inspiration from the Singaporean model, features a formal session of mediation as part of its procedure. Claims with a maximum value limit of 500,000 AED (UAE Dirhams) can be considered by the SCT if both parties agree, or in the context of employment related matters without a value limit provided both parties agree in writing to the SCT’s jurisdiction [2].

Approximately 90% of applications before the SCT settle at the “consultation” phase which is a mandatory Court–guided mediation session. Only if the parties are unable to reach a settlement will a judge of the DIFC Courts go on to hold a hearing and deliver a Court judgment. SCT proceedings are confidential and parties are not normally legally represented.

Part 27 of the Rules of the DIFC Court (RDC) on Alternative Dispute Resolution 

Mediation is also provided for in Part 27 of the RDC which makes provision for Alternative Dispute Resolution, which was previously referred to by the term “Justice by Reconciliation” (JBR) prior to the amendment of the RDC in April 2014[3].

RDC Part 27.1 emphasises the Courts’ “primary role as a forum for deciding civil and commercial cases” whilst encouraging “parties to consider the use of alternative dispute resolution (such as but not confined to mediation and conciliation) as an alternative means of resolving disputes or particular issues.” RDC Part 27.2 highlights that alternative dispute resolution can significantly help parties to save costs, save parties the delay of litigation, enable parties to achieve settlement of their disputes while preserving their existing commercial relationships and market reputation, provide parties with a wider range of solutions than those offered by litigation and would also contribute to the more efficient use of judicial resources. Part 27 provides for judges to invite parties to consider whether their disputes could be resolved through alternative dispute resolution, either at the Case Management Conference stage or at another juncture if deemed appropriate. Furthermore, legal representatives are exhorted to consider with their clients and the other parties concerned, the possibility of attempting alternative dispute resolution and to ensure that their clients are fully informed as to the most cost effective means of resolving their dispute[4]. Despite ample provision being made in the RDC for alternative dispute resolution, there are few examples of Part 27 being implemented in practice. Specific case examples in which Part 27 of the RDC has been used include, inter alia,  the case of Dr Aziz Kurtha v. Bin Shabib & Associates (BSA) LLP & ORS (CFI 004/2008) Order of 19 January 2009 on Mediation – Justice by Reconciliation, in which Sir Anthony Colman ordered the parties to select a neutral mediator and to “take such serious steps as they may be advised to settle their dispute by JBR”; and a number of Court case management orders including that of H.E. Justice Shamlan Al Sawalehi of 2 June 2014 in the case of BGC Brokers L.P. v. Mourad Abourahim (CFI 027/2013) where the parties were ordered to exchange lists of three neutral individuals who were available to conduct ADR procedures by a certain date, and subsequently to in good faith endeavour to agree a neutral individual from the lists so exchanged and provided.

The Establishment of the Dispute Resolution Authority (“DRA”)

Dubai Law No. 7 of 2014, amending Dubai Law No. 9 of 2004, which was issued on 21 May 2014 established the Dispute Resolution Authority (“DRA”). The DRA will comprise of the following entities: (i) the DIFC Courts; (ii) the Arbitration Institute; and (iii) any other tribunals or ancillary bodies established in accordance with Article 8 (5) (b) of this Law, which empowers the Chief Justice of the DIFC Courts in his new role as Head of the DRA to set up such ancillary tribunals and establishments. There is discussion at the current moment as to whether this might allow for Court-ordered mediation through the eventual establishment of a DIFC Mediation Centre, which would in fact form part of the DIFC Arbitration Institute.

A potential future DIFC Mediation Centre 

Singapore, which the DIFC Courts often looks to as an exemplary common law system has its Singapore Mediation Centre (SMC). The SMC was established in 1997 to promote and facilitate the settlement of disputes through alternative dispute resolution. The SMC is a not-for-profit organisation structured as a company limited by guarantee by the Singapore Academy of Law. The DIFC Courts are currently considering the creation of a separate DIFC Academy, very much akin to the Singaporean model, which would cover all of the DIFC Courts’ activities which are not specifically related to litigation. As the Courts’ caseload increases, it may well be that certain cases which a judge feels would be suitable for an attempt at settlement would be sent for mediation before the Court would consider entertaining an application. This would achieve a number of the purposes set out in RDC 27.2 cited above.Continue Reading

Welcome to Our Brand New Brick Court Mediators’ Blog and Merry Christmas – please take a look around

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Bill Wood: a nightmare returns

paperstackIn common with many other advocates I used to have a recurring nightmare in which I walked into a court and was expected to address the judge while knowing absolutely nothing about the case.[1]

One night last week, after an interval of several years, the nightmare returned. I was apparently instructed to bring a claim against the makers of a well-known luxury car brand.

They for their part, unfairly as it seemed to me, had instructed the legendary Barcelona striker Lionel Messi to represent them. (He had added silk to his numerous other trophies). In the event the hearing went surprisingly well. So well indeed that we seemed to be moving on to quantum issues when I woke up.

But I digress.

The question is: why has the nightmare returned?

The best I can come up with is that it reflects the increasing tendency of parties (or rather their lawyers) to demand from me as the mediator more engagement with and more technical analysis of the legal issues.

Bluntly I’m being put on the spot. Recently two parties amended my mediation agreement to require me (the usual wording merely “permits” me) to express my views on the merits of their respective positions at the end of the mediation day if the case had not otherwise settled.

The case didn’t settle. Frank appraisals took place. As far as I could tell I left the building cordially disliked by both sides. But the following day both parties told me that the assessments had been a good platform for my continued attempts to settle the case.

The process continues. We shall see.Continue Reading

Singapore International Mediation Centre Launched


Singapore 5 November – Brick Court mediators John Sturrock QC and Geoff Sharp participated in the launch of the Singapore International Mediation Centre this week.

With an audience of over 100 government officials, academics, company representatives, legal advisers and mediators from all over South East Asia present, the pair posed a number of provocative questions about the practice of mediation and how practitioners can continue to improve it.Continue Reading

Groupement Européen des Magistrats pour la Médiation

Nicholas_Chambers_QC

Brick Court Mediator, HH Nicholas Chambers QC, writes: Groupement Européen des Magistrats pour la Médiation (“GEMME”) celebrated its 10th anniversary in early June with a symposium called “Un Chemin de Paix Pour la Justice en Europe”. Over two hundred people took part in a grand occasion held over two days in the courts on l’Ȋsle de la Cité in Paris. Contributions were made by the First President of the Court of Cassation, a distinguished representative of the French Ministry of Justice as well as senior judges and ministers from a number of states including Sir Alan Ward and Sir Gavin Lightman. All this was in addition to more specialist involvement.Continue Reading

Tony Willis introduces one of America’s leading scholars in dispute resolution

Tony-introduces-TomOne of America’s leading scholars in the dispute resolution realm was introduced by Brick Court Mediator, Tony Willis at a series of talks in New Zealand in late September.

Tom Stipanowich is a professor of law at Pepperdine University, where he is the William H. Webster chair in dispute resolution and the executive director of the Straus Institute for Dispute Resolution as well as being a noted authority on the art of mediation and Hollywood.

Tom was co-author, with Ian Macneil and Richard Speidel, of the groundbreaking five-volume treatise Federal Arbitration Law: Agreements, Awards & Remedies Under the Federal Arbitration Act. The book has been cited by the Supreme Court and many other federal and state courts, as well as being named Best New Legal Book by the Association of American Publishers.

Speaking at the Victoria University of Wellington and an AMINZ Wellington breakfast meeting before going to Auckland to speak at the Law School and Bankside Chambers Tom and Tony spoke on  “Mediation from the Inside Out: Insights from an International Survey of Experienced Mediators” and “International Mediation and Conflict Management:  Near a Tipping Point?”

BC’s Own John Sturrock in a Master Class with William Ury

On 4 September, Core Solutions sponsored a Master Class with William Ury for Collaborative Scotland’s Day of Dialogue.

Catering for growing demand for dispute resolution services in Asia

The Singapore International Mediation Centre is scheduled to open in November 2014 to provide international commercial mediation services with the support of the government.

The Centre will have an international board and commercial mediators from around the world will be asked to join its panel. Brick Court mediators have already been approached to join the Centre’s international panel.

The Singapore International Commercial Court will be a division of the Singapore High Court and have a number of attractive features such as hearing submissions on any law, rather than just Singapore law and allowing  foreign lawyers to appear.

In addition to the well-established Singapore  International Arbitration Centre, these two institutions will meet the growing demand for neutral venues in which to  resolve cross-border disputes making Singapore a multi door dispute resolution centre for international commercial disputes.

Initiating Litigation Isn’t Refusing Mediation If Other Party Hasn’t Sought It

A mediation provision in a real estate contract required a party who refused to mediate and then lost in litigation to pay the other party’s attorneys’ fees.

A US Federal Appellate Court, however, concluded that there must be a request for mediation before there could be a refusal; simply filing the litigation was not sufficient to prove a refusal to mediate. Accordingly, since the defendant who prevailed in the litigation had not sought to mediate, the plaintiff had not refused and was not responsible for paying defendant’s attorneys’ fees.
Thompson v. Cloud, Nos. 13-1120, 13-1121 (U.S.C.A. 1st Cir., August 20, 2014)

Who’s Who Legal Recognise Brick Court Mediators As Some Of The Most Highly Rated in the World

In August 2014 WHO’s WHO LEGAL recognised 298 of the world’s leading commercial mediators, saying each should be considered to be among the outstanding experts in their jurisdiction.

As part of the list of 298, Who’s Who also selected the 10 most highly regarded commercial mediators in the world and incredibly four Brick Court mediators featured in that top 10 list both 2013 in 2014.

“Several members of the UK Bar stand out for the quality of their mediation practices, and Brick Court Chambers is home to some of the most highly rated practitioners in the world.

Tony Willis is “part of the aristocracy” and a “premier league mediator”. Former managing partner of Clifford Chance, he is a three-time winner of our Mediator of the Year Award and has conducted more than a thousand mediations in relation to areas such as professional negligence, boardroom disputes, construction and insurance for clients such as corporates, individuals, government departments and regulators.

William Wood QC is said to be “at the top of his game, absolutely superb”. Interviewees say he is “always well prepared, and inspires the confidence of solicitors and clients alike.”

Stephen Ruttle QC is “first-rate” and has successfully mediated many hundreds of disputes, some of which involve billions of pounds.

Clients would go to Geoff Sharp “10 times out of 10”. A door tenant at Brick Court, he has conducted over a thousand mediations in New Zealand and worldwide, and is one of the most highly rated individuals on our international research.

John Sturrock QC of Core Solutions Group in Edinburgh was also announced as a Brick Court door tenant in May 2013, and is “internationally recognised as a major player in this area”.”