Mediation, as an alternative dispute resolution (ADR) mechanism, holds significant promise for resolving conflicts swiftly and amicably. But in fact, Arab societies are often characterized by intricate social structures and cultural norms that emphasize reconciliation and communal harmony. Mediation aligns well with these values, offering disputing parties a platform to resolve conflicts while preserving relationships and avoiding the adversarial nature of litigation.
Moreover, the overburdened judicial systems in many Arab countries, including Lebanon, face challenges such as a backlog of cases and delays in adjudication. Therefore, it is necessary to give the mediator firm authority during the mediation process, but he finds himself unable to impose binding action because the law does not give him this authority.
Therefore, two questions become apparent when beginning to further examine this issue. Should the current mediation process remain as is without consideration of reorganizing? Or should steps be undertaken to further analyze and reorganize the mediation process? It’s important to note that the mediation process is an amicable means of settling disputes, aiming to reconcile the interests of the parties through a third person called a mediator. This person bears no authority toward parties, making them unable to impose any action(s) during the mediation process or issue binding decisions.
Therefore, the parties are controlling the mediation process from the beginning to the end, allowing them to withdraw from the process at any time. However, this will come with consequences, including an inability to assess the qualification(s) of the mediator along with their judgment in arbitration. Moreover, it is known that the arbitration clause is not affected by any invalidity, cancellation, or termination of the contract. Can the mediation clause be implemented in the case of the termination of the contract? We will try to answer these questions in light of the legislative vacuum in Arab mediation laws.
Does the mediator have the right to decide his power?
Although Arab legislation mentions the importance of amicable settlement of disputes, its guidelines regarding the powers of the mediator are general. While the mediation process mentions amicability in the settlement of disputes and highlights its significance, it is important to consider a significant vulnerability. The mediator may encounter incidents requiring a firm position on a particular matter. Due to the amicable and friendly nature of the mediation process, the mediator could potentially find themselves unable to make a binding decision or implement a legal basis for the action taken.
Among those incidents that may occur and hinder the mediation process is when a party questions the qualification of a mediator. The question to consider in this incident is: how can the mediator handle this and on what legal basis, considering the absence of a text in Arab mediation legislation, allows him to do so? If we go back to the French Civil Code, we find that the French Legislature referred to the Case for Reconciliation in Article 2044, which prompted some French jurisprudence to talk about “the strength of the case for reconciliation,” which means that the ruling or agreement has become final and enforceable, which can be implemented. On mediation, since, from our point of view, the mediation agreement has that force
As for the Moroccan legislature, it is stipulated in Legal Code 05-08 that regarding the mediation system, there are broad powers instilled in the mediator that are somewhat similar to those granted to the arbitrator. However, there is no mention of the mediator’s authority to decide on jurisdiction. The concept of mediation, which was founded by the American Judiciary System, cannot be surrounded by the rigidity of rulings. This would allow any party with ill intentions to abuse this method with the aim of obstructing the work of the mediator.
Therefore, for one of the parties not to protest, perhaps in bad faith, that the mediator does not have jurisdiction to consider the dispute, it is necessary to work into the Arab mediation laws, including the Judicial Mediation Law in Lebanon, to grant the mediator powers to consider his jurisdiction if this argument is raised.
In this context, Professor Thomas Clay, a lawyer, arbitrator, and professor at Sorbonne University, explains in one of his studies (arbitration in France of 2016, Arbitration and Alternative Methods of Dispute Resolution and Reconciliation in the Twenty-First Judiciary Law, Law No. 1547 of 2016), that French law gives the two parties a wide scope to find an amicable solution to the dispute, even if the case is before the judiciary. Professor Clay adds that we must always work continuously to reach an agreement because participation in finding an amicable solution to the existing dispute between the parties is not intended to be a prior measure but rather as an “another” lawsuit, which is actually an “alternative” lawsuit.
Therefore. The term “continuing to try to reach an agreement” means that mediation should not be left entirely to the will of the parties. Rather, the role of the mediator must be expanded if one of them tries to obstruct the mediation by considering him unqualified to consider the dispute. So, we call on the Lebanese legislature and Arab legislators to grant the mediator the power to decide within his jurisdiction, like the arbitrator, with the aim of preserving the advantages of mediation and so that one party does not obstruct the mediation process.
Is the mediation clause independent from the original contract?
The Arab mediation laws [1] stipulate cases of termination of mediation, but neglect to mention the invalidity of the original contract as a reason for terminating mediation. The contract may include a mediation clause and an arbitration clause, and then this contract terminates for any reason. The principle is that one of the two parties to the contract must present the subject of the dispute to mediation as an alternative means before any other means. However, the question remains: can the mediation clause or agreement in effect cancel or terminate the contract?
There is a legal principle that says, “He who can do the most can do the least.” If we apply this principle to any dispute, we find that the trend of the will of legislators and parties to grant the arbitration clause independence from the original contract indicates that this will also extend to the mediation clause, given that mediation and arbitration are both an alternative means of settling disputes, which requires protecting mediation against any emergency affecting the contract.
To clarify this, the subject of the mediation clause differs from the subject of the original contract, as the latter regulates the relationship between the parties of the contract, while the mediation clause is concerned with resolving the dispute or disputes that both parties agree to refer to mediation. Therefore, given the flexibility that mediation characterized and to achieve the desired effectiveness, as it is an existing independent means of settling disputes, it is necessary for the Arab legislature to work on the independence of the mediation clause from the original contract.
In conclusion, radical legislative changes are recommended with regard to the mediation process. The focus of these changes should be to maintain stability in contractual relations through long-lasting amicable solutions. Additionally, special emphasis must be placed on granting the mediator firm powers to enable them to avoid any obstruction attempts while carrying out their legislative responsibility.
[1] Article 19 of the Lebanese Judicial Mediation Law, Article 9 of the Convention Mediation Law, Article 16 of the UAE Mediation Law, and Article 9 of the Jordanian Mediation Law.