Commentary on Mediation Law No. 20 of (2021) for the Settlement of Commercial and Commercial Disputes
At the end of October of the year 2021, His Highness Sheikh Tamim bin Hamad Al Thani, Emir of the State of Qatar, issued Law No. (20) of 2021 regarding mediation in the settlement of civil and commercial disputes. This is part of a series of legislation regulating litigation procedures and ending problems that arise through commercial, civil and other transactions as soon as possible, in order to facilitate litigants; to activate the role of alternative methods of ordinary litigation through the courts, which will reflect positively on the labor market and attract regional and international investments.
The meanings of settlement and mediation and its general rules were not absent from the legal arena in the State of Qatar. The rules on mediation of the Qatar International Court and the Center for Dispute Resolution were before this modern legislation, this rules were legislated in conjunction with the establishment of the court in the year 2005,and it was -in general- similar to the provisions of the Mediation Law in settling disputes, with a difference in some details. But in terms of the idea, the Qatar International Court and the Dispute Resolution Center took the lead in laying the foundations for mediation rules and resolving disputes in a fully amicable manner. Mediation according to the rules of the center is (a tool for settling disputes as an optional process through which an amicable solution to the conflict is reached between the opposing parties, through the assistance provided by a neutral person called the mediator, which aims to bring the viewpoints of the conflicting parties closer, and to propose appropriate solutions that can resolve the conflict in an appropriate manner. satisfactory, and without forcing the parties to accept a specific solution in and of itself, since the final settlement of the dispute must stem from the common will of the parties, and without any dictates from the mediator).
In the year 2006, the rules for conciliation of the Qatar International Center for Conciliation and Arbitration at the Qatar Chamber of Commerce and Industry were present at the time; which is somewhat similar to the rules of mediation and the settlement of the dispute stipulated in the Mediation Law. Considering that the final outcome of the conciliation rules is to reach an amicable settlement of disputes through (a mediator) called the conciliator; the conciliation rules of the Qatar Chamber of Commerce and Industry are defined as: (Any process – whether referred to by the term conciliation, mediation, or any other term with the same meaning – in which the parties request another person or other persons to assist them in reaching an amicable settlement of the dispute.) This definition is equivalent in the general sense to the definition given by the law of mediation in settling disputes, as we shall see in the following lines.
The texts of the Law on Mediation in Settlement of Disputes – which we are about to comment on – consist of thirty-three articles; It dealt with it the definition of mediation and the scope of its application, the mediator and its requirements, the mediation agreement, the mediation procedures, the court’s authority to request the parties to settle the dispute through mediation, and the settlement agreement and its documentation, and the cases of termination of mediation; then the penalties for violating the provisions of the Mediation Law in settling disputes.
Definition of mediation:
In its first article, the law defines mediation as: (a friendly means of settling a dispute that is resorted to between the parties, or at the request of the court). Through this definition, it is clear that mediation is a means of settling disputes that the parties to the dispute resort to themselves, or that recourse is through a request requested by the court from the parties to the dispute before it. It orders the suspension of the case and its referral to mediation if the parties agree to its request; and he intended court, according to the definition in the law, is (the court originally competent to consider the dispute subject to mediation).
Scope of application of the Mediation Law:
It is worth noting that the provisions of the Mediation Law No. (20) of 2021 do not apply to urgent and temporary cases. It also does not apply to temporary and substantive implementation disputes, and lawsuits in which Qatar Energy (formerly Qatar Petroleum) or the companies or projects it establishes, participates in or contributes to its establishment. As well as tax-related disputes, and issues in which conciliation is not permissible; as in crimes and invalid transactions, and what falls outside the scope of this law’s application is mediation in which the parties agree to resolve their dispute through arbitration or any other way to resolve the dispute between them without resorting to the court, as well as mediation stipulated in the procedures to be followed in other laws.
On the other hand, the provisions of the Law of Mediation in the Settlement of Disputes apply to any mediation agreement conducted in whole or in part in the State of Qatar. If the parties agree that the provisions of this law shall apply to their disputes, or the court has asked the parties to settle their dispute by mediation and they have agreed to do so. Finally, the provisions of the Mediation Law shall apply if the contract or agreement in dispute between the parties includes the applicability of the laws in force in the country to it.
Definition of the mediator and the required rules and how to choose it:
A mediator as defined by law is (one or more persons who directly undertake mediation between the parties). This person may be natural or legal, either ways; there must be conditions for the exercise of his activity as a mediator for settling disputes by way of settlement. In a natural person, he must be of full capacity, of good reputation, of good conduct, of known integrity and honesty, and of not having been convicted by a final judgment of a felony or misdemeanor that violates honor and trust. He must not have been previously dismissed from his job, dismissed from his position, crossed out from the roll registered therein, or his license to practice his profession has been revoked by virtue of a judgment or disciplinary decision.
Likewise, a set of conditions must be met in the legal intermediary – the legal person -. The first of these conditions is that the legal person should be a private company or institution of public benefit. It must not have been previously declared bankrupt by virtue of a court ruling. The employees of the company or institution that engages in brokerage business must meet the conditions that are required to be met by the natural mediator – the ordinary person.
In the event of agreement and agreement between the two parties to the dispute to resolve the dispute through mediation; the parties shall choose one or more natural or legal mediators, provided that the number of intermediaries is odd in case of plurality. The selection shall be from the lists of the list of brokers registered in the Register, or the parties can choose mediators from outside the mediators registered in the registry, provided that they meet all the conditions required by law in mediators, whether natural or legal.
As for the case in which the two parties to the dispute differ in the choice of mediator; either party may request the competent court, by virtue of an order on a petition, to appoint a mediator from among the mediators registered in the Register.
In all cases, the mediator must inform the parties to the dispute in writing of his acceptance or rejection of mediation within ten days from the date of his selection or appointment.
The law has bestowed protection on the intermediary. According to the texts, the mediator may not be held accountable for his exercise of mediation functions unless his exercise of mediation was in bad faith, collusion, or gross negligence.
It is a written agreement between the parties to resort to mediation, to settle all or some of the disputes that have arisen or that may arise between them regarding a specific legal relationship, contractual or non-contractual, and the mediation agreement may be independent by itself or in the form of a condition contained in a contract. The agreement must be in writing; otherwise it is void. It serves as a general law for the disputants in which the parties agree on the way in which they end the conflict between them. They choose the mediator or the number of mediators. Accordingly, they agree to resort to a settlement to resolve the dispute through a mediator.
That agreement is in one of two forms, the first one is that it be included as a clause or paragraph of the contract or agreement that is the subject of the obligation of the parties to be settled. The second one is that the mediation agreement is separate from the contract; therefore, it is correct in both cases to stipulate that the parties resort to mediation in settling disputes arising or that will arise between them when implementing opposite or individual obligations as the case may be.
First: It is necessary to ensure that the conditions related to the mediator are met, with a written mediation agreement, then mediation is through holding one or more settlement sessions conducted by the mediator or group of mediators to assist the parties to reach a solution to their dispute.
Secondly: The mediator must specifically specify the disputed issue. Because mediation and its agreement can be for the whole of the dispute or only part of it. Therefore; in order for the mediator to determine the nature of the dispute, he must study the mediation agreement and review its terms, and then the point of dispute is determined, and then proceed with the procedures.
Third: The mediator or mediators try to find solutions to the issue that has been identified as disputed.
Fourth: Communication with the parties, by presenting the disputed issue and the solution proposed by the mediator.
Fifth: Reaching a final agreement to end the dispute amicably. It is the goal for which mediation is legislated to settle disputes amicably, that is by mutual consent of all parties. So the mediator has no right to impose any solution on any dispute on any of the parties, which contradicts the idea of mediation and ending the dispute amicably.
Taking into account that the mediator performs his duties impartially and independently, and that he takes into account the interests of all parties, and for this purpose he may carry out the negotiation process with each party separately or hold joint meetings between the parties; He may also seek the assistance of experts in resolving the dispute before him.
The Court’s Power to Request Settlement of the Dispute by Mediation:
The Dispute Resolution Mediation Law gave the court before which a civil or commercial dispute is heard the power to require the parties to settle the dispute within a period or period specified by the court. It is worth noting that the power granted to the court by law consists in offering to settle the matter through mediation and does not go beyond it to oblige the parties to resort to mediation. The parties have the right to refuse the court’s request from either or both parties. Consequently, the court has no way but to move forward and proceed with the consideration of the case brought before it.
If the two parties agree to refer the dispute to mediation at any stage of the case, except for those reserved for judgment. The court must decide to discontinue the case and refer the dispute to settlement by mediation.
Settlement Agreement and Documentation:
after initiating mediation proceedings, if the mediator has reached an amicable settlement of the dispute for all or part of the dispute; he must write the settlement agreement in writing with a number of original copies for all parties to the settlement, within seven days from the date of reaching a solution to settle the dispute, provided that the editor of the agreement includes the names of the parties to the dispute, their details, and their addresses. And the name, address and details of the broker. And the name of any other person whose consent to the agreement must be obtained. Likewise; a summary of the dispute and a detailed statement of what has been agreed upon between the parties to the dispute must be stated. In the case of seeking the assistance of an expert, his name and the expert opinion that he issued must be stated. For the settlement agreement to be enforced, it must be signed by the parties, the mediator, and those whose consent to the settlement is required by the subject of the dispute.
The mediator must deposit the original settlement agreement with the court clerk’s office within seven days from the date on which the parties to the dispute sign the settlement; He may submit a request to the court to authenticate the settlement agreement, and the parties are also entitled to submit the same request. The court issues its order notarizing the settlement agreement within seven days from the date of submitting the application. The documented settlement agreement shall have the force of a bond. It may not be challenged by any means of appeal.
The court may refuse to authenticate the settlement agreement if it is contrary to public order, or it was done by fraud and deception, or the subject of the agreement is one in which reconciliation is not permissible, or due to the impossibility of implementing one of its provisions.
Mediation Termination Cases:
The legislator stipulated specific cases in which mediation procedures are terminated, in any of the following cases:
(A) The signing of the settlement agreement by the parties to the dispute.
(B) Notify one or all of the parties to the mediator dispute in writing that they do not wish to continue the mediation process.
(C) The expiry of the period prescribed for completing the mediation work without reaching a solution to the dispute.
(D) Early termination of mediation if, after consulting with the parties to the conflict, the mediator finds that it is not feasible to continue the mediation procedures.
Penalties stipulated in the Law on Mediation in Settlement of Disputes:
Respecting the provisions of the Mediation Law in settling civil and commercial disputes. The law singled out a set of penalties that would urge those dealing with this law to be serious and to take the texts of the Mediation Law seriously. Otherwise; one of the following penalties will be applied to those who violate it:
1. A fine for the party who has brought a case before the court whose merits have already been decided by a mediated settlement agreement. A fine equivalent to ten times the fees for the lawsuit he instituted, provided that it is not less than twenty thousand riyals and not more than fifty thousand riyals.
2. A fine for one of the parties to the conflict who is not obligated or refused to abide by the settlement agreement that was made based on mediation before resorting to the courts and courts; A fine of not less than one thousand riyals and not more than ten thousand riyals, not exceeding a quarter of the value of the case, even if the judgment is issued in his favor.
3. It obliges the non-compliant or the refusal of the parties to the dispute to abide by the settlement agreement that was made on the basis of mediation before resorting to the courts and the courts, by paying five times the lawsuit fees and not exceeding twenty thousand riyals in favor of the litigant in the lawsuit as compensation for the expenses and expenses – without prejudice to any other expenses decided by the court – even if the judgment is issued in his favor.
4. A fine for the mediator or one of the parties who disclosed to a third party or the court any information, documents or discussions related to mediation without the permission or consent of the disclosing party. A fine of twenty thousand riyals or 5% of the value of the dispute, whichever is greater, the court rules; Provided that the amount imposed as a fine does not exceed one hundred thousand riyals. The court does not take into account the information, data or documents that have been disclosed, and it refers the dispute to another court for adjudication.
In conclusion, we say that this law regulates all matters related to mediation. In sum, its texts were very clear and clear regarding the rulings it meant. A brief summary that fulfills the statement for which it was mentioned, without making the texts lengthy or complicated. He apparently took into account what is stipulated in international agreements in the matter of settling disputes through mediation; especially the United Nations Convention on International Settlement Agreements Resulting from Mediation – signed in the State of Singapore – and ratified by the State of Qatar on 07/10/2020. The law indicated in its second article that it takes into account the international agreements in force in the country and does not violate their provisions. Thus; the law includes all issues related to mediation in settling commercial and civil disputes.
Author: MR. MOHANAD BABIKER\ Senior Legal Consultant