Empowering Mediators in the MENA Region

Neutrality is often held up as the cornerstone of mediation, a beacon of fairness ensuring balanced outcomes. Yet, this hallowed principle might not be as straightforward or as beneficial as it seems. When we peel back the layers, neutrality reveals itself as a nebulous ideal—challenging to define, difficult to achieve, and questionable in its desirability. In the context of mediation, especially, it is time we reconsider what neutrality truly means and whether we need it at all.

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The Trouble with Defining Neutrality

Neutrality in mediation demands a mediator’s absence of bias or partiality requiring vigilance against both explicit bias towards a specific party as well as unconscious bias. It encompasses treating parties equally, having no personal stake in the outcome, and avoiding any influence from financial interests or external pressures like the government. Yet, as scholars like Astor and Mayer point out, these definitions are neither comprehensive nor universally accepted. For instance, Mayer dissects neutrality into structural, behavioural, emotional, perceptual, and aspirational dimensions, each with its own complexities.

The confusion further extends to neutrality’s overlap with impartiality. Some argue neutrality means the absence of pre-existing relationships, while impartiality refers to being unbiased in the mediator’s conduct. Others use the terms interchangeably, further muddying the waters. This lack of clarity makes neutrality a challenging concept to pin down and apply consistently in practice.

Moreover, the very idea of being entirely neutral is contradictory, and in reality, challenging, owing to the very nature of the concept, which is evident from its definition as discussed, thus leaving it more as a theoretical aspiration. If neutrality requires mediators to have no personal perspective or influence, can such a role ever truly be fulfilled? Astor notes that mediators often bring their experiences, perspectives, and values into the process, consciously or unconsciously. Thus, even if one were to strive for perfect neutrality, human nature itself might render this impossible.

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Can Neutrality Truly Be Achieved?

If defining neutrality is hard, attaining it is even harder. Mediators are human, shaped by their own experiences, cultural contexts, and subconscious biases. Becker’s critique emphasises that even seemingly innocuous actions—a slight nod, a word choice—can betray a mediator’s influence. Empirical studies show that mediators often guide conversations, steer outcomes, or unwittingly favour one party over the other, even when striving for neutrality.

Power imbalances further, exacerbate this issue. In cases where one party holds more sway—economically, socially, or otherwise—strict neutrality might in fact, perpetuate injustices rather than resolve them. Feminist and critical legal scholars highlight how an insistence on neutrality often disadvantages marginalised groups, unintentionally aligning mediators with the more powerful party. In such scenarios, neutrality becomes a paradox: treating parties equally can entrench inequalities, while addressing these disparities violates the principle of neutrality. It is of course debatable whether rectifying any systemic power imbalances is in the first place within or outside the mediator’s purview. Nonetheless these considerations further question the attainability of neutrality.

Neutrality also falters in high-conflict or emotionally charged disputes. Mediators tasked with keeping the peace might naturally favour approaches that calm tensions, inadvertently sidelining parties who are more confrontational but equally valid in their grievances. This inclination further reveals how neutrality may skew the mediation process without the mediator’s conscious awareness.

Despite these challenges, some argue for the possibility of “external neutrality,” where mediators consciously separate their biases from their actions. This approach however relies on self-awareness and self-regulation—skills that are often easier said than done. Ultimately, as Boulle succinctly puts it, neutrality remains “the most pervasive and misleading myth about mediation.”

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Is Neutrality Even Desirable?

The discussions above, forces one to question that even if one could both define and attain neutrality in certain circumstances, is it actually desirable? Scholars like Mayer argue otherwise, suggesting that disputants often seek more than a neutral facilitator. Parties in mediation frequently need guidance, advocacy, and support—roles that a strictly neutral mediator cannot fulfil. By clinging to the neutrality ideal, mediators might miss opportunities to build trust, foster open dialogue, and address power imbalances effectively.

Research supports this shift. Studies reveal a positive correlation between mediator assertiveness and successful settlements. Active involvement, rather than detached neutrality, often leads to more equitable outcomes. Furthermore, aspirational neutrality can constrain mediators, forcing them to navigate between opposing demands: detachment and proactive intervention. This tension hampers their ability to address the real needs of the parties involved.

In some situations, neutrality might even harm the mediation process. For instance, in cases involving domestic abuse or extreme power imbalances, a neutral stance risks legitimising the status quo, leaving the disadvantaged party without meaningful recourse. There is of course, the ethical dilemma regarding whether such extreme cases should be mediated at all, but then at least mediators who adopt a more active role can challenge these dynamics and create space for equitable solutions.

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Alternatives to Neutrality

So, if neutrality falls short, what should replace it? Scholars like Mulcahy and Astor propose more practical, nuanced approaches.

Transparency and Bias Acknowledgment

Mulcahy advocates for transparency. Rather than feigning impartiality, mediators should openly acknowledge their biases and values. This approach shifts the focus from the mediator to the parties, empowering them to make informed decisions about the process and its outcomes. Transparency fosters trust and encourages an honest, collaborative environment.

Transparency also promotes accountability. When mediators openly disclose their potential biases, they invite scrutiny and dialogue, creating a more balanced power dynamic. For example, a mediator handling a corporate dispute might reveal a prior background in corporate law. This disclosure allows parties to weigh the mediator’s perspective and adjust their expectations accordingly.

Reflexivity and Inclusivity

Astor emphasizes the importance of self-awareness in mediation, urging mediators to recognize how their cultural, political, and personal experiences shape their perspectives. Rothman extends this idea with a reflexive approach, arguing that true neutrality is unattainable. Instead of striving for detachment, mediators should engage in disciplined self-reflection—becoming aware of their biases and assessing how these influence their interactions with parties. Reflexivity allows mediators to consciously navigate their own perspectives while ensuring they do not unconsciously reinforce power imbalances.

Inclusivity is a natural extension of this reflexive practice. By acknowledging their own positionality, mediators can better engage with underrepresented voices and marginalized perspectives, ensuring that all parties feel heard. This does not mean imposing an external sense of fairness but rather fostering an environment where diverse viewpoints shape the mediation process. In doing so, mediators enhance not only the perceived fairness of the process but also the durability of its outcomes.

At its core, reflexivity does not undermine party autonomy but strengthens it. By being attuned to their own influence on the process, mediators can more effectively empower parties to take ownership of their disputes and solutions. This shift from an illusion of neutrality to an engaged, self-aware practice ultimately leads to a more inclusive and equitable mediation experience.

Advocacy and Empowerment

Mayer and others suggest moving beyond neutrality toward advocacy. Mediators can play an active role in levelling the playing field, ensuring that disadvantaged parties have a voice. This doesn’t mean taking sides but rather facilitating a process where fairness prevails over rigid adherence to neutrality. In doing so, mediators must however ensure that their efforts to promote fairness are truly shaped by the parties’ circumstances and the mediation process itself rather than their own sense of justice.

Further, advocacy doesn’t necessarily compromise the mediator’s role. Instead, it redefines it. By advocating for equitable participation and ensuring that power imbalances are addressed, mediators can enhance the integrity of the process., This is, however, only attainable if done with restraint. A mediator must intervene enough to prevent exploitation or coercion while avoiding actions that could be perceived as favouring one side. The challenge lies in distinguishing between necessary intervention and undue influence. In cases where one party lacks resources or knowledge, a mediator’s guidance can bridge these gaps without undermining the overall fairness of the proceedings. Having said that, the line between guidance and advocacy is thin, and crossing it risks shifting from facilitation to partiality. Mediators must always consider that their role does not involve championing an outcome but creating conditions where parties can negotiate on more equal footing without distorting the process in favour of one side.

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A New Vision for Mediation

In conclusion, one may argue that the time to reassess the significance of the pursuit of ‘neutrality’ in mediation is now upon us. Instead of neutrality, embracing approaches that prioritise fairness, transparency, and empowerment can help mediation evolve into a more effective, inclusive, and just method of dispute resolution.

Further, while neutrality might be overrated, the potential of mediation is not. Let’s reimagine the mediator’s role—not as a passive observer but as an active facilitator of equitable outcomes. The result? A mediation process that truly serves its purpose: resolving conflicts in a way that is fair, balanced, and transformative.

By replacing neutrality with more practical principles, mediators can help parties navigate disputes with greater clarity and purpose. Transparency fosters trust, self-awareness, reflexivity, and inclusivity enhance fairness, and advocacy empowers the vulnerable. Together, these elements form the foundation of a new mediation paradigm—one that aligns with the realities of human interaction and the complexities of conflict.

Ultimately, this shift isn’t just about redefining mediation; it’s about improving it. When mediators move beyond neutrality, they unlock the full potential of their role, enabling outcomes that are not only just but also transformative for all involved.

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Exploring Dispute Resolution in Sports

As sports continue to grow into a global industry, disputes are inevitable. In his latest study, Dr. Chady Saad delves into the role of arbitration and mediation in resolving sports disputes, analyzing when each method is the optimal choice and why.

Drawing on both practical and academic expertise in sports law, this analytical study provides valuable insights for legal professionals, sports organizations, and dispute resolution specialists.

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Disputes are common in the highly complex and evolving financial landscape, and the Islamic finance sector is no exception. Operating under distinct Sharia principles, Islamic finance introduces specific challenges when conflicts arise, as ethical considerations and the requirement for fairness guide financial dealings. Mediation, as an efficient and cooperative conflict resolution tool, provides disputants with a non-adversarial method to find common ground and manage their conflicts. In Islamic finance, mediation allows parties to resolve their disputes in a transformative way that is consistent with the Islamic principles while aligning with Islamic values of justice, fairness, and mutual understanding.

Mediation is not only compatible with Islamic finance but is deeply aligned with the ethical teachings of Islam. As a matter of fact, the transformative process of mediation aligns well with Sharia law's emphasis on justice and harmony. Moreover, the five pillars of Islam provide a framework that fosters cooperation, justice, and community welfare—values that are also at the core of conflict resolution through mediation. For example, the principles of patience, fairness, and responsibility within these five pillars, resonate strongly with mediation’s focus on mutual respect, peaceful resolution, and reconciliation. Therefore, resorting to mediation in Islamic finance disputes, can offer a way to settle these disputes while adhering to the fundamental Islamic values.

Through this article, we shall explore how mediation can provide a sharia-compliant method for resolving disputes once applied across key Islamic finance products such as Murabaha, Mudaraba, Ijara, Istisna and Sukuk, to delve afterwards into the important necessity of incorporating mediation clauses in the contractual framework of Islamic finance agreements.

In the context of a Murabaha contract, one of the most used Islamic finance instruments, transparency is essential, as the bank discloses the profit margin to the buyer when selling an asset. Conflicts in Murabaha contracts often arise when there is a disagreement over the terms of the sales or when the assets’ quality are questioned. Mediation ensures that any dispute over the transaction’s transparency is resolved fairly, with both parties agreeing on a solution that is just and in line with Sharia's emphasis on fairness.

For example, if a client purchases machinery through a Murabaha contract and afterwards discovers that it is faulty, mediation provides a way for the parties to discuss compensation or replacement options, avoiding the need for costly litigation and preserving the trust essential to Islamic finance relationships.

Mudaraba contracts, where one party provides capital and the other manages the business, are built on shared risks and profits. Disputes can arise over how profits are distributed, particularly when expectations differ from the actual returns. Mediation offers collaborative environment to address such disputes, helping parties reconsider the terms of their agreement and consequently ensuring that the resolution respects both parties' contributions.

For instance, if the entrepreneur believes their efforts justify a larger share of the profits, mediation allows for a constructive dialogue that leads to an equitable solution and resolution while adhering to the ethical principles of Islamic finance.

In Ijara (leasing) and Istisna (manufacturing) contracts, fairness in transactions is paramount, as Islamic law prohibits exploitation or uncertainty in agreements. Disputes often arise when there is dissatisfaction with the condition of the leased or manufactured goods. Mediation helps both parties find a resolution that respects their rights and obligations while maintaining the ethical standards of Sharia.

For example, if a lessee inan Ijara contract discovers that the leased equipment are faulty, mediation can facilitate a solution that may involve repairs or adjusted terms, ensuring a swift and cooperative outcome that benefits both parties and avoids adversarial legal proceedings.

Sukuk, often referred to as Islamic bonds, are a major financial instrument in Islamic finance. These bonds are asset-backed and structured to be Sharia-compliant, meaning they do not involve interest payments but rather represent ownership in a tangible asset or business. Conflicts in Sukuk often arise over the evaluation of the underlying assets, the management of those assets, or over the profit distributions. In this context, mediation offers a solution by helping bondholders and issuers address their concerns without resorting to court.

For instance, if a dispute arises over the revenue generated by the asset underlying a Sukuk issuance, mediation allows flexible and open dialogue. Both parties can agree on a revised distribution plan or even adjustments to the structure of the Sukuk, ensuring compliance with Islamic ethics and maintaining market stability.

We delved into practical examples of how mediation adds value to some of the major Islamic finance products, and it became clear that mediation offers an ethical and efficient approach to resolving disputes; However, to fully capitalize on these benefits, it is essential to incorporate mediation directly into the contractual framework of Islamic finance agreements.

Embedding mediation clauses into Islamic finance contracts is an essential step toward fostering a cooperative and Sharia-compliant approach to conflict resolution. Mediation clauses serve as a safeguard ensuring that disputes are handled efficiently, avoiding the delays, costs, and adversarial nature of litigation. By incorporating mediation in contracts from the outset, parties commit to resolving potential conflicts in a manner that reflects the ethical values of Islamic standards of fairness, transparency, and cooperation that underpin Islamic finance.

Islamic finance contracts, such as Murabaha, Mudaraba, Ijara, and Sukuk, often involve complex financial arrangements, where disputes can easily arise due to differences in interpretation of terms, unforeseen changes in the market, or disagreements over profit-sharing and asset quality. Including mediation clauses in these contracts guarantees that any conflicts shall be addressed through dialogue and mutual understanding, in line with the Islamic principles of fairness, justice, and cooperation. Furthermore, mediation provides flexibility in resolving conflicts, allowing creative solutions that litigation may not offer.

For instance, mediation can facilitate modifications to contracts or renegotiations of terms, ensuring that both parties find a mutually acceptable solution that not only resolves the dispute but also preserves their long-term business relationship. This is particularly important in Islamic finance, where maintaining trust and ethical standards is paramount.

Mediation clauses serve as well as a risk management tool, ensuring that financial agreements remain stable and that disputes do not escalate into prolonged legal battles that could harm the reputations of both parties involved. By committing to mediation, Islamic financial institutions and their clients demonstrate theirdedication to resolving conflicts in a manner that is both efficient and inharmony with Islamic values.

Mediation offers a Sharia-compliant, ethical way to resolve disputes in the Islamic finance sector. Its emphasis on fairness, cooperation, and reconciliation makes it an ideal conflict resolution tool, particularly for Islamic finance contracts. Through mediation, disputes involving Murabaha, Mudaraba, Ijara, Istisna, and Sukuk contracts can be resolved efficiently while maintaining the trust and integrity that are core to Islamic finance.

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In many Arab communities, when disputes arise, itis common for the parties involved to seek the guidance of a respected elder, community leader, or religious figure to help mediate and resolve the conflict. This tradition of early mediation is deeply rooted in the Arabian culture, where preserving harmony and maintaining relationships are paramount. The modern aspect of mediation involves a neutral third party who facilitates discussions between the disputing parties, helping them to reach a mutually acceptable resolution. In this context, mediation is not just a conflict resolution tool, but it is a means of upholding social cohesion and fostering mutual respect. While the concept of mediation is ancient, modern practices have evolved to include professional community mediators who bring a structured approach to the process. These mediators work alongside traditional figures in the community, providing expertise while respecting cultural norms.

Imagine a close-knit neighborhood in an ancient Arab town, where two families find themselves in conflict over a centuries-old olive tree that stands between their homes. One family is concerned that the tree’s roots are damaging their water pipes, while the other family views the tree as a sacred symbol of their heritage, deeply intertwined with their identity and history. The families initially consider seeking the advice of a community elder, but recognizing the complexities involved, they decide to engage a professional community mediator. Through this mediation, facilitated by someone who understands both the cultural significance of the issue and the technical aspects of the dispute, the families reach an accord. They agree to reinforce the pipes without uprooting the tree, preserving both the integrity of the property and the cultural significance of the olive tree. The mediation not only resolves the issue but also strengthens the bond between the families, leading to a shared commitment to preserving their neighborhood’s rich cultural heritage.

This olive tree scenario reflects the delicate balance between tradition and modernity that is often encountered in communities across the region. Disputes like these - whether they involve neighbors, family members, local communities or businesses - can challenge the harmony that is highly valued in society.

Community mediation addresses a wide range of disputes that can arise in daily life, offering a culturally sensitive approach to resolving conflicts, fostering dialogue and mutual respect while preserving the social fabric and saving the “Olive tree”.

Neighborhood conflicts, such as disagreements over property boundaries, noise, or the use of shared spaces, can quickly escalate if left unaddressed. Big family disputes, particularly those involving land ownership or exploitation, inheritance, marriage require careful handling to maintain family unity and honor. Schools and educational institutions also benefit from mediation, where conflicts between students, parents, and teachers can be resolved in a manner that upholds the dignity of all parties involved. Additionally, small businesses, often family-run, can use mediation to settle disputes that might otherwise damage relationships or reputations.

The advantages of community mediation are particularly significant in this context. It provides a cost-effective alternative to the often expensive and prolonged legal process. The confidentiality of mediation is crucial in a culture where maintaining one’s reputation and social standing is of utmost importance. Since the process is voluntary, it encourages cooperation and ensures that all parties are invested in the outcome. This collaborative approach aligns with the communal values that are deeply rooted in society and therefore protects the sacred “Olive tree”.

One of the most important aspects of community mediation is its ability to preserve relationships. Unlike court battles, which often result in winners and losers, mediation seeks to find common ground, which is essential in maintaining social harmony. This approach not only resolves the immediate conflict but also strengthens the bonds between individuals and families, contributing to the overall stability of the community and preserving the roots of the “Olive tree”.

Returning to our example, the resolution of the olive tree dispute through mediation illustrates the tangible value of this approach. The local communities and families not only found a practical solution but also deepened their respect for each other's cultural values. This outcome demonstrates how mediation can transform potential conflicts into opportunities for greater understanding and cooperation, fostering a sense of unity within the community.

Community mediation is a powerful tool for building stronger, more harmonious communities across the regions. By addressing conflicts with empathy, respect, and an appreciation for cultural values, mediation helps communities overcome challenges and emerge stronger. Amid ongoing disputes over resources, property, and access to services, mediation offers a peaceful alternative to escalation, providing communities with the chance to resolve issues without further deepening divisions. The tangible benefits of community mediation, from avoiding battles to preserving relationships in the midst of strife, are invaluable.

As our societies continue to navigate the complexities of modern life, the role of mediation in fostering peace and understanding will only become more important. In a region marked by the scars of conflict, fostering peace through mediation becomes an essential step towards rebuilding trust, unity and peace. In Lebanon for instance, where the effects of conflict and war conditions continue to devastate the social fabric, the role of mediation is not just important—it is urgent.

When disputes arise consider community mediation-not just as a solution but as an opportunity to heal the wounds that continue to affect our region, an opportunity to build a more connected and cohesive society around the “Olive Tree”.

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