Introduction:

The Modern legal system in the UAE was developed in the last 25 years of the 21^st Century. It was initially modell ed on the French Civil Code System, but later developed its own legal principles and structures. The U.A.E legal system, like most continental European civil code systems, is based on a Civil Code that covers: Personal rights, Contract law, Obligations, and Elements of tort law.

 
In addition, there are specific codes dealing with other areas of law, such as the Commercial Code, which complements the Civil Code in certain areas of commercial law, and the Code of Civil Procedures. These Codes deal mainly with private law but there are also elements of public law. Large commercial disputes tend to be settled through Arbitration, following implementation of the Arbitration Law (Federal Law No. 6 of 2018). However, the settlement of large commercial disputes through court litigation remains common. Family courts also adopted some dispute resolution methods, but they are not effective up till now.  

Interest in mediation has recently grown. However, mediation remains in the U.A.E until 2021 subject to contractual agreement, and not formally regulated by legislation.

 
In 2021, the U.A.E made its first move to adopt Mediation for the Settlement of civil and commercial disputes.Federal Law No. (6) of 2021 on Mediation was issued in UAE and amending some provisions of Federal Law No. (17) of 2016 Establishing Conciliation and ReconciliationCenters in Civil and Commercial Disputes. Finally in 2023, Federal Law No. (40)of 2023 on Mediation was issued in UAE with the aim of unifying all rules and principles of Mediation in one code, that we can call ‘LAW OF MEDIATION’. The new federal law combines the rules of judicial mediation, privet mediation, and how Conciliation and Reconciliation Centers work in Civil and CommercialDisputes all together in one code.

Mediation process is a cooperative dispute resolution process in which an impartial third person facilitates communication between the parties to help them reach a mutually acceptable resolution that is better than their alternatives. Federal law stipulates that the judicial departments or authorities shall prepare lists for the registration of mediators from among those registered in the list of experts at the Ministry of Justice or in the local judicial authorities.

Mediators can be selected from among the retired members of the judiciary and lawyers registered in the rolls of practicing and non-practicing lawyers who have practiced the profession for a period of not less than five years prior to registration in the roll of non-practicing lawyers, and other highly qualified and international experts in the legal field and in the field of business and known for their experience, integrity and impartiality determined by a decision of the Council or the President ofThe judicial authority, as the case may be, the conditions, procedures and periods of registration and renewal of the lists of mediators, their selection and cancellation.

According to the federal law courts will offer various process options and presume some sort of ADR tools that will help in most cases. Lawyers and parties are given the opportunity to select their own process under the supervision of the judges.

So, judges in courts now according to the federal law of mediation have a great responsibility to control the process of judicial mediation and to encourage parties to settle their disputes by mediation and response to concerns or objections raised by lawyers and parties as well.

Most of the judges in need to enhance their skill to increase Courts ability to resolve cases using mediation Judges at courts should provide services where unique features of cases are given priority attention on order to promote great public satisfaction. That leads to suggesting some ideas about the content of the training courses that will provide judges with what they really need in the coming days and enhance their skills.

This paper will deal with the composition of the main resolution methods in UAE courts and their classification, and how to provide of the judges with fundamental training in mediation which is different from the traditional way to deliver justice, and guidelines that is readily usable to promote great public satisfaction in mediation.

Section I: Structure of the Courts:

The courts in UAE are organized in three levels to achieve full extent of justice, the UAE adopts three levels of courts for litigation purposes. This system enables effected party to challenge the case and present more evidence within the provisions of the law. The courts' degrees in the UAE are:

• Court of First Instance (federal and local)

• Court of Appeal (federal and local)

• Federal Supreme Court (at the federal level) and the Court of Cassation at the local level of the emirates which have independent judicial departments.

If the ruling of the Court of First Instance is not satisfactory, it can be challenged before the Court of Appeal and then the Court of Cassation according to the provisions of Federal Law No. 42 of 2022 concerning the Civil Procedural Law.

Court of First Instance:

Court of First Instance is the first degree of litigation and has the jurisdiction to hear all civil, commercial, administrative, labour, and personal status lawsuits. Its jurisdiction includes examining statement of claims, authentication of documents, all urgent matters related to disputes among the people and safeguarding their rights. It is also in charge of enforcing judicial execution deeds, as well as executions by deputation or reference.

Court of Appeal:

Court of Appeal is the second degree of litigation which entitles the litigant affected by the Court of First Instance to appeal his/her case before a higher court in accordance with the provisions of the civil and criminal procedural laws effective in the UAE.

Only the convicted may appeal the court judgement. Thus, appeal is not possible to anyone who accepts the ruling explicitly or implicitly.

The time limit to challenge a ruling starts from the day following its issuance unless the law provides otherwise. The time limit for appeal shall be (30) days unless otherwise provided by the law, and (10) days in urgent cases. The failure to observe the time limits of appeal in the judgements results in the extinguishment of the right of appeal.

Court of Cassation

Court of cassation is the higher judicial body (Appellate Court) with power to try cases contested by the Court of Appeals. It supervises the interpretation of laws and its proper enforcement. At this court, litigants may appeal only on points of law alone, such as violation of law or on erroneous application or interpretation.The appeal must be filed within (30) days of the judgement of the Court ofAppeal if the value claimed in the action exceeds AED 500,000 or cannot be evaluated. All decisions of Court of Cassation are final and binding and are not subject to appeal.

Personal status court (family court -Sharia)

Personal status court handles all family cases related to matters such as marriage, divorce, alimony, guardianship, custody and visitation, proof of maturity, proof of lineage and inheritance. Federal Law No. 28 of 2005 applies to personal status cases. Article 1 of the Law provides that the Law shall apply to all UAE nationals except non-Muslims in which case they shall be governed by special rules relating to their specific creed or sect.

TheFamily Guidance Section usually handles personal status cases free of charge before they are referred to trial at the Court of First Instance. If both parties fail to reach an amicable agreement, the dispute will be referred to the Court of First Instance after the payment of the court fee, if applicable.

Civil courts

Civil courts handle the cases related to the financial rights of individuals and legal entities such as government departments, companies, and institutions. The cases can be related to disputes about validity, implementation, cancellation or termination of contracts, intellectual properties, lands, and mortgages.

Commercial courts

Commercialcourts handle commercial contracts and commitments, banking processes, commercial papers, bankruptcy, and its reconciliation issues. Federal Law No. 50 of 2022 regarding commercial transactions regulates types of cases related to above issues.

Criminal courts

These courts handle criminal cases initiated by the federal or local prosecution in each emirate.

Section II: Main dispute resolution methods:

Large commercial disputes in civil and commercial matters are heard before the First Instance Court. The relevant branch of the First Instance Court is that with local jurisdiction over the place of the defendant's domicile. The following notes relate to procedures applicable in the First Instance Court and the Court of Appeal.

Rights of audience/requirements: lawyers in UAE are progressively licensed to attend before various levels of courts, from the Small Claims Court up to theFirst Instance Court, the Court of Appeal and finally the Court of Cassation. However, it still takes a lawyer years of practice from registering as a trainee lawyer to obtain rights of audience before the Court of Cassation.

Confidentiality: Court proceedings are public. However, only the parties and their lawyers can access court files.

Pre-action conduct: Courts do not impose any rules on the parties in relation to pre-action conduct. However, abuse of judicial process can be grounds for a compensation claim.

Starting proceedings: In contractual or commercial claims, the plaintiff (using a court process server)must first serve notice on the defendant, giving an opportunity to comply with the claim.

Notice to the defendant and defence: If the defendant does not comply within the time given in the notice, the claimant can start an action by registering a statement of claim with the court clerk. A court process server then serves the statement on the defendant.

If the defendant is abroad (not domiciled in UAE), service is through diplomatic channels, and is affected by submitting the notice to the Public Prosecution.

Subsequent stages: After the defendant receives the statement of claim, the case progresses with adjournments, to allow the parties to submit their arguments (mainly through written memoranda and dockets of documents). There is no requirement that the defendant files a defence on receiving a statement of claim. The process of submitting a defence is regulated by court hearings, during which the judge invites the defendant to submit its statement of defence.

Oral pleadings before the First Instance Court are generally quite brief. Adjournments generally range from a few weeks to several months.

The court usually refers complex accounting and most technical issues to an expert or a panel of experts, who are typically employees of the federal Ministry ofJustice or judicial authorities. First instance proceedings usually take two to three weeks. Appeals are considered as findings of fact can be changed and even new experts appointed and could take up to two weeks or more. In commercial and civil matters, a further appeal may be made on errors of law to the Court ofCassation.

Finalremedies

At the full trial stage all remedies are available, including:

· Monetary compensation

· Specific performance

· Declarations

Damages are generally compensatory, but the court may, in rare cases, impose penalties for non-compliance with court orders.

Evidence

Disclosure:  Discovery in the common law sense (that is general and enabling the parties to go on "fishing expeditions") is not available. However, any party can request the court to order disclosure of a specific document, provided that:

· The document is identified in reasonable detail.

· The requesting party shows that it is material and relevant.

Privileged documents

Privilege is not recognized in UAE. General discovery is not allowed, and the parties cannot go on fishing expeditions. Internal confidential documents are therefore protected to a certain extent, as the opposite party may be unable to access these documents.

Other non-disclosure situations: Confidential documents between a party and a third party are not ordered for disclosure, unless the requesting party shows that they are material and relevant.

Oral evidence: Witnesses of fact must appear in court and are generally questioned by the court and can also be questioned by counsel.

Right to cross-examine: Both parties' counsel can ask witnesses some questions but not to the extent of examination-in-chief and cross-examination. The Courts generally do not allow extensive examination.

Appointment procedure: Experts are appointed by the court at its own discretion, or at a party's request. However, parties can also submit expert evidence. Court-appointed experts are normally appointed from a roster of experts at the Ministry of Justice.However, in certain cases where special expertise is required, experts can be appointed from universities and other institutions.

Role of experts: Experts appointed by the court are independent of the parties and are accountable to the court. However, when parties submit their own expert evidence, the experts can represent that party's interests.

Right of reply: Experts' findings of fact and reports can be challenged, and the court can refer issues back to the same experts or re-assign them to different experts. However, the parties cannot directly cross-examine the expert.

Fees: The expert fees for referral requested by one of the parties are usually paid by the requesting party (the court determines this in its preliminary judgment appointing the expert). Fees for experts appointed at the court's initiative must usually be divided equally between the parties. If a party fails to make the payment, the other party can make the full payment after first obtaining the court's permission.

Appeals

The rules concerning appeals of first instance judgments in large commercial disputes,

Appeals from the First Instance Court are to the Court of Appeal. The relevant branch of the Court of Appeal depends on the defendant's domicile. Further appeals can be made before the Court ofCassation.

Grounds for appeal

Appeals to theCourt of Appeal can be based on alleged errors of fact or law (the incorrectapplication of law or inadequate reasoning). Further appeals to the Court of Cassation are possible on alleged errors of law. A Court ofAppeal's judgment may be appealed before the Court of Cassation within 30 daysof the Court of Appeal's decision.Oral pleadings before the Court of Appeal aregenerally very brief. In appeals to the Court of Cassation, the parties havegreater flexibility for more extensive oral pleadings.

Appeals fromFirst Instance Judgments are in effect new trials (that is, all issues of fact can be reconsidered, although no new claims are allowed) and usually take from one to month. Appeals to the Court of Cassation take much longer, unless a stay of execution request is made (to stay execution of a Court of Appeal decision),which is generally heard within a month.

Classactions

Class actions are recognized in collective relationships such as collective labour agreements. Labor law provides procedures for settlement of collective labour disputes between employers and all employees or a group of employees. Other than labour disputes there is no mechanism for class actions.

Enforcement of a local judgment

A writ of execution is obtained from an execution judge, and the judgment is enforced through court bailiffs. Numerous methods are available to delay execution, including a contestation case (which stops execution for a few months) and third-party recovery claims in relation to attached assets.

Cross-border litigation

Local courts respect and apply valid choice of law provisions. However, mandatory statutory provisions of UAE law (as part of public policy) cannot be contracted out of, even if a foreign law is chosen. For example:

· The right of a commercial agent to receive compensation for unjustified termination or non-renewal of the agency cannot be derogated from.

· UAE law has mandatory application in relation to technology transfer agreements.

UAE courts have mandatory jurisdiction in all claims (except for those relating to real property abroad) against citizens and foreign persons domiciled in UAE. In addition, courts have jurisdiction in claims relating to property in UAE or contracts that are implemented in the territory. Courts will decline to review cases where the parties have agreed to resort to arbitration. This is unless the arbitration provision is waived or deemed to be waived if the defendant has not raised this issue before dealing with the merits. Foreign proceedings and documents can generally be validly served by formal notice through a court process server.

Generally, sworn statements can be made by a witness in before a notary public (a governmental official with authority to certify statements and contracts).Whether the sworn statements are admissible in foreign proceedings depends on the courts in the foreign jurisdiction. In practice, sworn statements given before a consular office at the embassy of the country where the case is being heard can also be acceptable.

Enforcement of a foreign judgment

UAE is not a party to the 1965 HCCH Convention on the Service Abroad of Judicial and ExtrajudicialDocuments in Civil and Commercial Matters. There are several bilateral treaties between UAE and some countries and multilateral treaties that relate to judicial enforcement.

Generally, the enforcement of a foreign court judgment would require:

· Valid jurisdiction by the court issuing the award.

· Reciprocity

Unless there isa treaty that allows for direct enforcement, a court case must be initiated to obtain a judgment for enforcement.

 
Finally, these are the Main principles of dispute resolution methods process in UAE.

Before filing a case, whether it is a civil, labour, or personal status, the UAE's court system facilitates alternative methods of dispute resolution through committees, which include:

· commercial disputes resolution committees

· family guidance committees

· mediation and conciliation centres     

· labour dispute resolution committees.

These committees aim to solve disputes amicably and reduce the burden of judicial fees. If an amicable settlement is not possible, the litigating party can apply for a 'No objection' letter from the relevant mediation committee/centre and submit a statement of claim to the relevant court. Then, the case is filed to be seen by the judge in the respective Court of First Instance.

Conciliation and Reconciliation Centres established early to settle Civil and Commercial Disputes remains not effective enough except in family cases.

Section III: Alternative dispute resolution:

Arbitration:

Arbitration in the UAE is reliable and efficient method for resolving conflicts in many cases.InMay 2018, the UAE issued Federal Law No. 6 of 2018 on Arbitration. The arbitration law applies on:

• any arbitration conducted in the UAE, unless the parties agree that another law should govern the arbitration, provided it is not in conflict with the public order of the state.

• any international commercial arbitration conducted abroad if the parties chose this law to govern such arbitration.

• any arbitration arising from a dispute in respect of a legal relationship, whether contractual or not, governed by UAE law, unless it is excluded by a special provision.

In addition to Federal Law No. 6 of 2018 on Arbitration, arbitration is also governed by Federal Law No. 42 of 2022 concerning the Civil Procedural Law.

In the UAE, the legal and financial landscape is divided between two types of zones:

The“onshore” zone:it covers most of the UAE’s territory and is subject to the federal laws and regulations of the UAE government. Within this zone, businesses and individuals are governed by the UAE Civil Code, the UAE Commercial Companies Law, and other federal laws applicable to various aspects of business, trade, and activities conducted in these areas.

The“offshore” zones, or “free” zones: They are established as independent jurisdictions with their own legal and regulatory frameworks. They operate under separate laws, often based on common law principles, and have specialized courts to adjudicate matters within their jurisdictions. The DIFC, founded in 2004, operates as a financial free zone with its legal foundation established by Federal Law 35/2004 and Dubai Law 9/2004. The ADGM, established in 2015 in Abu Dhabi, functions as an autonomous financial free zone with its own set of laws, including a Court of First Instance and a Court of Appeal, based on common law principles.

Agreements to arbitrate disputes are governed by different laws, depending on the seat of arbitration:

• The governing law for disputes seated onshore in the UAE is Federal Law No. 6 of 2018 concerning Arbitration (UAE Arbitration Law).

• Concerning disputes for which the seat of arbitration is the DIFC, they are subject to the DIFC Arbitration Law No. 1 of 2008 (DIFC Arbitration Law);

• The ADGM Arbitration Regulations 2015 (ADGM Arbitration Law), which are based on the UNCITRAL Model Law, apply to arbitrations where the seat of the arbitration is the Abu Dhabi Global Market.

Regardless of the location of the seat of arbitration, these laws can also apply to arbitration disputes if the parties explicitly decide to designate them in their arbitration agreement as applicable laws. Arbitration is prevalent in construction disputes, oil and gas, shipping, and hotel management contracts. Major public private projects usually provide for several stages ofADR, including mandatory negotiations and arbitration.

Mediation:

Apart from arbitration, which is fairly developed and is subject to the Arbitration law, mediation remains subject to contractual agreement, and is not formally regulated by legislation until 2021.

In 2021, the UAE legislator made his first move to adopt officially Mediation for the Settlement of civil and commercial disputes.Federal Law No. (6) of 2021 on Mediation was issued in UAE and amending some provisions of Federal Law No. (17) of 2016 Establishing Conciliation andReconciliation Centres in Civil and Commercial Disputes.

Finally in 2023, Federal Law No. (40) of 2023 on Mediation was issued in UAE with the aim of unifying all rules and principles of Mediation in one code, that we can call‘LAW of MEDIATION’. The new federal law combines the rules of judicial mediation, privet mediation, and how Conciliation and Reconciliation Centres work in Civil and Commercial Disputes all together in one code.

The UAE mediation law provides for two types of mediation: Judicial mediation. Competent courts can refer disputes to mediation at any stage, provided the parties consent, and non-judicial mediation. Parties with a mediation agreement may directly resort to a mediation and conciliation centre before commencing court or arbitration proceedings. The courts will prevent either party from commencing court or arbitration proceedings unless the mediation agreement is invalid or impossible to implement.

The mediation law implements international best practices likely to encourage mediation in commercial disputes. These include the protection of “without prejudice” discussions in mediations, freedom to select and appoint a private mediator, and a registration regime to ensure suitably qualified mediators.

Proposals for Judges and how to enhance their skills:

Mediators should have strong mediation process skills and the temperament and training to listen well, facilitate communication across party lines and assist the parties with settlement negotiations. Judges of the court are responsible for mediation programs and asa result they need special training to be able to manage (ADR) program administrator as the key tasks are not ordinary judicial functions.

Training will provide judges with an introduction to the topic of Mediation as a new tool ofAlternative Dispute Resolution (ADR) and must be designed to give participants basic knowledge of the terms and definitions specific to Mediation, the need for Mediation in U.A.E, types of MEDIATION processes and their applications.

The content of the training course must provide Judges with a foundation to build upon, to use it in their professional lives, and provides a basic overview of MEDIATION that will be useful to policy makers who are interested in creating MEDIATION resources in their jurisdiction. MEDIATION derives its fundamental assumptions and practices from the interrelated fields of conflict resolution, negotiation, and communication. Thus, a good mediator, early evaluator, or is not only one who is knowledgeable about conflict resolution, but also one who is trained in negotiation and communication. Participants will therefore also be provided with a foundation in negotiation and communication skills, which will prepare them to participate in MEDIATION processes. Due to time considerations, the participants will be provided with basic information about these processes but will be trained uniquely in the process of mediation.

The workshop is to take place over a period of two days, with approximately six hours of training scheduled per day. The general focus of each day of the course is as follows: Day 1: Conflict resolution and conflict management. Day 2: Negotiation and communication skills with special emphasis on mediation phases Participants will be invited to put the knowledge learned during the course into practice.  They will participate in simulations in which they will play the role of mediator in a real-life dispute. These simulations serve a dual purpose: (1) to ensure the internalization of the skills learned during the workshop, and (2) to allow the instructor to view each participant’s mediation style and offer individual and constructive feedback.

TRAINING OBJECTIVES:

1.     To Reflect seriously on the mediation process to increase mediation and settlement conference confidence and effectiveness.

2.     To Learn the language of negotiation, mediation, and settlement conferences so that all these processes can be placed in a practical, conceptual framework.

3.     To understand continuing contributions from the fields of business, communication, psychology and law and their application to negotiation, mediation, and settlement conferences.

4.     To develop more effective personal negotiation skills within the context of mediation and settlement conference dynamics through practice exercises and case studies.

5.     To identify strategies in dispute resolution and apply them to actual cases.

By the end of the training, judges will:

1.     Have familiarity with Mediation terms and definitions;

2.     Understand conflict and how to resolve it;

3.     Understand basic negotiation skills;

4.     Be able to conduct mediation.

5.     Enhance their skills in negotiation skills.

These are some ideas of how to provide judges with fundamental training that is readily usable to achieve their goal and promote great public satisfaction. Over the years each (ADR) process has been successfully used for a wide range of civil and commercial cases around the world. Although all of them are still used in some places, mediation has become the clear “winner” as the most likely ADR process to be widely institutionalized in the courts and to be chosen by attorneys and parties for all kinds of civil disputes. I hope this will be the situation in U.A.E in the coming Future.