Mediation is a well known international dispute resolution process and one with which the construction industry is very familiar. Mediation as a concept is not new in the Middle East but its use as a dispute resolution solution in construction disputes is very much in its infancy.
In most cases the parties to a construction dispute in Qatar are a combination of local and international companies. During a dispute it is common for distrust to grow between the parties but in cross cultural disputes a lack of confidence in and suspicion surrounding the dispute resolution process sets in too. Nervousness can arise from perceived lack of transparency in the local court process or through a lack of understanding of ‘international’ arbitration; questions may be raised regarding the independence of an engineer making a determination or the qualifications of a court appointed expert.
Against this background, mediation has the advantage of being a process in which both parties can trust. The process is controlled by and the outcome is determined by the parties themselves. Mediation is a consensual process, typically the parties agree who acts as mediator, they agree on the timing, the material the mediator sees and the agenda for the mediation itself. The mediator is an independent third party tasked with facilitating an agreement between the parties. He is not a judge, he does not declare which party is right or wrong, he does not dictate the outcome.
The benefits to mediating over proceeding all the way to a judgment or award in litigation or arbitration are: flexible process; creative solutions; speed; less expense; more likely to maintain a working relationship between the parties.
For mediation to be successful in Qatar may demands a shift in mindset. Historically, culture has attributed less value to time and put more emphasis on fairness and reaching the just conclusion. Saving the costs of litigation has less impact in Qatar – in court a losing party usually has to pay very little contribution to the winning party’s costs.
Some have concerns regarding the ability of a party to make available an individual with full authority to settle but there are ways around that such as giving representatives pre-authorised settlement parameters.
Concerns surround the enforcement of mediation agreements although the reality is such an issue should arise infrequently given that both parties have agreed to the documented solution. Mediation agreements would be enforceable as contracts. Another fear is that the principle of “without prejudice” does not apply, confidentiality agreements are common but trust in the treatment of information made available contrary to such an agreement may cause some hesitation.
Nothing above is cause for concern. Increased knowledge of the process and benefits of mediation and some success will create a pathway for others and quickly increase confidence in the process.
Mediation training and accreditation is being provided in Qatar so local mediators are available.