After many years of attempting to pass a legislation regulating mediation in court. The Kingdom of Bahrain recently passed the Legislative Decree no. (22) of 2019, issued on the 1st of October 2019, regulating dispute settlement through mediation. This legislative decree introduced court mediation in civil, commercial, and criminal matters, which intends to achieve the interest of the parties while avoiding litigation, mainly, with the intent to alleviate the burden on the courts.
After the issuance of the Legislative Decree, the Minister of Justice, Islamic Affairs and Endowments, issued two regulations which include detailed procedures for mediation. Firstly, Regulation no. (126) of 2019, regarding the executive regulations on court mediation. Secondly, Regulation no. (32) of 2020, regulating mediation in criminal matters. We all may agree that mediation has been used with great success to resolve a wide variety of disputes. As the field of mediation continues to grow and enlarge in its scope, many jurisdictions have adopted court mediation in different areas of law as a time-efficient method to resolve conflicts. Nonetheless, mediations that occur under the auspices of the court are very distinct to those that occur privately.
Mediation in Civil and Commercial Matters
The Decree clearly stated that the subject matter of mediation in civil and commercial matters, must be capable of settlement. If the subject matter is not capable of settlement, mediation will not be permissible. The parties may agree before filing a lawsuit, to settle their dispute through mediation. Also, during a hearing, the court upon an agreement by the parties, may refer the dispute to mediation. The mediator is appointed according to the agreement of the parties, whether the mediator was one of the certified mediators registered at the Ministry of Justice or an external mediator they wish to appoint. Although, If the parties could not agree on a mediator, the president of the high civil court shall appoint one of the mediators registered at the Ministry of Justice, based on a request submitted by one of the parties according to the mediation referral agreement.
Furthermore, the parties shall agree on the rules of mediation. In the event of disagreement, the mediator may conduct mediation according the rules he/she deems appropriate, taking into consideration the wishes of the parties, in a manner that does not contradict the public order. The mediator may also, at any stage of the mediation process, propose a solution to the dispute. In all cases, during the mediation process, the mediator must be fair with due regard to equal treatment between the parties, while taking into account the circumstances of the dispute. If the mediator during the mediation process, settles the dispute, the settlement agreement shall be in writing. Subsequently, constituting a binding and enforceable settlement agreement.
Mediation in Criminal Matters
After the approval of the Supreme Judicial Council, the Minister of Justice, Islamic Affairs and Endowments, issued the Regulation no. (32) of 2020, regulating mediation in criminal matters. Which excludes a few provisions stipulated in the aforementioned law. In Bahrain, like many other jurisdictions, mediation in criminal matters is a relatively unexplored concept.
Article (2) of the regulation previously mentioned, states that the subject matter of the crime must be capable of settlement, without specifying the types of criminal disputes that may be mediated. Mediation in criminal matters differs from other types of mediation because it brings together a perceived victim and his offender or perpetrator, as some jurisdictions refer to it as “Victim-offender mediation”. Mediation in criminal matters is one of the articulations of restorative justice, which tends to advance the criminal justice system.
Mediation in criminal matters begins after the parties agree on mediation as an alternative to litigation. The mediator appointed may be amongst the criminal mediators registered at the Ministry of Justice or an external mediator the parties wish to appoint. The competent court may start mediating these criminal matters, if requested by the parties, at any stage of the case.
The parties may agree on the rules governing mediation in criminal matters. If the parties couldn’t reach an agreement on the applicable rules, the mediator has the right to conduct mediation in accordance with the rules he/she deems appropriate, whilst considering the wishes of the parties, in a manner that does not contradict the public order. During the mediation process, the mediator must adhere to the principle of equal treatment between the parties, while taking into account the circumstances of the crime. Moreover, the mediator at any stage, may suggest a settlement proposal, without having the authority of imposing it on the parties.
All procedures and information presented during mediation are confidential, within the limits of the crime agreed upon. Unless disclosure is required by law, or with the intention of preventing a felony or misdemeanor from occurrence, or reporting its occurrence, or for the purposes of implementing the settlement agreement. Predominantly, the mediator, parties, and any other person involved in the mediation process, may not testify against any of the parties to the conflict in any matter reached to their acknowledgment through the mediation process.
One of the advantages of mediation is that the mediator can meet privately with either party to explore their strengths and weaknesses, with respect to the legal and factual issues. Therefore, the mediator may privately visit the accused or suspect in the criminal case in prison, in accordance to the applied provisions carrying out the visit. In addition, all meetings must be attended by the parties themselves, whether physical presence or virtual, or by their legal representatives. It is not permissible for others to attend the meetings, unless the parties agree otherwise.
During the mediation process, if the mediator reached a settlement agreement, the agreement shall be in writing. Furthermore, the settlement agreement at any stage of the case, shall be presented to the competent court or public prosecution, depending on the criminal case. According to article (15/2) of the resolution previously mentioned, states that if a settlement agreement is reached after a final judgement has been rendered, in cases where it is permissible to settle through mediation, the settlement agreement shall be presented to the judge responsible for execution of the judgement.
When mediating criminal matters in a crime involving multiple victims, the settlement agreement shall not be in effect, unless the agreement is issued from all of them or from their heirs or personal representatives of each of them. Mediation in criminal matters may not only end when the parties reach a settlement agreement, it may be terminated if either party does not wish to continue with the mediation process, or if the mediator after consulting the parties believes that further mediation efforts would be futile.
In the end, mediation as an alternative dispute resolution method, is governed by the principle of consent. Therefore, the mediation process begins only when parties themselves agree to mediate. The Bahraini Law further permits the parties to appoint the mediator of their choice, whether a mediator registered at the Ministry of Justice or an external mediator they wish to appoint.
Mediations that occur under the auspices of the court has many advantages, specifically the fact that there is supervision and guidance from the court in some circumstances. In addition, mediation may be terminated at any time during the process, by a request of any of the parties, in which the dispute shall be referred to the competent court.
Offering mediation through Bahrain’s national courts, as an alternative to litigation, in my opinion, will alleviate the burden on courts. As some cases may generally come to an end much faster than in litigation. Many disputants will prefer mediation over litigation, mainly to allow the parties themselves to participate in resolving the dispute, which in the end, are more likely to carry out willingly. Also the disputants, most likely, will be satisfied with the outcome when it is conducted in a non-coercive manner, which offers them the freedom to reach a voluntary agreement.