Under DIAC Mediation Rules 2023
The DIAC Mediation Rules 2023 is a comprehensive document issued by the Dubai International Arbitration Centre (DIAC) outlining the procedures and guidelines for mediation. These rules, effective from 1 October 2023, provide detailed definitions, general principles, and specific processes for commencing mediation, including the roles and responsibilities of the mediator and parties involved. The DIAC Mediation Rules also covers aspects like costs, appointment of mediators, conduct of mediation, conclusion, confidentiality, and the functions of the DIAC Centre and Arbitration Court. Appendices provide forms and fee structures, and recommended clauses for future and existing disputes are included. https://www.hilalassociates.com/arbitration-mediation.html
Initiating the mediation process
Initiation of the Mediation Process:
- The mediation process under the DIAC Rules is initiated when the Requesting Party submits an Application to the Centre.
- This Application shall adhere to the format outlined in Appendix 1 of the Rules.
- Upon submission, the Requesting Party is also obliged to send a copy of this Application to the Responding Party, ensuring both parties are equally informed and engaged from the onset of the mediation process.
Response by the Responding Party:
- Subsequent to the notification of the Application, the Responding Party is required to submit a Reply within a 15-day timeframe.
- This Reply shall conform to the specifications detailed in Appendix 2.
- Similar to the Requesting Party’s obligations, the Responding Party must also send a copy of their Reply to the Requesting Party, thereby maintaining a transparent and bilateral communication channel.
Provision for Time Extension:
- In certain circumstances, the Responding Party may request an extension of up to 7 days for filing their Reply.
- However, this extension is contingent upon the Responding Party’s express consent to refer the dispute to mediation under the Rules. This provision ensures flexibility in the process.
Implications of Non-Response:
- If the Responding Party fails to submit a Reply within the stipulated time frame, or within any additional period granted at the discretion of the Centre, it is interpreted as a lack of consent from the Responding Party to proceed with mediation.
- In such cases, the Rules dictate that the mediation shall not proceed. This provision ensures upholding the principle of mutual agreement in proceeding with mediation.
Commencement of Mediation:
- The formal commencement of mediation is marked not merely by the exchange of Applications and Replies but by the Centre’s written confirmation under the consent of both parties acknowledging their agreement to mediate.
- This confirmation signifies the official start date of the mediation process, encapsulating the essence of mutual consent and formal procedural adherence.
Appointment of Mediator
Article 6 of the DIAC Mediation Rules 2023 outlines the procedure for the appointment of mediators. This article is critical in ensuring the selection of a mediator who is impartial, qualified, and acceptable to all parties involved in the dispute. The key points are as follows:
6.1 Mediator Appointment by the Arbitration Court:
The Arbitration Court is responsible for appointing all mediators. Even when parties agree on a mediator, this agreement is interpreted as a nomination for appointment by the Arbitration Court under the Rules.
6.2 Nomination Time Limits:
Parties may jointly nominate a mediator or co-mediators within a specified time limit, which can be determined by:
- The agreement to mediate,
- An alternative time limit agreed upon by the parties, or
- A time limit granted by the Centre.
6.3 Absence of Joint Nomination:
If the parties do not jointly nominate a mediator within these time limits, the Arbitration Court will nominate and appoint the mediator.
6.4 Considerations for Appointment:
In appointing mediators, the Arbitration Court considers any agreed nomination methods, the nature of the transaction and dispute, the mediator’s nationality, location, qualifications, experience, and the parties’ language and other relevant circumstances.
6.5 Single Mediator as Default:
- Unless otherwise agreed by the parties, a single mediator is appointed.
- The Arbitration Court may suggest co-mediators, but the final decision rests with the parties.
6.6 Mediator Appointment Timeline:
The Arbitration Court aims to appoint the mediator within 7 days from the commencement of the mediation as per Article 3.5.
6.7 Prospective Mediator’s Obligations:
Before appointment, a prospective mediator must:
- Sign a declaration of acceptance, impartiality, independence, availability, and nationality,
- Provide an up-to-date curriculum vitae,
- Disclose any potential conflicts of interest.
6.8 Ongoing Duty of the Mediator:
The mediator must remain impartial and independent, with a continuous duty to disclose any potential conflicts of interest or circumstances that might question their impartiality or independence.
6.9 Objection to Mediator Appointment:
- Parties may object to the mediator within 5 days of notification, providing detailed reasons.
- The Arbitration Court will review and, if necessary, appoint a replacement mediator.
6.10 Transmission of File to Mediator:
The Centre sends the file to the mediator after the expiration of the objection period, assuming no challenge has been raised.
6.11 Mediator’s Right to Resign:
A mediator may resign for any reason, notifying the Centre and the parties in writing.
6.12 Mandatory Resignation:
A mediator must resign upon:
- Joint written request by all parties, or
- If they become incapacitated and unable to perform their duties.
6.13 Replacement of Resigned Mediator:
Upon resignation, the Arbitration Court appoints a new mediator within 7 days, following the provisions of Article 6.4 of the Rules.
Conclusion
In conclusion, the DIAC Mediation Rules 2023, effective from 1 October 2023, represent a comprehensive and structured framework for the facilitation of mediation in the UAE. These rules, meticulously crafted by DIAC, provide clarity on every aspect of the mediation process—from initiation to the appointment of mediators, ensuring transparency and efficiency. The detailed provisions regarding the submission of applications and replies, the appointment process of mediators, and the adherence to principles of impartiality and independence, underscore the commitment to a fair and equitable mediation process. These rules are instrumental in fostering a conducive environment for dispute resolution, emphasizing the importance of mutual consent, confidentiality, and the crucial role of mediators.
As the mediation landscape continues to evolve, the DIAC Mediation Rules 2023 serve as a robust guideline for practitioners and parties alike, aiming to streamline the resolution of disputes with professionalism, integrity, and respect for all involved.
Author’s Bio:
Nikhat Sardar Khan, a distinguished legal expert with extensive experience in the UAE’s legal landscape, currently heads the Department of Litigation, ADR and Corporate at Hilal & Associates Advocates & Legal Consultants. Her expertise encompasses complex litigation and dispute resolution in commercial matters, banking, finance, corporate practice, and more. As a qualified arbitrator and experienced mediator, she holds certifications from prestigious institutions like the Chartered Institute of Arbitrators (FCIArb) and The Royal Institution of Chartered Surveyors (RICS). Her legal acumen, honed over decades of practice in both India and the UAE, positions her as a formidable figure in the field of law.
Nikhat Sardar Khan (FCIArb)(RICS)
Head of DIFC Litigation, Corporate & Arbitration- UAE,
MENA and India.
Arbitrator | Mediator | DIFC Practitioner
Email: nikhat@hilalassociates.com