Dubai readies for mediation

In November 2008, Rics formalised a relationship with Rera to assist Dubai in setting up dispute resolution procedures in property disputes.

As part of its support for the establishment of the new Dubai Mediation Centre, Rics Dispute Resolution Services is committed to providing regular accredited mediation training in the Gulf, through its UK-based trainers. The second of these courses was run in Dubai in December 2009. By this means, a pool of specialist Rics Accredited Mediators will be available to help deliver the service.

The Mediation Centre could have a huge impact in cost and time saving and the preservation of long term commercial relationships, in what is likely to be a busy sector for the foreseeable future. This is a direct reflection of both the real estate market in Dubai and the resultant growth in the number of disputes.

Any economic downturn acts as a driver for disputes, and these normally form the basis of a sharp surge in litigation and arbitration. This has led to increased levels of interest and use of arbitration in the UAE, particularly in the construction sector.

The new Dubai Mediation Centre is a welcome proactive response by real estate regulatory bodies, with the intention for the participants to agree the settlement of real estate disputes.

Mediation is a voluntary, non-binding, and private dispute resolution process in which a trained neutral person - the mediator - helps parties to a dispute, or other impasse between them, try to reach a negotiated settlement for themselves, with or without the assistance of their own professional advisers. It is both Shari'a compliant in its philosophy and well regarded as an established international dispute resolution process. In most cases mediation cannot take place unless the parties agree to enter the process, although the intention of the new Dubai law is that parties will have to engage in it before they can enter the Property Court.

Mediation is also possible with the participation of all parties, and will cease if one party leaves the process. Mediation is also truly voluntary, as entering the process does not bind the parties to reach settlement. Settlement can only come about on the authority of the parties concerned, as the mediator has no authority to make a binding determination. If a settlement is reached, the agreed terms when reduced to writing, will form part of an enforceable contract.

The entire process is confidential to the extent local law permits. This means that parties can conduct themselves in the mediation, for example by disclosing information, expressing views, making suggestions or offering concessions, relatively safe in the knowledge that this will not preclude them arguing a different position should the matter proceed to trial.

The role of the mediator and the confidential nature of mediation negotiations help parties to focus on, and realise their true needs and interests, which may be far removed from what a court, an adjudicator or an arbitrator might ordinarily have jurisdiction to order.

Mediation generally provides both client and professional satisfaction in terms of speed, cost, flexibility of outcome and confidentiality. Mediation practitioners recognise that a negotiated outcome to a dispute is usually more satisfying, more workable, more flexible and more durable than an order imposed by a court or other tribunal.

In nearly all jurisdictions the success of mediation comes with educating both professionals engaged in dispute processing - lawyers and construction professionals - and their clients, of both the process and its benefits. Thus those intending to mediate and appear for parties in the new Mediation Centre will require proper training and experience for clients to reap the true benefit.

Alan England is Rics director, Menea (Middle East Near east and Africa). He began his career at the UK's Wimpey homes, has been working throughout the gulf for the last 10 years. Alan opened the Menea regional office, based in Dubai, in 2007.

The opinions expressed in this column are of the author and not of the publisher.