General Counsel: Energy Sector (Middle East)

1. What is your perception of the benefits of mediation as a form of dispute resolution?

There are many benefits to mediation: it can enable parties to avoid lengthy proceedings and reach a prompt resolution to their dispute at a fraction of the cost. However, it is important that both parties approach a mediation at the very least being open to reaching a settlement — that will give legitimacy to the process.

2. Is there a lack of awareness and understanding about mediation within your sector? If so, what are the misconceptions about mediation?

Many lawyers approach mediation in an adversarial way — that is, after all, the training that most dispute lawyers have received. However, mediation should not be treated as a “mini trial”. The most effective mediations I have participated in are those where parties have taken a pragmatic approach and sought properly to understand their common interests to see if a mutual solution can be reached.

As to potential misconceptions regarding mediation, some people may misinterpret a willingness to mediate as a sign of “weakness” or a lack of confidence in your case, which is of course far from the truth. Most parties are interested in getting the best possible outcome in the shortest possible time and at the least possible cost — mediation should be seen as a legitimate dispute resolution mechanism to achieve those goals.

3. What are the challenges which influence your decision-making process when considering entering into mediation?

Whether a mediation is compulsory or optional, there can be challenges for each respective party to establish an agreed internal view on the parameters of any settlement outcome, as different internal stakeholders may have different perspectives and interests, all of which have to be properly assessed. It is, of course, also important to consider whether the other side is likely to approach mediation in good faith. Often, if mediation is a compulsory step in an escalation clause, some parties may approach it as a “box-ticking” exercise as opposed to a genuine dispute resolution mechanism. In those circumstances it can result in a waste of time and money for both parties.

4. Is mediation specifically included as a form of alternative dispute resolution in your company’s standard form contracts?

Yes (not always compulsory, sometimes optional).

5. At what point in a dispute would you consider initiating a mediation process and why?

It is usually part of the dispute resolution assessment before formally commencing proceedings (particularly if it is a step in a multi-tiered dispute resolution clause) and before costs begin accruing. However, parties should remain open to it (and indeed ought to continuously assess its suitability) as the case progresses.

6. What is your experience of appointing external mediators? Was this a straightforward process and what resources did you use to find the right mediator for your situation?

In my experience, appointing external mediators has been a very straightforward process. We have often been advised by our lawyers of reputable mediators, but there are of course other platforms such as the Centre for Effective Dispute Resolution (CEDR) that have a number of highly trained mediators, often with a particular area of expertise.

7. Have you seen an increase in the use of mediation in the Middle East since 2020?

As mediation gets traction in the Middle East, and some dispute resolution institutions have started offering mediation services, there has been an increase in the use of mediation in the region.

To illustrate, in April 2021, the United Arab Emirates (UAE) promulgated Federal Law No. 6 of 2021 On Mediation for the Settlement of Civil and Commercial Disputes (the “Mediation Law”). The Mediation Law provides a robust framework for mediations in the UAE and protects the confidentiality of the content and conduct of mediations. In order to promote ease and efficiency of mediations, the government has also established an “eMediation” platform called “Wasata”.

8. Have you experienced a hybrid mediation (where some or all participants attend online) and if so, was it as effective as an in-person mediation? What would be your tips for ensuring a hybrid mediation is a successful process?

I have not yet experienced hybrid mediation.

9. Have you seen an increase in the use of mediation in your sector since 2020? If so, what do you think are the causes at play?

I have not personally seen an increase in the use of mediation in the sector since 2020, but the reason for this is probably that mediation has been a well-known dispute resolution mechanism in the sector for quite some time (and is contained as a preliminary step in many of the relevant contracts).