General Counsel: Public Sector (Kuwait)

1. As General Counsel, what is your perception of the benefits of mediation as a form of dispute resolution for your organisation?

The benefits of mediation include resolving disputes with clarity regarding the outcome, which may enable future dealings with the adverse party. Additionally, expenses will be limited compared to other methods of dispute resolution, and mutual access to justice will be achieved. This approach aligns well with Kuwait’s traditional cultural emphasis on amicable resolutions to avoid the adversarial nature of litigation.

2. Is there a lack of awareness and understanding about mediation within your sector/jurisdiction? If so, what misconceptions about mediation do you encounter?

A disparity in perception arises between the new generation, which increasingly recognises the importance of mediation, and others in the legal arena, who do not fully acknowledge it as a valid method of dispute resolution. Misconceptions, such as the view that mediation is unjust, a forfeiture of rights, or a tilt in justice, stem from a lack of understanding of its core principles. However, note that in Islamic jurisprudence, there are multiple legal maxims that address mediation. One of these maxims states: “The reconciliation agreement (aqd al-ṣulḥ) is based (mabnāh) on leniency (alā al-musāhalah), concession (al-haṭṭ) and waiver (al-ibrā)” (refer to Al-Furooq by Al-Karabsi, Volume 2, pages 255 and 256).  

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

One of the biggest challenges in Kuwait is the lack of clear procedures in judicial regulations that allow for engagement in mediation in disputes in which the state is a party. Given that the state plays a significant role in the economy — either directly through contracts with government entities, or indirectly through companies executing these contracts — there is often no established mechanism for resolving disputes through mediation procedures. Further, Kuwait has not yet joined the United Nations Convention on International Settlement Agreements Resulting from Mediation, known as the Singapore Convention on Mediation. However, Kuwaiti law addresses reconciliation procedures through several articles in Decree-Law No. 38 of 1980 on the Civil and Commercial Procedures Law. For example, Article 67 states that: “The court shall begin by seeking mediation between the opponents. If reconciliation is not achieved, it shall order that any requests or defences made orally by the opponents or their agents be recorded in the minutes of the session, and the defendant shall be the last to speak”. Once the reconciliation agreement is ratified by the court, it is considered an enforcement instrument through which execution may proceed (refer to Article 190 of the Code of Civil Procedure). Additionally, Decree-Law No. 67 of 1980 of the Civil Code at Articles 552 to 560 contains provisions related to reconciliation agreements, covering their definition, pillars, effects, and potential invalidity.

4. Is mediation specifically included as a form of alternative dispute resolution in your organisation’s standard form contracts? If so, why? If not, would you support the courts being able to mandate mediation by parties to a dispute?

Government contracts do not contain a clause providing for parties to engage in mediation in the event of a dispute. Note that a decision by the Kuwaiti Council of Ministers prohibits the inclusion of an arbitration clause in government contracts, and requires recourse to the judiciary to resolve disputes that may arise between the parties to the agreement (Cabinet Resolution No. 11 of 1988), which, by extension, has influenced the absence of other ADR mechanisms like mediation. While Kuwaiti law requires courts to initiate proceedings by seeking reconciliation (to mediate) between parties, this process is often procedural, and yields limited practical results. This court-led process of “reconciliation” differs significantly from structured mediation. Given this context, I see a pressing need for legislative amendments to introduce and regulate the mediation process. Such amendments could also address Cabinet Resolution No. 11 of 1988 to allow for mediation clauses in government contracts.

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

Engaging in mediation is most effective before formal legal proceedings begin when the parties have a clear understanding of the dispute’s dimensions. However, if the nature of the dispute is not clear, or litigation procedures will result in the disclosure of critical information and documents, or the relationship between the parties lacks the necessary transparency (such as in cases involving allegations of fraud or concealment), then engaging in mediation is delayed until the later stages of the dispute or perhaps even after initial discovery has taken place within the legal proceedings.

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?

Appointing external mediators is not always straightforward, as it requires mutual agreement between the parties on the most suitable mediator for the nature of the dispute and ensuring there is no conflict of interest. To navigate this, we leverage experienced lawyers within our team to suggest alternatives and use open sources of information to aid in selecting the right mediator. This process involves assessing the mediator’s expertise, neutrality, and knowledge of cases involving government disputes.

7. What steps do you think are key for GCs to take to maximise the chances of a successful mediation?

The following actions, in my opinion, are crucial to increasing the likelihood that mediation will be successful:

• Preparation and communication, by giving the relevant departments a thorough and accurate explanation of the mediation process.
• Preparing a mediation paper, which is submitted to the parties, to clarify all considerations for the parties involved.
• Co-ordinating with the relevant parties to ensure that the mediation result achieves the requirements set by them. This involves ensuring that the negotiating team has the authority to make decisions on accepting terms agreed within the mediation within defined parameters.
• Choosing a skilled mediator with expertise relevant to the dispute.
• Setting realistic objectives and aligning all stakeholders on achievable outcomes.
• Fostering a co-operative attitude throughout the process, focusing on mutual gains while safeguarding organisational priorities.

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?

No, hybrid mediations have not been effective in my experience, as they are hindered by challenges such as technological reliability, unfamiliarity with virtual processes, and the difficulty of building trust and full engagement in the mediation. While such methods are useful when there is difficulty in attendance, they may not suit many disputes.

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?

Although I primarily deal with foreign jurisdictions and cross-border legal proceedings, I have certainly noticed an increase in the use of mediation. This rise reflects the parties’ interest in anticipating likely outcomes and resolving disputes quickly and transparently, ensuring a process that serves all parties effectively.