David Hodson on International Family Law: Mediation in Dubai
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Jun 21, 2012, 07:00 AM
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It doesn't appear on most itineraries of holiday companies; morning: visit to the Dubai family courts, afternoon: at leisure, evening: trip to the gold souk. But in 2002 when on holiday in Dubai and out of interest of seeing a family court in action in an Islamic jurisdiction, I telephoned the general court telephone number, explained I was a family lawyer from England, was made very welcome and shown around the courts, given a very sweet cup of tea and then introduced to one of the judges who explained more about the system. It was absolutely fascinating. A legal process very open and welcoming, and specifically aware of the tensions between the Islamic code and the large expat community. In particular it strongly encouraged mediation and dispute resolution. There were a few rooms at the court set aside for this work
Last week I was in Dubai again, conducting a couple of mediations with my colleague, Denise Carter OBE, and in business meetings also with our colleague, Ann Thomas. Local advocate and leading family lawyer, Mrs Awatif Mohammed Khouri of Al-Rowaard Legal Consultancy, introduced us to the mediation centre including very experienced mediator and family counsellor, Sayed Mohammed Zafer, and a meeting with Abdul Salam Mohammed Darwash, Head of Family Guidance and Reformation, in effect in charge of the family mediation work. In the intervening 10 years, the Dubai Mediation Centre has expanded dramatically. It now has a separate entrance from the courts itself. It is known as the Centre of Amicable Settlement of Disputes, an interesting rephrasing just as we have moved to refer to dispute resolution in this country. Dubai family law is essentially an Islamic code but set out in a very similar fashion to the French code, because of historical reasons. So divorce, children, maintenance and property are quite separate although under the overall title of Family Actions.
The Centre contacts the parties to try to negotiate a settlement. They look at opportunities for a reconciliation as part of a holistic approach and the general importance given by Islam to the continuation of family life. But as 10 years ago, they are very realistic and are often resolving the dispute itself. They use the same mediation tools which are adopted by mediators worldwide. They may have certain advantageous elements such as the encouragement to settle rather than litigate within a particular culture. But family disputes in mediation exhibit the same deep-seated emotional and positional differences across the world. Mediation is very hard work, in all countries.
The Centre has just published a 3 year plan (2012 - 2015) in which they intend that 66% of disputes are resolved without the need for court hearings. This is high. Apparently about 6 years ago, the figure was 40%. It is now 60%. They appreciate that the remaining cases are the more hard to settle ones, and hence only 6% targeted improvement in 3 years as distinct from 20% over the previous 6 years. Dispute resolution policy makers worldwide are discussing how to resolve these remaining hard to settle cases: one reason incidentally why England has recently introduced an arbitration scheme, where mediation is not possible and yet the parties want to avoid court hearings
So I asked Abdul Darwash how this 6% increase in the "harder to settle" cases would be achieved. He said there were two reasons.
First, there will be greater skills and training and expertise of the mediators. Although they are not adding to the numbers of mediators, the existing mediators expect better training and skills to increase their success rate. These are not part-time mediators, doing the work alongside other work or doing a wide range of mediation work. These are some of the best mediators around, in a court system fully focused on resolution in family disputes, concentrating on particular issues in those disputes, and already having an acclaimed high success rate. Yet they acknowledge the benefits of greater skills training. Mediation is a real and difficult skill and many countries have found success lies in the work being handled by mediation specialists in particular narrow areas of family law work who then do a significant amount of that work, thereby building up expertise and experience. I know this is an issue in England where there is a different school of thought held by some mediators about the benefits of being general mediation practitioners.
The second reason given was greater education and information to the public. They were convinced that if there was better information for the public in advance of court proceedings, and of the many and wider benefits of resolving matters without court hearings, then there would be more commitment to resolving matters through mediation and similar dispute resolution. The Dubai court produces a range of very helpful literature, in English and Arabic. They have interactive computer screens in the reception area to inform and educate. Specifically they now have a separate area set aside from the courts themselves although in the main court building complex and which is specifically directed to alternative dispute resolution. There is a separate waiting area, naturally segregated between men and women, with available information. There was a real buzz of activity and the mediators and their staff were clearly very busy. This was not a calm and therapeutic environment, as some find most suitable. This was a busy commercial location with serious professional work being undertaken and very successfully. I found parallels with the Australian Family Relationship Centres in the commitment and very hard work of the men and women in those Centres, whether front desk, mediators or those in charge.
It is trite that the world is getting smaller and we have much to learn from each other. Certainly the Dubai family court and family law process is continuing to strive ahead in its own cultural and legal context to encourage out-of-court resolution. All ADR professionals will wish them much success in their three-year strategic plan and increasing the number of cases resolved out of court through their Mediation Centre.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.