Lawyer Monthly - August 2022

“Mediation for the Settlement of Civil and Commercial Disputes” (“Mediation Law”). This law provides a holistic and robust structure for mediation practices in the UAE. Historically, parties have shown an unwillingness to use mediation since there has been a longstanding lack of a robust legal framework and concerns about ‘without prejudice’ communications. These issues were initially undermining parties’ confidence in the process. However, the enactment of the Mediation Law has resolved these issues, and it upholds ‘without prejudice’ communications. Abu Dhabi Global Market Courts also launched their court-annexed mediation services in 2019. All such statutes or services are also applicable to the mediation of marine construction and dredging works disputes in the UAE. The UAE Mediation Law deals with two types of mediation regimes, i.e. judicial and non-judicial mediation (Chapters 2 and 3 of the Mediation Law). Judicial mediation commences after the parties refer the matter to the court. If parties agree to mediation or the court decides at any stage of the proceeding that 53 AUG 2022 | WWW.LAWYER-MONTHLY.COM THOUGHT LEADER - KUNAL MISHRA mediation is necessary, the court refers the matter to an appointed mediator. Non-judicial mediation commences before parties opt for litigation. Here, the parties can directly contact the centre to commence mediation with a particular mediator. On an international level, in Saudi Arabia, the SCCA provides mediation services through its rules modelled on the ICDRAAA Rules. In Qatar, Law No. 20 of 2021 on Mediation encourages mediation. In India, there is court-referred and private mediation. In the UK, the court is empowered to encourage mediation, provided both parties consent to it. Whereas in Australia, the court can compel parties to opt for mediation irrespective of their consent. In your experience, what marine and dredging matters are most commonly tackled through mediation and ADR more broadly? The marine construction and dredging industries have developed much faster throughout the world in the last three decades. With the greater degree of complexity, stringent technical specifications of reclamation works, lack of strict compliance with environmental authorities and involvement of multiple stakeholders in projects, the parties experience many disagreements that lead to disputes. In my experience, these dispute matters generally relate to errors in design, quality issues of reclamation, adverse site conditions, poor contract administration, variation in scope, delayed payments and delays more generally. As the dredging operations are inherently risky, the occurrence of commercial and operational types of disputes is prevalent. I see that mediation is not suitable for all kinds of disputes. Mediation will be inappropriate when the dispute relates to establishing a legal precedent, if one of the parties is absent, or if that party has no interest in reaching a settlement. Furthermore, some disputes may be resolved by arbitration when parties feel that the court procedures would be time-consuming and expensive and Kunal Mishra Contracts Engineer National Marine Dredging Company ICAD I, Mussafah Street 16, Abu Dhabi, UAE 3649 Tel: +971 564-484-354 E:

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