Enviromental Law -law Of Mediation In Jordan

University of Jordan Faculty of Business Department of International Business

Mediation

as a Dispute Settlement Method

Prepared by Mera Alhorani

Environmental Law Instructor: Dr. Haitham Haloush April - 2009 TABLE OF CONTENTS

INTRODUCTION 3

1

Apr. 26, 09

DEFINITION HISTORY TYPES

OF

MEDIATION CASES

OF

MEDIATION 4

OF

MEDIATION

ACCORDING TO THE

IN

JORDAN 4

JORDANIAN COURT 6 MEDIATION 7

WHERE PEOPLE RESORT TO

CASE

MEDIATION IS MEDIATION

A

BETTER SOLUTION

FOR

DISPUTE SETTLEMENT THE PROS

MEDIATION

IN

POPULAR DISPUTE RESOLUTION CENTERS

JORDAN? 10

MEDIATION 11

CONS

MEDIATION 11

TO

OF

CHOOSE

COUNTRIES AROUND IN

ISLAM 8

SUCCESS OF

AND

HOW

IN

IN

STUDY 8

JORDAN

A

MEDIATOR 12

THE

WORLD 13

AND AROUND THE

WORLD 14

Mediation as an ADR Method

Apr. 26, 09

INTRODUCTION Trials are costly and time consuming. It has been said that this is the

result of “too many lawyers, too many

lawsuits, and too many laws”. In fact, in Jordan over the last two decades the number of lawyers has tripled, the number of lawsuits has tripled, and the numbers of judges and courts have not kept pace. Thus, it has become important for the disputing parties to explore, understand and utilize alternative methods to resolve their disputes. In this concern the use of Alternative Dispute Resolution (ADR) to resolve disputes outside the legal system has .been growing in significance and popularity Jordan has witnessed recently huge development and progress in all the domains; especially in the economic sector. Moreover, the Jordanian population has increased rapidly, which naturally raises the disputes between .people and among the nation itself Since judicial law is responsible for settling these disputes, it has been quite clear and obvious that the number of judges available is insufficient and cannot satisfy the quick demand of the civil and commercial disputes run in Jordan and the world. Therefore, mediation has been created to offer a better and amicable dispute settlement resolution .for all the issues that arise in countries among its citizens

Mediation as an ADR Method

Apr. 26, 09

DEFINITION

OF

MEDIATION

A form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. Whether an agreement results or not, and whatever the content of that agreement, if any, the parties themselves determine the solution rather than accepting something imposed by a third party. The disputes may involve states,

organizations,

communities,

individuals

or

other

.representatives with a vested interest in the outcome Mediators use appropriate techniques and skills to open and improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. .Normally, all parties must view the mediator as impartial Mediation can apply in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and divorce or other family .matters

HISTORY

OF

MEDIATION

IN

JORDAN

As a matter of fact meditation has been known for a long time in the Arab and Islamic world, specifically in Jordan through the conciliation courts (mahakamt alsolh); which has been founded in 1952 in Jordan, in which a judge acts as a mediator trying to resolve the .case between the disputants without penalties on any of the parties In 2003 a group of judges based on the recommendation of the Ministry of Justice has discussed the idea of issuing a mediation law with the Prime Ministry. And it has issued a temporary mediation law as a method ofdispute settlement under No.37

which only deals .with civil issues

Mediation as an ADR Method

Apr. 26, 09

In 2004, the Rule of Law Initiative, in conjunction with Jordan’s Ministry of Justice, has been working to help increase the efficiency of Jordan’s court system, which has been embodied by expanding .the role of mediation throughout the country And in a real attempt to the mediation law, the Ministry of Justice has organized with the help of the Dispute Resolution Center in USA to train and develop the Jordanian judges and attorneys on using their skills to act as mediators. However, it is worth mentioning that the court system in Jordan is not a specialized; judges and attorney can acts as mediators and judges at the same time in all kind of .cases and matters In 2006 Jordan unveiled its first court mediation program, where Jordan’s parliament passed a mediation law that offers litigants the option of choosing mediation over litigation in civil issues. Moreover, Jordan has also recently established a Mediation Center, which is .located in the Palace of Justice In 2007 the minister of Ministry of Justice has ordered to define new centers for mediation in different courts around Amman and Alzarqa. So that it would be an initiative to spread mediation courts .and programs in all of Jordan by 2009 The mediation law 2006 for dispute settlement in civil issues in Jordan contains 14 acts; of the main acts I would like to mention the :following Article 3, section A pertains that "The Administrator of the.1 Lawsuits Judge, after meeting with the parties or their lawyers, have the authority to pass on any filed case to the Mediation Judge or to a Private Mediator upon the request of the disputants or their approval. In all circumstances, the judge shall consider the agreement of both parties on the ."nomination of the Mediator, as much as possible

Mediation as an ADR Method

Apr. 26, 09

Article 3, section B pertains that "The Parties in a dispute,.2 pursuant to the acceptance of the Administrator of the Lawsuits Judge or the Magistrate Judge, have the right to resolve their dispute by mediation by referring their dispute to any person they deem appropriate. In this case, the Mediator shall determine his fees coordination with the disputants. In case the dispute is settled amicably, the ."plaintiff shall retrieve the previously paid legal fees Article 7, section B pertains that "If the Mediator was.3 successful in reaching a complete or a partial settlement, he should present a report to the Administrator of the Lawsuits Judge or the Magistrate Judge enclosing the settlement signed by the disputants, the Judge in his part has

to endorse the settlement, and the settlement ."agreement is then considered a final judgment

Article 7, section E pertains that "At the end of the.4 mediation process, whether the mediation resulted in resolving the dispute or not, the Mediator shall return to each party any documents he received from that party. No photocopies shall be taken or kept by the Mediator or he ."shall bear legal responsibility to his action Article 8 pertains that "the proceedings of the Mediation.5 shall be deemed confidential. Any information used in the course of Mediation, shall not be used by the disputants ."before any court or before any other authority

TYPES

OF

MEDIATION

ACCORDING TO THE

JORDANIAN COURT

Judicial Mediation: it is applied when the "mediation• judges"

themselves

are

settling

the

dispute

in

the

Mediation as an ADR Method

Apr. 26, 09

preliminary and conciliatory cases. And they are assigned .by the prime judge of the preliminary court Private Mediation: it is applied when "expertise" like• engineers, lawyers, judges, and professionals of well known reputation are assigned by Minister of Justice himself to .settle a dispute Agreement Mediation: it is applied once the disputants• themselves assign a mediator to settle the dispute .between them voluntarily

Mediation as an ADR Method

Apr. 26, 09

CASES Preliminary cases: relegates

the

case

WHERE PEOPLE RESORT TO

MEDIATION

the judge in the preliminary case to

mediation, after meeting

the

disputants. Based on their request or based on their .approval the case is relegated to mediation to be settled Conciliatory cases: the judge in the conciliatory case relegates

the

case

to

mediation, after meeting

the

disputants. Based on their request or based on their .approval the case is relegated to mediation to be settled However in case the Mediation process did not succeed and the disputants did not solve their issues during the period defined by the court ; that implies that the mediator has to hand the judge a descriptive report explaining the situation, why the disputants could not conclude their dispute and the degree to which both parties .were committed to this process If the reason behind the failure of mediation in settling the dispute was the absenteeism of the parties and their lack of interest in this way; then the judge has the power to impose a fine "or penalty" that is not less than 250 dinars –in preliminary cases- and not less than .150 dinars –in conciliatory cases As for the mediation's fees; the judge regains absolutely nothing from the disputants. However, the private mediator regains half of the judicial fees in case he/she succeeded in settling the disputes between the parties, and in a condition that the fees are not less than 300 dinars. If they are less than this amount, then both parties .share the mediator' fees But in case the dispute was not settled between the parties by a private mediator, the mediator shall regain his/her fees based on the judge's estimation with not less than 200 dinars, who the claimant shall pay. As for the Agreement Mediation the; the

Mediation as an ADR Method

Apr. 26, 09

mediator shall define his/her fees with accordance and preapproval .of both parties

CASE

STUDY

Two contractors had a written agreement; where the claimant, party A has sued party B. party A is an Aluminum company and party B is a client of him. There initial agreement was to support B with aluminumfor all his house's windows in charge of a pre-agreed .amount of 24,000 dinars in period of two months The dispute rose in the delay of payment; where B did not pay all the A's fees according to the contract. The outstanding amount was 11,000 dinars. Now the claimant- the aluminum company- claims that he did not receive his fees completely. On the other hand the defendant – the owner of the house- claims that the work of party A was not done yet and was not according to the standards agreed upon in the contract. Therefore, party A did not commit to the due .date as mentioned in the contract Both parties agreed to settle the dispute amicably, using the help of a mediator assigned by the court. After the mediator asked for the proof of evidence from both parties he ordered party A to deliver all the aluminum ordered by part B according to the contract and to fix all the house's windows in a defined date. As for party B, he will pay half of the fees for party A at the beginning of the work and the next half after the derivable and the closure of this contract. Both parties .agreed to the settlement

MEDIATION

IN

ISLAM

Mediation and conciliation have been proved dispute settlement methods applied in Islam since long time ago; since the prophet 's (PBUH) days till now. There are multiple verses in the Quran that encourage using mediation to resolve and disputes between .Muslims themselves and Muslims with others

Mediation as an ADR Method

Apr. 26, 09

I will recite few incidents from the Prophet's era to proof my theory .and provide with real verses from the Quran as well As for proof of legality of mediation in the Sunnah, these are few :incidents The Prophet (PBUH)’s statement about the prisoners of the battle of Badr: “If “Mutaam Ibn Adii” was alive and intercedes to free these prisoners, I’ll do it for him”. The prophet willingness to made such favor to “Mutaam Ibn Adii”, despite being a polytheist “Mushrik”, because “Mutaam” had interceded for Rasulullah to enter Mecca from Taaif, when he was denied the entrance by the tribes of Mecca. Furthermore, he was amongst the prominent mediators to end the economic ostracism imposed on Muslims and the tribe of Bani .(Hashim by the tribes of Mecca in the year 4 (BH The mediation of Badil ibn Waqaa in the conciliation of Hudaybiyah made between Rasulullah and the monotheists of Mecca in the 6th .A.H As for real verses from the Quran, it recites that it is recommended when two spouses fight and find it difficult to settle the dispute between them , they can use the help of a mediator to settle the .dispute If a wife fears cruelty or desertion on her husband's part, there is” no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though human innerselves are swayed by greed. But if ye do good and practice self(restraint, Allah is well-acquainted with all that ye do” (An-Nisaa:128 The prophet PBUH himself used to mediate his best friend Abu Bakr .when a dispute arises between him and his wife 'Aisha

Mediation as an ADR Method

Apr. 26, 09

IS MEDIATION

A

BETTER SOLUTION

FOR

DISPUTE SETTLEMENT

IN

?JORDAN Despite the existence of a legislative framework for mediation in Jordan, the Law of Mediation falls between the Jordanian culture and .customs and enforcement of law Although mediation has been known in our culture for so long; through resorting to well known, respectful and elderly individuals for informal mediation has always been a customary approach into solving various kinds of disputes arising between individuals. The famous (‘atwa, jahat sulh, .. ) and other customary ADR mechanisms are still used in family disputes between a husband and a wife, car accidents, killing accidents, and other such disputes. But still the need to specify the nature and objectives of mediation, its relationship to other modes of interventions (notably the courts), the provenance and responsibilities of the mediator, and the conditions .under which mediation should be undertaken are crucial However, the statistics show that Jordan is the leading country among the Arab countries in applying mediation as a dispute settlement method, since 80% of the cases that have been turned to the mediation court have succeeded in settling the dispute. But I think that we still need specialized judges and a more built framework to establish a solid mediation system. In addition to educating the nation more to accept the mediation concept, along with

building

a

conciliation

culture.

After

all

it

has

been

recommended by our Quran and Sunnah, and already practiced by .our elders As sometimes people would refuse to resort to mediation; because .of their arrogance

Mediation as an ADR Method

Apr. 26, 09

It is worth mentioning that Mediation is not a suitable procedure for settling

disputes

in

all

cases.

Where

deliberate,

bad-faith

counterfeiting or piracy is involved, mediation, which requires the cooperation of both sides, is unlikely to be appropriate. Similarly, where a party is certain that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be .the appropriate procedure

THE

SUCCESS OF

MEDIATION

The success of mediation as a dispute settlement according to the :Jordanian law; depends on the following points Both parties shall accept the agreement settled by the• mediator. And this implies handing a descriptive report to .the judge responsible of the case The judge announces the final decision on the case to• .endorse the agreement The final decision of the agreement resulting from the• mediation process is binding ; non negotiable, and cannot .be invective The claimant shall regain half of his/her tuition in case the • dispute was settled completely , and shall regain all of his/her money in case the mediation was an agreement .mediation

PROS

AND

CONS

OF

MEDIATION

:The pros of mediation are Parties are given an opportunity to hear each other in a• .non-confrontational setting

Mediation as an ADR Method

Apr. 26, 09

The parties actively participate in the resolution of their• .dispute The parties retain control since all parties must agree to• .any settlement of their dispute in mediation There is the option to select a mediator who is skilled in• the subject matter of the dispute and experienced in the .negotiating strategy of the parties in dispute .It ensures confidentiality and privacy• Its costs are limited compared to procedures of litigation • .and arbitration .It takes into account the interests of both disputants• .It is a flexible process, and typically voluntary• .It allows disputants to maintain a friendly relationship•

:The cons of mediation are Both parties must agree to mediate. Sometimes , a party or both • parties may be completely unwilling to cooperate and agree to a .resolution One or both of the parties may be completely unwilling to• .compromise .It is possible to get an inexperienced mediator• It is not a good idea to mediate if an issue of law needs to be• .ruled on to settle the dispute between the parties It is not a good idea to mediate if one of the parties desires • .public disclosure of the matter to be mediated .Mediation may not save time or money•

HOW

TO

CHOOSE

A

MEDIATOR

The disputants initially should decide if they need a• specialized and trained mediator; who could judge in their

Mediation as an ADR Method

Apr. 26, 09

matter and help them settle their dispute based on his/her .experience and knowledge Any mediator shall disqualify himself in any proceeding in• .which his impartiality might reasonably be questioned A mediator should inform himself about his personal and• .fiduciary financial interests to the disputants Confidentiality is required for the process to be effective.• The assurance of confidentiality encourages parties to be candid and to participate fully in the process. A mediator’s ability to draw out the parties’ underlying interests and concerns

may

require

discussion

--

and

sometimes

admissions -- of facts that disputants would not otherwise .concede Note however, that in Jordan a mediator is an attorney or a judge in most of the times; although the disputants have the choice and .ability to choose their mediator

MEDIATION

IN

COUNTRIES AROUND

THE

WORLD

Although the concept of mediation has been encouraged by multiple nations, but still the Arab world is leading this system better than .Europe and eastern culture Since Islam and Arabs encourage conciliation and amicable dispute settlement methods; mediation, conciliation, and arbitration are mostly recognized for a long time now, and in previous eras, and the .history proves our words. After all Islam is the religion of peace Naturally mediation is governed by the nation's culture and mentality. Since eastern nations, specially the European nation, are an arrogant nation with high prejudice, they conceive mediation as weak process that lacks a solid structure. Therefore, they prefer litigation as it offers a structured system and a clear framework. But that does not exclude or neglect the great efforts USA, UK, Holland,

Mediation as an ADR Method

Apr. 26, 09

and Netherlands are exerting to train their judges and practice .mediation in its best way One of the most differences between the Arab world and the eastern world in practicing mediation is the culture which either welcomes amicable dispute settlement or rejects it. Now in Europe, ADR centers are still weak and in the process of creating solid laws. However, the differences in languages and cultures make the rules .and regulations of these centers variant Therefore, eastern countries except USA prefer litigation; since it is a more solid and structured system that resolve their issues. On the other hand, with the expansion of international business mediation solves the issues of long distant relations and businesses with a .minimum cost and time It is worth mentioning that mediation is mostly applied in Europe and USA in marriage disputes and custody cases, where it has .achieved admirable efforts in resolving these issues

POPULAR DISPUTE RESOLUTION CENTERS

IN

JORDAN

AND AROUND THE

WORLD

JCDR = Jordan Center for Dispute Resolution• Mediation Center = Court of Justice in Jordan• Arbitration and Mediation Center WIPO• (Brussels Business Mediation Centre (BBMC• United Kingdom Center for Effective Dispute Resolution• International Centre for Settlement of Investment Disputes• ((ICSID .International Institute for Conflict Prevention & Resolution•

Mediation as an ADR Method