[Music] [Music] problem in this regard is that I see a lot of I guess a lot of challenges when it comes to my name isAhmed Elnaggar and this is Monday Legal good morning my guest for today is Christine Maksoud she's a senior lawyer at Al Tamimi & Co and she is the founder of the Mediation Hub MENA good morning and thank you so much for coming thank you so much good morning Ahmed a lot of our audience are not legal experts and they are not even lawyers so I would like that you explain in very simple language uh what is mediation and what exactly means for uh commercial deals or for commercial conflicts or partnership agreements or anything of that sort how does it help the public sure so in very simple terms um mediation is a process it's a tool that you can use to solve any commercial or civil disputes that you have if you're addressing commercial uh business Community now I mean any any dispute that you have you can actually solve it through mediation the way it works is that you appoint a neutral third party this third party usually should be accredited should have some certain um uh uh accreditation or uh courses in mediation also should be a trained as it could be as a lawyer or any other profession it depends but mainly it should have some legal background um for for his input to be more let's say valuable to to the case and this neutral third party would intervene uh between the parties and try to facilitate communication um you know for a certain period of time you can agree with the mediator is a very voluntary process is flexible you have control over it you can decide how many sessions how long it will take uh who's the mediator actually what kind of background he will have um you can actually also tailor any settlement you would agree on with the other party no matter how complicated it is or it has uh business uh components or technical components or it's forward-looking or even on past issues so literally it is in the control of both parties to design any settlement they want as opposed to going to court or to arbitration and then a third party who might not really have a good understanding of the background of the case would actually just read documents you know in a very short period of time he doesn't know considerations that you would have and also the lawyers that are representing the clients do not really know everything about their business and what they need so um they get second or third hand you know um version of the story as opposed to you being the person who is um uh involved and concerned sitting there and you finding a solution uh to your problem right why why would why would the mediation be more successful than the regular negotiation that the businessmen can do with each other I mean they at the end the conflict would happen between partners or between uh a company and a supplier or its customer why would it be more successful than the negotiation that they can just do sure and we again ask this question a lot to be honest um and the simple answer is you're not negotiating direct when you negotiate directly you usually have this adversar adversarial approach right and you're not collaborative and you don't disclose really your interests you just want stick to position and two people sticking to position there's limits to what they can actually negotiate for the the advantage of having this neutral third party is actually you can disclose certain confidential information that you would wouldn't really do um in the nor in a normal setting of negotiation you could use this third party neutral to deliver certain messages to achieve certain objectives uh to design certain negotiation strategy um and look when when when a neutral third party hears both parties uh with their claims and try to dig deeper beyond the position that they are presenting dig deeper into the needs let's say this is where they can see potential common ground for uh for settlement which is not usually available when you negotiate directly with the with the other party do you think the cost element would be uh uh something that will let conflicting parties go to mediation rather than courts or or arbitration the traditional ways for conflicts what I usually say is going to mediation is not as opposed to is more like just do it as a first step regardless so whether it ends up with a settlement great if not you would actually at least identify the issues in questions does it work for smaller siiz companies like the the smmes or even the micro businesses that is I don't know uh started between two friends for example if they're in a start up a um coffee shop or something like this or it works only for bigger uh Enterprises both both effectively to both um I mean for for small businesses for smmes I mean they have the interest to go to mediation because they don't want to spend their their funds or their investors money on on uh on legal fees right and and they're busy building something they don't want to waste time and resources on on on litigation and legal teams you know one of the reasons why maybees should should in particular move choose mediation as opposed to another um mechanism for big companies it's the same I mean there are a lot at stake as well I mean you could lose your market share you could lose a lot by I mean it depends on the dispute of course but really sometimes time is of the essence and uh um even for big corporations because of all the the risks and everything that at stake is actually a good idea to go to mediation and we see a lot of big corporations and multinationals have a corporate policy to include mediation in their in their contracts and for a reason and also I would say any dispute in general that has an element of uncertainty it's good to go to mediation if you don't know what is the applicable rule or if there is a lot of complexity that you think you know a judge would not really be able to to decide on it a lot of business uh considerations or even technical um I think it would be um you know suitable for for mediation in general okay I'm sold uh I like it it's it's amazing are you going to put it in your retainers uh agreement well well that's actually very good idea I would put it I I would think which which one which service that uh that requires this uh this element and I think it would be a very interesting uh uh addition and I would be speaking to my clients about it and I think it it makes a lot of sense and also you would uh preserve the relationship with your clients I mean how many times you have so many unpaid bills but you keep you know you know pushing and pushing and pushing but you can't do more than you know how many times did you actually sue a client for for legal fees maybe I can't say that here but I did yes you did yes okay you see I mean but but that's it that's this is for the relation between you and this client right I mean the moment you actually file a case it's it's over so I think mediation in these cases where the where there is a relationship right when there's a relationship I think it works it just works perfectly I totally agree with you and I think this is probably the only way you have a chance to continue um working together have a chance to uh not break the commercial the business relationship between you and the other party while actually running into a procedure or a process to uh resolve this conflict because with arbitration or litigation in general the relationship is is ruined it's finished but having said that many times during the arbitration or the litigation you actually can attempt mediation now with the new mediation law in the UAE you can the the court actually has the option to refer the parties to mediation or even you can ask the court to suggest mediation of course if the other party consent because it's voluntary process um so you can actually do that and it has proven I mean in terms of statistics that works um the settlement rate is even higher because at that point you have seen the exchanges with the other party you know their legal position they have started spending money on legal fees and they you know they have like been you know informed about the next Hearing in a few months or you know a appointing an expert and all these lengthy procedures and this is I think when they would realize the benefit of of mediation and assess their best case scenario or best alternative yeah as an expert in mediation you've been working for the last few years and uh advocating for it with the mediation Hub and so on what would be your advice on how to choose the right mediator for the right case or the right conflict how does this process go it's a very key um choice in the beginning of every mediation honestly because it will substantially impact the outcome of the mediation and not any party can um you know feel confident or can trust any mediator so yes it is a very important um step to overcome at the beginning and you know usually I mean if you go to to mediation it either your lawyer has recommended this for you or you as a business owner you heard about the concept you want to try it so really it's it's it's about checking bios it it is about checking bias but it's more than that it's it's a character and a personality and that is sometimes you cannot see behind behind the bio so sometimes it's hit or miss and sometimes you have to just go for for the experts um on on the mediation Hub website we have a we have a big directory of Medi professional mediators that we have vetted and we have you know ensured that they um you know they had the accreditation and the experience and all that and it's one of the plans actually and I'm happy you brought this up because it's one of our plans for next year is to as to create some sort of um a a Marketplace for mediators so you can actually go and and and choose a mediator uh from based on on their for example uh language skills uh expertise country um or or any other criteria that might be Rel for choosing a mediator okay we see that people have hard time uh choosing the right uh mediator and also this why the our platform is actually a place where mediators can promote their work for example can publish can uh you know do interviews uh videos any promotional work to just show a little bit their character and this can help a lot in in getting leads uh for for appointments again we are a nonprofit We don't we're not a service provider but our you know our directory can serve a lot of uh mediation users uh to go on our website and and choose um the right mediator what what happens at the end of the mediation so there is a settlement agreement or the charter or document that's agreement right yes and and how enforceable this is I mean it is enforceable as per the new uh UAE uh Federal mediation law of number 14 of 2023 at this settlement agreement if uh it is conclude if the mediation is concluded through a settlement by a voluntary or even judicial mediation is enforceable it has the same enforceability of a judgment so you don't have to go into the process of you know if there is a breach you don't have to go through the process of enforcing a contract a normal contract this is actually a RIT of execution I heard some opinion especially from technical um experts especially in the fields of engineering or or medical fields and so on that they are calling for a mandatory step to have the mediation uh process before it goes to court or before it goes to arbitration yeah what's your take on that so mediation is a voluntary process but adding it as a Mand mandatory step is good is not is not a bad idea because it forces the parties at least to try it but then they can leave at any time so they can opt out at any time nothing can force them to reach a settlement but the fact that they give it a try they just sit across the table from the other party can hear the other part party's position at least once and then they decide if they want to leave or not I think it's beneficial in many countries and markets how mediation developed now very Advanced market today for example in Europe and the United States and uh in Canada and other you know Advanced markets in mediation and some of them have adopted this mandatory uh this mandatory process just to force the parties at least to give it a try because Mo most people do not know what mediation is so just give it a try and just opt out if you don't um if you're not um uh convinced we did in the last year a lot of mediation advocacy trainings for our lawyers in the firm and for other lawyers as well uh through diak and Cedar the latest one that we did so in in these sessions I mean I I I helped lawyers uh you know to brainstorm ideas about how to make money out of mediation because this is what lawyers care about right and I mean and Justice yeah and that too but um you can perceive mediation as yes it might be taken some Revenue away from you as a litigator let's say uh but at the same time you know there are other benefits if if there is a mediation Clause I mean you have no choice right okay and if you feel that your client maybe cannot afford High legal fees I mean you better ad advise them to go to mediation instead of you know just losing the the client for all right yeah and in even in mediation as a lawyer you can there are ways of billing for your time if you bill on time spent you can bill your time on time spent there there is preparation ation work even before you go to mediation there is a strategy negotiation strategy that you actually have to design for for the case but then you have to attend sessions with your client right you can also keep building on time but you can build on success of mediation exactly so that's is another one I mean you can do you can uh do hybrid fees you can have like a flat rate but then uh you know get a contingency fee or success fee or even get a bonus if the matter is settled one or two weeks you know you can be as creative as possible um and and um you know uh generating uh revenue and also if you think about it long term I mean you know maybe you lost this client as uh you know for for for the litigation Department right but maybe you gain this client for many other Departments of the firm right if the client is happy he will come back and guess what maybe mediation wouldn't work but then you will go because you have the case you will go and you will you know file a case before the court and then continue so it's this is why I said it's not really this or that it could always be the first the first move um oh by the way and then the drafting the settlement agreement right yeah to quite legal good legal fees as well exactly and if there is a breach and you have to go as well to ensure compliance and then you advise them on next steps so yeah no no we we very creative on how we will exact exact is not a exactly and also you know I mean the role of the lawyers has been uh really one of the factors for developing mediation in many many markets um and and everyone recognizes that there's a conflict of interest right um so in Singapore for example to um to uh really remedy this they have asked an there is some mentry U mediation process in Singapore and they have if the client decides not to go to mediation they ask them to MIT a letter confirming that their lawyer explained to them the benefits of mediation and the process and they decided not to try it because they know because sometimes lawyers just skip this step um I think labor courts and in family courts this is a mandatory step corre and every jurisdiction almost but this thing with the letter in Singapore is quite a a practice it's quite F they don't trust lawyers no wonder why how big is a Medi departments right now even the most modern open-minded Law Firm that is uh accepting mediation percentage wise compared to litigation they're usually a smaller group okay but we see I mean I mean in the Middle East we albe was the first actually Law Firm to to launch a mediation practice um and and now we are training I mean we started um um me and my colleague uh David holay and um now many other um lawyers from The Firm are being being accredited as mediators and also we're doing a lot of training for mediation advocacy to most of our lawyers and the disputes team because we see that this going to really um you know pick up at some point and we wanted to be to be ready for it much a lot of clients now after we launched this practice and we're promoting it we've received a lot of requests for clients uh inquiring about the process and and um you know even including mediation um Clauses in their in their do you have to lobby with your colleagues in the contract refering or you have to lobby with the clients directly um I think both but um but yeah I mean we always we're always asked by by clients isn't it a waste of time it's isn't a step that is just going to waste our time before we go to the next step and and here the you know the role of the lawyer to actually explain to them that it's not because also many lawyers see that it is and this is a challenge yeah where did see the mediation Hub in few years like what's your bigger plan I really see it as um maybe the biggest um Marketplace for mediators I see it um you know running uh a wider um um you know initiatives um not only I mean we started in the UAE but our aim is to expand I mean it's a Mina initiative so I see it really expanding how hard is it to become an accredited mediator is it expensive um not not really okay not really it's a very short process let's say it's a minimum of 40 hours of training but I think what's more important than being accredited because this is something you could get you could get through but I think what's more important is to practice and this is why one of the plans that we want to focus on for for next year for the mediation Hub is to procure um a shadowing opportunities for our um members especially the rising mediators we have a category for Rising mediators and we've noticed that um with local talents there are very few opportunities to to practice and to Shadow and this is why I wanted to uh you know focus more on the demand side of mediation and on the demand side we we've seen like you know we have the law the law has been there for a couple of years now uh we have mediation rules uh from uh you know uh arbitration and dispute resolution institutions in the region uh we have a lot of trainings available and courses from really reputable uh um training institutions um we also see a lot of promotion and events everything and even government entities providing mediation services but still you see that mediation is not Valu it's not taken seriously no it's still underused underutilized undervalued and um and the reason is because there is no demand for it and where the demand come from it comes from lawyers of course and not all lawyers are you know maybe trained or have you know even knowledge about mediation so that's the first hurdle a second hurdle is even business community business Community do not know what mediation is and so we needed and you can see it everywhere in the world where mediation was develop is through Community work is through nonprofits is through change the culture is transforming the culture and I looked around I was like who is doing that and how are all these stakeholders in this ecosystem of mediation collaborating or even um you know having conversations with each other there's no conversation I mean everyone is doing you know doing one initiative on their own very little collaboration um so you know I met with two other mediation enthusiasts Dr Ahmed and judge Mahmud Murad and you know we came up with the idea and we decided to just start maybe the First Independent organization that actually has a mission to promote mediation as a concept and of course providing a platform for mediators to meet to collaborate and to work together and promote their work um so this how it started and and honestly it's been a great journey we've been so we did the soft launch a year ago we started little by little and then um you know during arbitration week we did this big launch and we have a lot of plans for the upcoming Years and we're very excited about all the people who supported all the people who believed in it from day one had a lot of people that we we barely started and people started reaching out and wanting to be part of of this um in less than a year we had more than 80 members and we're still we're still growing and we're developing more categories as well to have more people joining on other categories so today we have professionals who are experienced mediators we have Rising mediators who just got accredited and they want to see how you know they want to practice they want to Shadow they want to uh even be mented by experienced mediators and this is what the platform also provides for um and we have volunteers a lot of volunteers these are students or other like legal practitioners that just want to be part of this and now we're introducing mediation advocates for all lawyers because I we know that mediation advocacy is going to be a really a skill that almost all dispute resolution lawyers should have at some point so we created this category and there's uh also a very unique category it's called mediation uh ambassadors and this is for people who not necessarily are mediation practitioners but they are very enthusiastic about supporting our mission and helping us you know spread the war so shout out for all your efforts thank you so much for introducing this uh initiative in the UAE and I think uh hopefully it goes uh and expand uh in number and uh outside as well of the UAE to the the whole Mina region and uh we will put the website for the mediation Hub all the mediators please try to join the initiative and try to make the best out of it and everybody who doesn't know about mediation please listen to the whole uh episode and understand it learn about it try to save yourself time uh emotions money and loss of Business by trying the mediation and uh thank you very much Christine and thank you for educating us about the mediation and the mediation Hub uh itself it's a beautiful concept and I think everybody should uh learn about it understand it and try to use it as well thank you so much Ahmed thank you and I really invite you to join our mediation Ambassador category you did a great job just now thank you very much I'm all this is you do from Mand legal see you next week