(Mar. 6, 2020) On October 13, 2019, the King of Bahrain issued Royal Decree 22/2019, regarding mediation for dispute settlement. The Royal Decree, consisting of 20 articles, is the first legal instrument in Bahrain that provides the definition of “mediation” and regulates the requirements that mediators must meet and their responsibilities. Also, for the first time in the legislative history of the country, the law regulates the relationship between the disputing parties and provides that the mediator must be chosen from a list of certified mediators and that external mediators may be appointed for mediation by the parties. (Art. 1.)
Purpose of the Law
The new mediation rules aim to improve the effectiveness of mediation procedures and simplify and facilitate them for the benefit of the parties. They also serve to develop and update the mediation procedures to include the best global practices endorsed by prominent international arbitration and mediation centers in conjunction with the needs and expectations of local and foreign business owners in the Middle East.
Scope of the Law
The Decree states that its provisions are applicable to all domestic and international civil and commercial disputes. The Decree also addresses foreign settlement agreements resulting from a commercial or civil mediation that took place in Bahrain. It excludes all matters that cannot be reconciled by law. (Art. 2.)
Requirements for Certified Mediators
The decree empowers the Ministry of Justice to establish a “Mediators List” to register all certified mediators. It stipulates that for natural persons to be registered on the list, they must
- be adults
- be qualified and recognized for their integrity and impartiality,
- not have been convicted of a crime involving dishonor or dishonesty,
- not have been terminated or demoted from their office by a disciplinary decision, and
- not have been removed from the Mediators List or have had their original practice license annulled or suspended as the result of a disciplinary decision. (Art. 3.)
Responsibilities of Mediators
The Decree sets forth ethical standards for a mediator and provides that a mediator must
- disclose anything that may cause a conflict of interest with his/her mission as a mediator or affect his/her impartiality and independence;
- not review, while serving in the capacity of a judge, any case he/she had previously mediated;
- not be an arbitrator or an agent in a dispute that was the subject of mediation or a dispute related to it;
- complete the process of mediation within the period specified by the executive regulation, unless the parties agree on other terms;
- not serve as a mediator if he/she and one of the parties have kinship to the fourth level;
- not serve as a mediator if he/she was an agent to one of the parties in previous proceedings related to the mediation unless the parties request in a written document that he/she serve as a mediator; and
- return to both parties after the conclusion of the mediation process any documents of theirs that were used during the mediation proceedings. (Art. 4.)
Mediation Proceedings
The Decree considers all mediation proceedings confidential unless the parties have agreed otherwise. Further, the parties have the authority by agreement to choose a mediator and set the rules of the mediation. If the parties agree to embark on mediation during the hearing of their case, the court may refer the dispute for settlement by mediation. Likewise, if a mediator settles a dispute through mediation, a settlement agreement must be issued in writing, and this agreement is enforceable by law. (Arts. 5, 8, 9, 10, 12.)
The Decree prohibits the execution of a settlement agreement through mediation if doing so violates public policy or the laws of the kingdom. Also, the law prohibits the execution of the settlement through mediation if
- one of the parties is not fully competent;
- the settlement agreement through mediation is void, not executable, not final, or modified after the issuance of the verdict of the mediator;
- the obligations contained in the settlement agreement are ambiguous or incomprehensible;
- the execution of the mediation settlement violates a provision cited in the settlement; and
- the mediator breaches his/her fiduciary responsibilities. (Art. 14.)
If a dispute is settled by mediation while the case is in court, the party that would be required to pay the attorney’s fee is exempted. (Art. 15.)
Finally, after the approval of the Supreme Judicial Council, the minister must issue the executive regulations for this law, which are to contain details regarding the mechanism for the mediator’s withdrawal from the case; request for the mediator’s return by the parties and the periods specified for that; mediation procedures; terms of the mediation sessions and their duration; and end of the meditation procedures. (Art. 19.)
Prepared by Zahrah Majeed, Law Library intern, under the supervision of George Sadek, Foreign Law Specialist.
