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Legal Briefs: Mediation

MEDIATION DEFINITION

Mediation is an alternative dispute resolution-ADR mechanism of great importance. According to Cairo Regional Centre for International Commercial Arbitration it refers to the method in which an impartial party assists the parties in reaching a negotiated settlement of their dispute. Though, parties have control over the decision to settle and the terms of any agreement. However, once accepted, the resolution becomes binding to its parties.

 

MEDIATION MODELS AND SIMILAR ADR MECHANISMS

There are different models of mediation: voluntary and mandatory mediation. On one hand, Voluntary mediation refers to the situation when the parties decide to involve a neutral third party to assist them to resolve their dispute. On the other hand, mandatory mediation refers to the situation where the disputing parties are obliged to attend mediation proceedings, before competent courts such as mediation in Family Courts (Articles 5 to 8 of the Egyptian Family Law No. 10 of 2004) and in the Egyptian Economic Courts (Article 8 of the Law Establishing Economic Courts No. 120 of 2008). 

Additionally, important differences exist between mediation and conciliation. While some legal systems use both terms, to refer to the same method, other jurisdictions provide different regulations for each. In some jurisdictions, the major difference between them lies in the role of mediators and conciliators: while Mediator is an impartial third party who assists the parties to reach a common outcome, the conciliator is an expert appointed to resolve a dispute by convincing the parties to agree upon an agreement.

Finally, it is also important to differentiate mediation from settlement conferences. Settlement conferences or pre-trial conferences refer to the amicable settlement of disputes in courtrooms with the intervention of judges not only an impartial third party.

 

LAWS AND RULES GOVERNING MEDIATION IN EGYPT: THE STATUS QUO

 

The only Alternative Dispute Resolution mechanism officially acknowledged by Egyptian law is Arbitration (the Law No. 27 of 1994 on Arbitration in Civil and Commercial Matters). It is worth mentioning that the Egyptian legislator does not distinguish between mediation, conciliation, and settlement conferences. Thus, it is important to elaborate on the relevant rules applied by the Courts regarding mediation, to explain that mediation, conciliation, and settlement conferences are confused and used to refer to the same procedure in Egypt most of the time.

First, Article 64 of the Civil and Commercial Procedures Law stipulates that “the presence of the litigants shall be before a settlement conference that applies the rules of conciliation between them. Except for the cases where conciliation is not acceptable, if the parties reach a settlement agreement, this agreement shall be enforceable. However, if the parties do not settle, the trial shall be referred to the competent court.”                                                                                 

Thereon, Law No. 7 of 2000 establishing conciliation committees to settle the disputes in which Ministries and public legal entities are a party, with some exceptions, before being referred to the competent administrative court.                                                           

AdditionallyArticle 8 of the Law Establishing Economic Courts No. 120 of 2008 provides the establishment of a committee within each court that should be competent to offer conciliation to litigants before referring the case to the Economic Court. In case a settlement is reached, the committee shall refer this to the competent court to decide upon it in the light of the civil procedures law, otherwise, the court will be examining the case.         

Moreover, Article 66 of the Sports Law provides that an independent center shall be established in the Egyptian Olympic Committee called the Egyptian Sports Settlement and Arbitration Center to settle any dispute arising regarding sports. It includes Mediation, Conciliation, and Arbitration in case an arbitration clause is included in any contract or regulation binding the parties of the dispute.

 

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