ADR in the Arab Gulf

The Future is so Bright, We Will have to Wear Shades

One panel speaker, Assistant Professor Andrew Dahdal, had this to say about last week's ADR conference sponsored by Qatar University College of Law:   

The conference was insightful in many respects. Given that some of my recent research has been looking at the relationship between financial centres and broader national jurisdictions, the discussion concerning the enforcement or arbitral awards in the Dubai International Financial Centre (DIFC) was especially interesting.

The conference -- entitled, The Future of Alternative Dispute Resolution -- A Qatari Perspective -- brought together lawyers, scholars, and ADR neutrals to discuss ADR in the Arab Gulf and MENA regions.  Most of the presentations focused on arbitration, which remains the dominant (and nearly exclusive) form of ADR in the region.

The agenda included opening and keynote speeches by:

• Dr. Mohammed Abdulaziz Al-Khulaifi, Dean of Qatar University College of Law.
• Lord Nicholas Phillips, President of Qatar International Court and Dispute Resolution Center (QICDRC).
• Sultan Al-Abdulla, Managing Partner of Sultan Al-Abdulla & Partners, a sponsor of the event.
• Prof. Bridgette Stern, Emeritus Professor of International Law at the University of Paris,I, Pantheon-Sorbonne.
• Dr. Talal Al-Emadi, Chair of the Advisory Board of the QU College of Law Center of Law and Development (CLD).
• Prof. Mohamed S. Abdel Wahab, Chair of Private International Law and Professor of Dispute Resolution at Cairo University.

The conference also consisted of four panel presentations.  Topics included:

• Alternative Means for Resolving Economic Disputes.
• Arbitrating Natural Resources Disputes: Current and Future Trends.
• Arbitration in Intellectual Property Disputes.
• Conciliation versus Court Ruling -- Management of Chances and Risks.
• The Role of Civil and Commercial Court of Qatar Financial Center (QFC) Consumer Dispute Resolution Scheme.
• Alternative Dispute Resolution in Contemporary Times.
• Future Challenges and Paradigmatic Changes in International Arbitration: A View from Behind the Curtain.
• Effect of Minority Not Signing Arbitration Award on the Validity of Arbitral Award.
• New [Qatar] Arbitration Law no. 2 of 2017: Pros and Cons.
• Arbitration and Criminal Law: The View from Qatar and UAE.
• Alternative Methods for Resolving Administrative Contract Disputes in Qatar.
• The Rise and Fall of International Administrative Arbitration: A Revision on the Commerciality of International Arbitration under Egyptian Law.
• Enforcement of Arbitral Awards.

Several of my QU College of Law colleagues covered these topics, along with representatives of QICDRC and regional lawyers.

I hope that my colleagues create more opportunities to discuss ADR in the region.  As my own research is beginning to reveal, ADR is still in the early stages of institutional development in the Arab Gulf region.  I also hope that the papers presented at the conference get published in a symposium issue of a law journal. 

I have encouraged the conference organizers to create a webpage where people can access conference slides.  I'd hate to see this material go unrecognized in the future. 

Week 8: My Research Methodology

How I Conducted the Research

Acknowledgments:

First, I want to thank Qatar University College of Law and my Dean Dr. Mohammed A. Al-Khulaifi for their generous support of this research. I also appreciate the help of Dr. Yasser Khalaileh, Associate Dean for Academic Affairs, Dr. Faouzi Ahmed Belknani, Associate Dean of Research, Dr. Yassin El Shazly, Associate Dean of Outreach and Engagement, and Dr. Conrad Sturm. Finally, I want to thank the many faculty and ADR colleagues who gave me the opportunity to interview them. They generously gave of their time.

The Interviews:

The report reflects about 20 hours of interviews, including the interviews of several QU professors, ADR professionals, law firm attorneys, government attorneys, and a judge sitting on the Qatar International Court and Dispute Resolution Center (QICDRC). At this point in the process, I have interviewed people who live and work in Qatar, but I have also interviewed two people living in Dubai.

I conducted interviews over a three-month period during January to March 2017.

 
All of the interviews took at least an hour. About half the interviews lasted longer than that allotted time.

The Interview Questions:

I adopted interview questions based on an Appreciative Inquiry approach, as I explained in the instructions to interviewees.

In creating the questions, I relied on two resources:

• Jane Magruder Watkins, et al., Appreciative Inquiry: Change at the Speed of Imagination (2d ed. 2011), and

• Bernard J. Mohr & Jane Magruder Watkins, The Essentials of Appreciative Inquiry: A Roadmap for Creating Positive Futures (2002).

In this initial round of interviews, I was Beta-testing the questions. While I intend to make a few changes to them, overall, they worked to elicit the information I wanted to collect.

The Initial Report:

During each interview, I took at least seven pages of notes. I then collected those responses in a report.

Accordingly, the report reflects two stages of filtration: First, during the notetaking phase of the interview, and then during my transfer of those notes to the framework of the summary.

I apologize in advance if I failed to capture thoughts or comments of the interviewees accurately.

I then identified themes coming out of the interviews and captured some of my favorite comments or quotes. I will talk about those themes in my next post.

Plans:

I intend to do another 40 hours of interviews. I will expand the geographic scope of the interviews to the UAE, Bahrain, Kuwait, Oman, and Saudi Arabia (i.e. other GCC countries).

As I do more interviews, I will continue to update and revise the report.

I plan to convert the report to a law review article that I will submit for publication during the Fall 2017 publication cycle in the U.S.

I also will present the results of this research at The "2d International Conference on Non-Adversarial Justice" held by the Australian Institute of Judicial Administration beginning April 6-9, 2017 in Sydney, Australia.

I also plan to do more quantitative research by using on-line surveys that will determine the background, training, and experience of neutrals in the Arab Gulf region. I will also ask about the number of disputes the neutrals have handled and which ADR processes they used. The surveys will also explore how often stakeholders are using ADR to resolve disputes and which processes they prefer.

I deeply enjoyed the opportunity to talk with people in the Arab Gulf ADR community. I want to thank them again for their time and energy. I learned so much from all of them and their comments have identified other lines of research for me.

I hope the report provides insight and guidance for the community as it plans its future.

I look forward to serving that community as it continues to expand.

Week 8: I'm Off to Australia for an ADR Conference!

Scaling Up. 
Working at an International Level

When I decided to move to Qatar, I had hoped to scale up my ADR teaching, training, and practice.  In the U.S., I held the state-wide leadership positions in the Virginia Mediation Network and positions on Virginia Supreme Court-sponsored mediation ethics committees and grievance boards.  I loved those opportunities to serve my community.  

However, because of the financial constraints of my law school, I could not actively participate at a national level in leadership of the Section of Dispute Resolution of the ABA or of the Association for Conflict Resolution. Towards the end of my stay in the U.S., my law school was not even funding my attendance at the annual conferences of these organizations. 

By moving to Qatar and joining the faculty of a well-funded university, I hoped to grow professionally and scale up to a more international ADR practice.  

I was lucky, in hindsight, to leap-frog national level participation when too many barriers existed to my greater involvement.  

So, I am excited to participate in my first international ADR conference on a continent I've always wanted to visit.  The conference is entitled: the "2d International Conference on Non-Adversarial Justice," sponsored by the Australian Institute of Judicial Administration.

I will be speaking on the this topic: "Barriers to ADR in the Arabian Gulf: A Conversation About Training, Capacity, and Culture."  I will be joined by 75 speakers over the three-day event. 

In my next few blogs, I will share some of the research that I will presenting at the conference. 

Back in the Middle with You: 

Re-Joining my U.S. ADR Tribe

In early April 2016, after a gap of several years, I finally joined an old tribe of ADR scholars, trainers, and practitioners at the annual conference, this year in New York, sponsored by the American Bar Association’s Section of Dispute Resolution. This ABA tribe claims my heart. These are great folks doing interesting and world-altering work. I love being among them.

In my last post, I talked about several new tribes that reflect my transition to a new life in Doha, Qatar as a law professor. My new Arabian Gulf ADR tribes are important to my desire to scale-up my ADR practice and training.

Yet, the anchor for my work has always been my old ABA tribe. I have tried to serve it in several ways:

• Member, Standing Committee on Ethical Guidance for Mediators (2006-2011).
• Co-Chair, Mediator Ethical Opinions Database Sub-Committee of the Standing Committee on Ethical Guidance for Mediators (2006-2008). 
• Chair of Bar Exam Committee of the Am. Bar Ass’n Taskforce on Legal Education, ADR, and Problem-Solving (2010-2011).
• National Co-Chair, Am. Bar Ass’n Section of Dispute Resolution Representation in Mediation Competition (2003-2004).

But, when my little law school in Appalachia responded to declining student enrollments by cutting back, and then eliminating, money for conference travel by professors, my ability to play a role at the national ADR level diminished quickly. It made me very sad.

This spring, I was invited to join a conference panel discussing the topic of Teaching Conflict in the Midst of Conflict. Doha remains a very safe place, but countries dealing with civil war, terrorism, and other civil unrest encircle Qatar. 

I provided some information about my experience teaching in Qatar (so far, an excellent experience). I talked about teaching gender-segregated classes and the aspirations of my male and female students. Finally, I shared the information about the state of ADR in the region, which my new Arabian Gulf ADR tribe helped me assemble and understand better. See my last post for more on that topic. 

One question -- from Nancy A. Welsh, a distinguished ADR scholar and law professor at Penn State Dickenson Law School -- really sparked my thinking. I had emphasized the cultural expectation for “justice” in the Arab world. But, I could not tell her the true source of that expectation, what it meant in this cultural context, and how it would affect expectations about procedural justice in arbitration or mediation. Sounds like a future law review article.

On the last morning of each ABA conference, a mini-tribe assembles. It consists of law professors teaching ADR in what is called the Legal Educators Colloquium. Our closing question concerned the future of ADR.  Several folks talked about the role technology would play. 

As it happened, I had the final word. I said that in a world described by Daniel Pink and Richard Susskind, value would still involve high-touch and high-empathy services. We, as ADR professors, were perfectly positioned to teach law students what that means and how lawyers and ADR professionals offer those types of services to clients. I described it as heart-centered practice. Many heads nodded.

Alternative Dispute Resolution in the Arab Gulf Region

Building the ADR Tribe

Seth Godin's book, Tribes: We Need You to Lead Us (2014), has played a big role in my thinking and behavior since I read it shortly after its publication. 

Amazon describes the theme of the book as: 

A tribe is any group of people, large or small, who are connected to one another, a leader, and an idea. For millions of years, humans have joined tribes . . . . It’s our nature. Now the Internet has eliminated the barriers of geography, cost, and time. All those blogs and social networking sites are helping existing tribes get bigger and enabling new tribes to be born―groups of ten or ten million who care about a political campaign, or a new way to fight global warming.

Who is going to lead all these tribes? . . . . Anyone who wants to make a difference now has the tools at their fingertips.

Tribes will make you think (really think) about the opportunities for leading your fellow employees, customers, investors, believers, hobbyists, readers…. It's not easy, but it's easier than you probably imagine.

For more, see his TedTalk here.

My New Tribe

On February 27, 2016, several members of the informal group known as the Arab & International Arbitrators visited from Dubai to meet with their counterparts in Doha.  In November, I had traveled to Dubai to attend one of the groups meetings and to begin building ADR relationships in the Gulf countries.  I met three marvelous people -- Dr. Hussam Al Talhuni, John P. McGowan, Jr., and Diana Bayzakova -- who are leading the Dubai tribe. 

Once I learned they were planning a trip to Doha, I began activating my still modest list of ADR neutrals in Doha.  I reached out to the Clerk of the Qatar International Court & Dispute Resolution Center, Christopher Grout.  I reached out to my Qatar University College of Law colleagues, and I reached at to arbitrators I had met when they began discussing a Doha chapter of the Chartered Institute of Arbitrators. 

As part of this process, I had several calls with my Dubai counterpart, which eventually led to an invitation to facilitate a conversation about "capacity" in the region.  This invitation fed directly into my own curiosity about the state of ADR in the Arab Gulf.

I fashioned the following questions to prompt the conversation.  I am thankful to my colleagues on the ABA DR Section listserve who suggested some additional angles to my inquiry.

Discussion Questions 

• Does the region have a sufficient number of neutrals to handle the disputes arising here? Enough arbitrators, early neutral evaluators, mediators, group facilitators, etc.?
• To enhance this capacity, what kind of training should neutrals in the region have available to them?
• Substantive.
• Procedural.
• Ethical.
• Cultural.
• How do we build demand for alternative dispute resolution (ADR) services among businesses, government entities, civil society, and courts? What kinds of trainings and other interactions should we offer these potential users of ADR services?
• How do we help lawyers understand ADR and its uses in disputes that they handle on behalf of clients? How do we help them advise clients about arbitration, mediation, and other ADR-processes?

For about 30 minutes, we used the questions to prompt a very lively conversation.  

Discussion Take-Away Points

In General:

• Courts in the Gulf region have no infrastructure for referring cases to ADR, whether statutory or by court rule.

Arbitration:

• Arbitration is the leading form of ADR by virtue of contract clauses typically imposed by expat companies whose expertise is much desired in a country that is scaling up at a very fast pace in anticipation of the World Cup. They have the contractual/bargaining leverage to require the clauses. 
• Government entities that have had experience with arbitration have not prevailed in most cases (4 out of 5 was the number given) and are now shy of participating in arbitration in the future when they feel the home courts will treat the government better.
• Government entities wonder if arbitration can provide “justice.” 
• While many people hold themselves out as arbitrators, good arbitrators are hard to find. “Good” includes substantive competence, especially in construction-related matters. 
• Parties tend to pick lawyers as arbitrators, because even if they have not had formal arbitration training, they have some respect for legal process and procedural justice. 

Mediation:

• Virtually no mediation is occurring in the region in litigated disputes.
• Mediation has taken some root in Dubai in the form of a mandatory pre-trial ADR.
• If mediation is to take root in Doha at all, it would likely be through a court or government imposed system. (Does such a thing exist already in specialized courts in Doha like the Landlord-Tenant court?)
• Law firms trying to find competent mediators must go all the way to London. No real capacity exists in the region. Again, they are looking for mediators with substantive expertise, especially in construction-related disputes.
• By having to go to Europe to find good mediators, the cost of mediation is high. 

Negotiation:

• Very few people, including local lawyers, have training in interest-based negotiation. Accordingly, they have difficulty conceiving of a process, like mediation, that can bridge the hardened positions of parties. 

In short, the region is fertile ground for building capacity to solve problems using tools that are still not widely accepted in the region.  

And, I feel lucky that I can serve this community in ways that will evolve as I learn more.  

Student Organizations: The ADR Society

The ADR Society of the 

Appalachian School of Law

The Appalachian School of Law is the only law school in the U.S. founded with a focus on Alternative Dispute Resolution (ADR).  Beginning in 2006, the school placed increasing emphasis on its ADR curriculum, as I described here.
 

The ADR Society is a student organization dedicated to the advancement and awareness of ADR practices, to the exploration of career opportunities in ADR, and to equipping students with the knowledge and skills necessary to represent their future clients effectively in negotiation, mediation, and arbitration forums.  

Students created this organization in 2012. Thus, it joins the other offerings falling generally under our Lawyer as Problem certificate program.

Its Constitutional Preamble provides:

The ADR Society exists to provide Appalachian School of Law students with opportunities to learn about Alternative Dispute Resolution practice, utility, and technique. It does this by sending members to tournaments and conferences, promoting the role of ADR at the Appalachian School of Law, and encourages new and innovative practice through out the community.

Goal Statement

The ADR Society has five goals:

• Promotion of ADR as a necessary skill for today’s successful attorney,
• Development of student’s advocacy skills,
• Lobbying the law school’s administration for a more comprehension ADR program,
• Participation in and creation of community/ASL ADR programs, and
• Competing in regional and/or national ADR competitions.

Any student, professor, or other person associated with Appalachian School of Law may become a member.  The Constitution contains an express non-discrimination clause.

Sponsored Activities

Last year, the ADR Society sponsored the participation of a two-member team in the Robert R. Merhige, Jr. National Environmental Negotiation Competition, which is held at the University of Richmond Law School in honor of the late United States District Court Judge. For more information about the compeition, see here. 

This year, the ADR Society is exploring the opportunity to host an on campus visit by nationally-known master mediator, Robert Creo.  Among many other services provided, Bob has served on the panel of mediators for the Court of Arbitration for Sports which administers cases for the Olympics and other international sporting events since 1998. For many years, he was a salary arbitrator for Major League Baseball and a grievance arbitrator for the National Football League. He served as an independent hearing officer for the United States Senate Select Committee on Ethics for 5 years.

The ADR Society will also plan activities around Conflict Resolution Day and Virginia's Mediation Month.

Assistant Professor Kendall Isaac serves as faculty advisor.

The founding Executive Board included the following students:

Diana Netterville – President
Chris Schumacher – Vice President
Jason Berke – Secretary
Alicia LeClair – Competition Chair
Tessa Lunceford – Treasurer
ADR Day Chair – Susan Wood.

Law Journals: The Appalachian Journal of Law

The Appalachian Journal of Law

of the

Appalachian School of Law

The Appalachian School of Law offers two scholarly writing journals edited by students.  I profile the second journal -- the Appalachian Natural Resources Law Journal -- here. 

In 2000, the students and faculty began operating the Appalachian Journal of Law.  It has published articles from prominent academicians, judges, lawyers, and business leaders.  It also publishes student notes and comments. 

The Law Journal published its first issue in September 2002 and published one issue each year from that time until 2005.  It then began publishing a second issue focusing on ADR.

  

The ADR issue has gotten notice in the ADR field because the Editorial Board has solicited articles by contacting the leading dispute resolution LL.M. programs and by communicating through list serves that reach over 10,000 ADR practitioners and scholars. 

To ensure that all students have an opportunity to join, the Law Journal has held a write-on competition since the summer of 2003. 

Executive Editorial Board, Senior Editors, & Associate Editors 

The Executive Editorial Board (Editorial Board) manages the Law Journal.  The prior year’s Editorial Board elects current Editorial Board members.  Third-year students who do not serve on the Editorial Board serve as Senior Editors.  The Senior Editors directly supervise the editing and critiquing work of Associate Editors on the Law Journal’s lead articles.  

To be eligible to serve on the Law Journal during a student’s third year, a student now must serve one year on the Law Journal as an Associate Editor in an acceptable manner and write a note that the Editorial Board and faculty adviser deem of publishable quality. The note requirement ensures that Associate Editors receive a rigorous writing experience during their second-year in law school.  It also ensures that all third year members of the Law Journal, whether Editorial Board members or not, have sufficient experience to direct and supervise the work that Associate Editors do on the Law Journal’s lead articles.

Satisfaction of Seminar Requirement

Students who serve two years on the Law Journal in an acceptable fashion and who write a publishable note may substitute that service for the two-credit Seminar Requirement in their third year. 

In the past decade, the Law Journal has come a very long way – moving from a concept to a traditional primary law journal and increasing the number of issues that it publishes from one to two a year.

Associate Professor Doug McKechnie serves as the faculty advisor.

Back to School: ASL's Unique Dispute Resolution Curricular Program

The Appalachian School of Law is the first, and so far, the only law school founded with a focus on Alternative Dispute Resolution (ADR).  ASL’s dispute resolution curriculum is unique in several ways.  Students get advanced training in negotiation  mediation, arbitration, early neutral evaluation, group facilitation, consensus building, and dispute resolution system design. 

2L Dispute Resolution Survey Course

First, only nineteen law schools, including ASL, require all their students to take an ADR survey class.  The curriculum reflects the realities of lawyering in an era of the so-called “Vanishing Trial."   The course provides students with basic interest-based negotiation skills.  It also introduces them to the role of advocate in several ADR processes, especially mediation.  

Research shows that ASLstudents who take only the required survey course have more training in ADR than most practicing attorneys.  This training creates more employment opportunities for students and allows graduates to more skillfully represent clients.

Lawyer as Problem Solver Certificate Program

But many students take more than the one required ADR course. They pursue the Lawyer as Problem-Solver (LAPS) Certificate. The Appalachian School of Law is one of only forty law schools with an ADR-related certificate program or curricular concentration.  

ASL’s LAPS certificate program focuses on the role of the modern attorney in facilitating strategic problem-solving for clients both inside and outside of the courtroom.  The program seeks to provide students with the skills they need effectively to serve their clients, including skills in oral and written communication, interviewing and counseling, negotiation, mediation, arbitration, transactional drafting, estate planning, and pre-trial, trial, and appellate practice.  

In the last several years, approximately 20 percent of students in the graduating class earned the LAPS certificate.  Students who earn the certificate have over 110 hours of ADR-related training in the skills, theory, and ethics of ADR.

Advanced Upper Level ADR Courses

Appalachian School of Law offers a number of advanced upper level courses relating to ADR.  They include:

• Workers’ Comp and Safety Laws and ADR
• Certified Civil Mediation
• Client Interviewing, Counseling, and Negotiation;
• Insurance and ADR Practice
• Environmental Dispute Resolution

Only eighteen of 200 ABA-accredited law schools offer a course in Environmental Dispute Resolution.

Other courses in the catalog that cover ADR topics include:

• Arbitration and Dispute Resolution System Design
• ADR In Criminal Cases
• Advanced Negotiation

     
   Co-Curricular ADR Activities

      Students can develop their knowledge and skills in ADR through several co-curricular activities.  The Appalachian Journal of Law dedicates its spring issue to ADR topics.  Students can write an ADR-focused note for publication and edit articles submitted by nationally known ADR scholars.  

      The ASL ADR Society offers students an opportunity to participate in ADR-related competitions at the intra-school, regional, and national level, where they have competed successfully against top-ranked schools.  
      For more information about the ADR program, contact me, Professor Paula Marie Young.  Additional information appears here.