March 29, 1996, Geneva, Switzerland
Discussion
Mediation as a Means for Amicable Settlement of Disputes in Arab Countries
and
The Approach to Mediation in the Arab World
Robert Badinter (Chairman)
Thank you, Mr. Kemicha, for those very interesting remarks and observations. Does anyone wish to ask questions at this stage on what has just been explained concerning the Arab World in relation to our common area of interest? For myself, I have one. You said that you hoped or that you envisaged a satisfactory development of the practice of mediation between national parties, which struck me. But, in the area of international relations, do you think that, in the light of the observations that you made, one can expect a development of international mediation inside the Arab World and between Arab States and non-Arab States?
Fathi Kemicha (Paris, France)
In reality, what I have just said is in the nature of an observation. The process which is taking place in the Arab World is inverse to that which we know in the United States of America or in Europe. In Europe, mediation came first. Historically, conciliation was a procedure present in European societies, and the progression went towards arbitration, towards an excessive formalism and everything that you have yourself described this morning, in order now to arrive at mediation. The process is inverse in the Arab World, or else it is at another moment of its development. Conciliation was known at the outset and, little by little, a certain number of reservations developed in relation to arbitration. This process has been modified by greater confidence, which is in the process of being consolidated. So arbitration is now being discovered and people are now fastening onto arbitration. It is paradoxical, but that is the phenomenon. Of course, I should like to make it clear that this understanding covers essentially commercial disputes. Internally, in contrast, one can see in most Arab countries, given the congestion in national courts and given all the aspects that Mr. Al-Hejailan has developed concerning confidentiality, speed and so forth, that the commercial world is likely to wish to regulate their conflicts by way of mediation and conciliation.
Salah Al-Hejailan (Riyadh, Saudi Arabia)
Usually parties, when they disagree, disagree over financial issues or disagree over issues that might lead to financial problems. When the financial damage has already taken place, usually, in the Western corporations, because they are restricted by rules and auditing requirements, they are not quite receptive to the practice of mediation. As it has been said, they introduce a lot of procedures into it that would really affect the spirit of mediation. But when they disagree over certain clauses that may to lead to financial damage, this is the right time for mediation - before the financial damage really happens. In every contract or every relationship there are some clauses that send signals that there will be disagreement over financial matters, and these are the best kind of clauses or situations that can be resolved through mediation. I have found it in my practice rather difficult to convince European or American corporations to accept mediation after financial damage has already taken place.
Ikbal Al Fallouji (Geneva, Switzerland)
I should like simply to complete the dossier, if it is possible. As regards conciliation, I believe that life, and I am sure that you will share this view, constitutes a global whole. I do not wish to detail the necessity of conciliation generally in the Arabic-Islamic world without necessarily having recourse to mediation. I wish to speak in telegraphic style, and I shall come to the essential. Conciliation is a necessity more than ever for life and for the lot of the Arabic-Islamic world, but conciliation, I would say, without intermediary, if possible. This morning we spoke of the Western approach. Please, draw near to the East, to adaptation. To be honest with myself, I can only say this afternoon that the Arabic-Islamic world is apt to adapt to modern Western life and that there is a true marriage of universal civilization. We cannot say only that others are responsible. We also must assume our own responsibility. There is an effort at adaptation that is undeniable. Adaptation does not signify elimination. We do not wish to copy, since we have our own originality and our own history. But, history should not be a source of sufferance for the conscience. It is necessary to build the bridge between history and contemporary reality. So I am obliged to ask myself a question. Does our contemporary legal and political reality achieve a bridge with our past? Or, must our past remain a source of sufferance for us? I am obliged, amongst ourselves, to speak openly with an open heart. I ask this big question because it is extremely important for the future of a true inter-penetration of civilizations and mentalities. I believe personally as a lawyer that neither our laws nor our practice are yet at the level of our heritage, particularly in the area of conciliation and mediation.
Finally, Mr. Chairman, our lawyers should be careful not to fall into a trap. Let us avoid a war of terms. Whether it is conciliation, mediation or good offices, we must know what we are speaking about and what is our objective. It is a human effort to try to find solutions that are correct, satisfying and human, whatever the name applied to them. There should not be a legal boundary, nor a legal prison. Law must build a bridge between civilizations.
Makkawi A. El Makkawi (Dubai, United Arab Emirates)
I find the papers presented by Mr. Al-Hejailan and Mr. Kemicha very interesting and I subscribe to many of the points which have been raised. But there is one thing which is academic that I think is very important to mention it here. There is no interchange, as far as I can see, in Arab countries between arbitration, conciliation, settlement and mediation. They are very distinct in the Arabic language, with very distinct meanings. Settlement is the result of any of these. It is a result, it is not a process. When we take the verses in the Koran using the word arbitration, we cannot take the word and substitute in its place the word conciliation. If we do that, the whole verse is changed. It does not have any meaning. I believe that what we are looking into this morning is mediation between two parties. We cannot say conciliation, we cannot use arbitration and we cannot use settlement. This may sound academic, but I believe that this is, as far as the Arabic language is concerned, the heritage of Islam. They are absolutely distinct.
Salah Al-Hejailan (Riyadh, Saudi Arabia)
I agree with you from the linguistic point of view and your analysis is 100% correct. I have just tried to classify the usage or the reference of terminology. So, when I talk about a commercial dispute, I would rather use the word conciliation. When I talk about family disputes, I like to use the word mediation. It is, in my opinion, a classification that is not inconsistent with the spirit of any of those.