An overview of Oman's new Mediation Rules
The Oman Commercial Arbitration Centre (OCAC) was established in July 2018 by Royal Decree 26/2018.
The OCAC is affiliated with the Oman Chamber of Commerce and Industry, but has its own legal identity and so financial and administrative autonomy.
The OCAC was created to provide arbitration, mediation and other forms of ADR services within Oman and also to administer local, regional and international disputes. In a further development of this role, on 7 July 2021 the OCAC issued its mediation rules in its Decision No. 8/2021 (the Mediation Rules).
Article 2 of the Mediation Rules sets out that, where parties agree in writing to refer disputes arising between them to mediation in accordance with the Mediation Rules, such disputes shall then be settled in accordance with the Rules. There is scope for parties to include flexibility with regards to the application of the Mediation Rules as Article 2 provides that any amendments agreed upon by the parties in writing will be given due regard.
Representation: the parties in dispute may represent themselves or appoint a representative to attend on their behalf and assist them with the mediation proceedings. The representative must be authorised by a power of attorney, and the OCAC registrar holds the right to request a proof of authorization of the representative and their credentials.
Request to Mediate: before a mediation is initiated, the party seeking to commence the process shall submit a request to the OCAC's registrar. The request should contain information such as the parties' contact details, a description of the dispute and the appointed mediator(s), if any. On the day of receipt of such request the registrar will notify all involved parties that a request to mediate has been made.
Location: the OCAC's executive committee headed by the OCAC's CEO, and two consultants (the Executive Committee) have the authority to decide the mechanism for any meetings between the parties, whether virtual or in person, and the location of any in person meetings, in the absence of any such agreement between the mediating parties. The Executive Committee can delegate this power to the mediator(s), once appointed.
Language: the mediation process is to be conducted in the language agreed by the parties. In the absence of such agreement, the Executive Committee shall determine the language in which proceedings are to be carried out, until the mediator(s)' appointment who can then have the authority to determine the applicable language.
Appointment: the parties are free to contractually agree on the appointment mechanism of the mediator(s), independent to the Mediation Rules. In the absence of such agreement, the Mediation Rules provide that a list of suitable candidates will be sent to the parties who will then be required to rank the candidates in their order of preference, or to completely exclude those to whose appointment they object, within seven days of being provided with the list of candidates. If the parties agree on a mediator, that person will be appointed, if they fail to agree then the Executive Committee will appoint a mediator, taking into account the previously submitted preferences.
Neutrality and Independence: the mediator is required to be neutral and independent. Any candidate is required to disclose any conflicts of interest which would raise justifiable doubts with regards to their ability to mediate impartially. A mediator is required to confirm their appointment by way of a letter of acceptance, which should be accompanied by a written acknowledgment affirming their neutrality and independence.
Duties: whilst the mediator is not empowered to bind the parties to any particular outcome, their role entails encouraging the parties to come to a settlement. Should the mediator find that mediation is unlikely to lead to a resolution, they may propose alternative procedures, such as the appointment of an expert, or an alternative form of dispute resolution, such as arbitration.
Pre-commencement: once appointed, the mediator will discuss details with the parties of the procedure which they would like the mediation to be conducted, such as timings, and exchange of documents. These particulars will be documented by the mediator and circulated to the parties.
Principles: The Mediation Rules require that the parties be treated with fairness, justice and impartiality by the mediator in order to provide them equal opportunity to present their case. The parties are expected to act in good faith during the process.
Meetings: in order to develop a clear understanding of the facts of the dispute, the mediator is able to meet and communicate separately with any of the parties.
Disclosure: the mediator is not permitted to share information disclosed by one of the parties in private to any of the other parties to the mediation, without approval to do so from the disclosing party.
Duration: the parties should agree on a period of time by which the mediation should conclude. In the absence of such agreement, the Mediation Rules impose a requirement on the mediator to complete the mediation within three months.
Concluding Proceedings: if the mediation process is successful, it will conclude with the parties entering into a settlement agreement. Otherwise, any of the parties may provide written notice to the mediator that they do not wish to proceed with the mediation process, or a written notice from the mediator on why he believes a settlement is not possible through mediation. In the event that the process does not conclude within the relevant period of time, the OCAC registrar will notify all parties that their period of mediation has expired. Moreover, if either party does not fulfil the settlement after seven days from its entitlement the OCAC registrar shall send a written notification of non-fulfilment of settlement.
The Mediation Rules are a welcome addition to the forums for dispute resolution within the Sultanate of Oman. Mediation is often seen as one of the most efficient means to resolve a dispute, and whilst there was nothing preventing parties using mediation before, having a clear set of rules is will undoubtedly encourage greater use of this mechanism.
Also, in the absence of prescribed rules, Oman-based parties would often seek a foreign forum to mediate their disputes. The release of these new Mediation Rules will hopefully lead to a shift in the selection of local forums for Omani disputes, and even perhaps draw international interest in using OCAC.