Introduction
Mediation has emerged as a crucial instrument in refining the criminal justice system across various jurisdictions. Recognizing its potential, many advanced legal systems have established robust legislative and regulatory frameworks to facilitate mediation in criminal matters.
In alignment with such global best practices, the United Arab Emirates (“UAE”) has made a significant legislative stride through the enactment of Federal Law No. 38 of 2022 on the Issuance of the Criminal Procedure Law (“CP Law”). This law, among its various reformative measures, provides for an enabling framework for conducting mediation in criminal cases, particularly under Articles 348 to 359. Article 349 of the CP Law specifically enumerates the types of criminal offences, misdemeanours, and infractions for which mediation can serve as an alternative dispute resolution mechanism.
Recognizing the critical importance of regulating the professionals who may act as mediators under this framework, Article 359 of the CP Law mandates that the Minister of Justice or the Head of a Local Judicial Body shall issue a resolution governing the performance, qualifications, and accountability of mediators, along with a prescribed fee schedule.
In fulfilment of this mandate, on 25 July 2024, the Minister of Justice issued Ministerial Decision No. 341 of 2024 on the Regulation of the Functions of a Mediator in Criminal Mediation (“Resolution”). This Resolution came into effect on 26 July 2024, the day following its publication. The key features of the Resolution are outlined below:
Regulatory Bodies
The Directory of Advocates and Legal Consultants at the Ministry of Justice has been nominated as the concerned body to regulate the affairs of criminal mediators. A regulatory unit within the Ministry of Justice (“Competent Department”) is tasked to prepare the Roll of criminal mediators who are licensed to conduct criminal mediation in the UAE (“Roll”). As per the Resolution, a criminal mediator is an individual who is registered in the Roll.
Additionally, the Competent Department may also entertain complaints against the criminal mediators on the Roll and take disciplinary actions which may be warning and/or suspension of the registration from the Roll. A grievance against any decision by the Competent Department lies before the Assistant Undersecretary of the Ministry of Justice for the judicial services’ sector.
How to register on the Roll of criminal mediators
To become a criminal mediator, an eligible person (see, (c) below) must make an application for registration in the Roll before the Competent Department and must meet all the requirements and formalities with respect to such an application. If granted, such registration is valid for two years which can be renewed subject to meeting of certain specified requirements.
Who may become a licensed criminal mediator?
To apply for inclusion in the Roll, an applicant must meet, including but not limited to, the following requirements : (a) hold a graduate degree in Law or in Shariah and Law or any equivalent certificate from one of the universities or colleges recognised in the UAE; (b) be at least 30 years old; (b) be of a good conduct and reputation with clean criminal records; (c) pass any prescribed training programs; (d) pass medical examination; and (e) have appropriate insurance policy in place against any professional errors by a competent insurance provider.
In parallel, it is also possible to register in the Roll experienced Mediators who are designated by a decision of the Minister of Justice and selected from: (a) retired members of the judicial authority; (b) lawyers registered in the roll of practising advocates; (c) non-practising lawyers who practised the profession for a period of not less than five years before becoming non-practising lawyers; or (d) persons who are highly qualified and have experience in the field of law, and known for their expertise, integrity and neutrality.
Professional Training
A Judicial Training Institute reporting to the Ministry of Justice has been set up to conduct training sessions and programs for the persons registered in the Roll. This will serve the purpose of continuous professional training and development of criminal mediators to ensure that criminal mediation serves as an efficient and efficacious alternative to the court proceedings.
Mandatory Insurance
Persons registered on the Roll as criminal mediators are mandatorily required to have adequate insurance policy in place providing an annual coverage of not less than AED 200,000 and not more than AED 1,000,000 for professional errors such as: (a) loss or damage of the original documents; (b) dishonesty and fraud; (c) breach of confidentiality; and (d) any other compensation adjudicated to be due on account of acting as a criminal mediator.
Remuneration of criminal mediator
The remuneration of criminal mediators shall be determined pursuant to specific clauses in a Criminal Mediation Agreement (“CMA”) which is to be drafted by the mediator and signed by the victim, defendant and the criminal mediator. A CMA that does not include the fee or remuneration of a criminal mediator is invalid. A CMA shall be presented to the Public Prosecution for approval.
The remuneration shall take in account several factors, including but not limited to, the type and nature of work, time to be consumed and the experience and qualification of the criminal mediator.
An indicative table has been provided in the Resolution which stipulates the remuneration which may be payable to a criminal mediator. However, it may be noted that a victim and a defendant may agree on remuneration which exceeds (but may not be lesser than) the prescribed limits. The prescribed limits are: (a) Not less than AED 1000 and no more than AED 3000 in the case of offences mentioned in Article 349(1) of the CP Law; or (b) Not less than AED 2000 and no more than AED 5000 in the case of offences falling under the purview of Article 349(2) of the CP Law.
Unless agreed otherwise between the defendant and the victim in the CMA, the victim or his representative shall pay the remuneration of the criminal mediator.
Conclusion
In summary, the Resolution embodies the UAE’s commitment to integrating alternative dispute resolution mechanisms into its legal framework. It has significant prospects of enhancing the efficiency and effectiveness of handling and disposal of criminal cases, while ensuring that those entrusted with this vital role operate under stringent legal and regulatory oversight. This Resolution not only augments the UAE’s justice system but also aligns it with global practices that value mediation as a means of fostering justice and reconciliation.