Jordan
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Essentially, there is nothing preventing parties from negotiating a dispute prior to referring it to the court and it is not uncommon to include ADR clauses in commercial contracts, and to stipulate that in the event that amicable settlement is not successful, the parties can refer the dispute to arbitration or litigation.
Alternatively, after referring a dispute to the courts, the parties still have the option to halt litigation proceedings in order to seek to resolve the dispute amicably. If the parties reach an agreement, then the court will issue its decision with the contents of the parties’ agreement in the form of a final and irrevocable decision.
In addition, the parties may resort to mediation. In 2006, Jordan issued a law regulating and governing the process of mediation in resolving civil disputes called the Mediation for Settling Civil Disputes (the “Mediation Law”). In the event that the parties refer the matter to mediation, the judge will refer the matter to mediation before a “Mediation Judge” or through private mediation at the request or approval of the parties. The mediation law further incentivizes the parties to resolve their disputes through mediation by providing that all, or a portion, of the legal fees may be recovered if the matter is resolved through mediation.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Where parties agree to resort to mediation or amicable settlement, subject to the parties agreement and a court order, proceedings will be halted to attempt to resolve the issue through ADR. Also, if the dispute resolution clause contains a multi-tier dispute resolution mechanism where the parties agree to negotiate before referring the dispute to arbitration or the competent court, then the parties are expected to adhere to such mechanism and if either of the parties refers the dispute to arbitration or to court before exhausting the previous steps, then it is likely that the case will be dismissed as premature. If this step is part of the dispute resolution process, then commencing this step will stop the limitation period. Effectively, any step by which the claimant commences the dispute resolution process stops the limitation period.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
No. ADR is not compulsory and there are no plans to make it compulsory to consider ADR in all cases. Furthermore, the Government has not signed any pledge to enter into or consider ADR in all cases.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes, parties are able to agree they will attempt to resolve the dispute through ADR prior to referring the dispute to arbitration or to courts.
When does ADR generally take place?
Mediation and negotiation may take place at any point during the dispute.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Under the Jordanian Mediation Law, where disputing parties refer a dispute to mediation, the mediation procedures must be conducted confidentially, regardless of whether the dispute was referred to a Mediation Judge or a private mediator, and irrespective of the stage at which mediation was resorted to, and no concessions made by either party may be relied upon in any proceedings between the parties. However, the concept of without prejudice privilege is not recognized in Jordan in a manner similar to common law jurisdictions. While the information exchanged in the course of negotiations is not be privileged per se, lawyers are under a professional duty to refrain from divulging information and discussions disclosed during the course of good faith negotiations and cannot be compelled to provide such information or disclose such discussions. It is therefore always advisable that the parties enter into pre-negotiations agreement, in order to agree, on excluding certain information or communications exchanged during the course of negotiations from admissible evidence.
Does the output from ADR create precedents?
Under the Mediation Law, in the event that the dispute, has been partially or entirely resolved through mediation, the mediator shall submit a report to the case judge along with the parties’ settlement agreement. Once certified by the judge, the settlement agreement shall be considered a final and non-appealable judgment. The mediation process is confidential and any concessions made during the mediation process cannot be used as evidence. However, the mediator’s report on the successful settlement of the dispute is not confidential and becomes part of the court’s public records once submitted to court. The mediator’s report is very brief and generally only includes a statement of whether the dispute was resolved and the meetings held. If the mediation was not successful, the report shall also clarify how committed the parties have been in attending the mediation hearings.
Who bears the costs of ADR?
The Mediation Law makes a number of provisions relating to costs with regards to mediation.
Where the dispute is resolved by way of judicial mediation before the Case Management Judge, the entire sum paid in legal fees can be recovered. However, where the settlement was made after referring the case to the subject matter judge, then only half the fees can be recovered.
Where the dispute is resolved by way of judicial mediation before the Court of Reconciliation (Equivalent of the Magistrates’ Court), prior to the Claimant’s evidence being submitted to Court, the entire sum paid in legal fees can be recovered. However, where the settlement was made at any point thereafter, then only half the fees can be recovered.
Where the dispute is entirely resolved through a private mediator, the Claimant may recover half of the judicial fees paid, whereas the other half of the fees is considered to be mediation fees for the mediator, with a minimum value of 300 JOD. In the event that the remaining half (for the mediator) falls short of 300 JOD, then the disputing parties must pay the difference in equal shares.
Where the private mediator fails to resolve the dispute, the Case Management Judge must decide on the mediator’s fees, with a value no more than 200 JOD, payable by the Claimant.
Is your jurisdiction subject to any specific rules for cross border ADR?
No. Jordan is currently not subject to any specific rules for cross border ADR. Jordan is not a party to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
The private mediation referred to in the Mediation Law is carried out through private mediators who are so designated by the Chief Justice based on the recommendation of the Minister of Justice. Another a particular feature of mediation in Jordan, is the recovery of fees, wholly or partly, where the dispute is resolved through mediation as noted above.
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