Abstract/Summary

In a comparison between Palestine and other selected Arab countries (especially the UAE, Qatar, Jordan, and Morocco), and England, this study explores the implications of mediation clauses in commercial contracts, whereby the parties agree to amicable dispute resolution (ADR) before seeking recourse in the courts or arbitration. Specifically, the overarching aim of this research is to reveal any deficiencies in Palestine’s mediation framework. Thus, the nature, use and outcomes of mediation clauses in both jurisprudence and case law were examined through doctrinal analysis of the relevant legal provisions. Consequently, the nature of the mediation clause as a form of ADR was explored, together with its validity and enforceability. A review of the extant literature revealed several significant research gaps regarding the reliability of mediation clauses in all the countries under study. A number of sub-issues also arose, namely, the role of good faith during negotiation, the certainty requirement, and the costs award as a means of enforcing mediation clauses in English commercial contracts. Correspondingly, this study presents some of the ways in which contractual mediation clauses have been enforced by the courts in the selected jurisdictions, prior to commencing legal proceedings. Additionally, it looks at the extent to which those courts can stay proceedings to facilitate ADR. Therefore, this thesis considers the application and validity requirements of mediation clauses in practice. By implication, the obligations of the parties and the distinction between jurisdiction and admissibility are discussed. Meanwhile, the effects of a party’s refusal to participate in mediation, issues such as separability, the matter of competence, and the judicial supervision of mediation clauses are compared and analysed. Hence, the Palestinian mediation system is evaluated in light of recent international documents and the mediation framework in its comparators, leading to appropriate recommendations.