BAHRAIN Law and Practice Contributed by: Noor Al Rayes, Fatema Sarhan, Bradley Price and Raghad Al Matrook, Al Tamimi & Company
outcomes, reduced costs, and preservation of busi- ness relationships. 4.2 Requirements to Engage in ADR There is no mandatory requirement to engage in ADR in commercial disputes. Mediation is based on party consent, though courts may refer disputes to media- tion where both parties agree. As an exception, in personal status matters before the Sharia courts, conciliation is mandatory before proceedings can continue. Where parties have contractually agreed to ADR (for example, through a mediation clause), failure to com- ply may be raised as a procedural objection. Failure to attempt mediation under a multi-tiered dispute resolu- tion clause may prevent the dispute from proceeding Under the Mediation Law, mediators must hold a bachelor’s degree, have at least three years’ relevant experience, and complete an accredited mediation course. 4.3 Impact of ADR Engaging in ADR does not, as a general rule, affect a party’s right to litigate or arbitrate. Parties remain free to commence or continue court or arbitral proceed- ings alongside mediation unless otherwise agreed. A mediation settlement must be in writing and is legal- ly binding. It may be granted executory force, allowing enforcement like a court judgment. As an incentive, if a dispute is resolved through mediation before judg- ment, the party responsible for court filing fees may be exempted fully or in part. In multi-tiered dispute resolution clauses, disputes not resolved within a specified mediation period may pro- ceed to arbitration or litigation as the clause provides. 4.4 Timing of ADR ADR, particularly mediation, can take place at vari- ous stages. Parties may mediate before initiating pro- ceedings or at any point during litigation. Courts may refer disputes to mediation where both parties agree. to arbitration or litigation. Mediator Requirements
Mediation can be terminated at any time, after which the dispute may proceed before the court or arbitral tribunal. Limitation Periods Limitation periods are not automatically suspended during mediation. Parties should take protective steps, such as initiating proceedings or agreeing in writing to suspend the limitation period, to preserve their claims. 4.5 Confidentiality Mediation proceedings are confidential under the Mediation Law and institutional rules. Confidentiality encourages open discussion between parties. Infor- mation disclosed during mediation cannot be used as evidence in subsequent judicial or arbitral proceed- ings. Mediators, parties, and participants are generally prohibited from testifying about matters arising during mediation. Mediation sessions are also private, with no formal record or transcript. Exceptions may arise where disclosure is required by law, necessary to prevent a crime or needed to enforce a settlement agreement. 4.6 Costs ADR cost allocation depends on the procedure and any party agreement. Mediation costs are generally lower than litigation or arbitration, typically calculated on time spent rather than dispute value: • under BCDR rules, parties pay administrative and mediator fees, usually calculated hourly; • costs are typically shared unless otherwise agreed; and • parties may be jointly responsible for mediator fees and related expenses. Where disputes are resolved through mediation before judgment, court filing fees may be waived, providing a financial incentive for early settlement. 4.7 Courts and ADR Bahraini courts take a supportive approach towards ADR. The Mediation Law reflects broader efforts to promote alternative dispute resolution.
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