The System of Settling Disputes Outside the Official Judiciary: A Comparative Study

Dr. Nabil Al Obeidi
Assistant Professor of Private Law – College of Law – University of Bahrain


Arbitration is a special method to resolve certain types of disputes by an arbitral tribunal to which the parties are referred under the Arbitration Convention. It is a special judiciary to settle disputes between the opponents. It is the oldest historical method, preceding formal judiciary, characterized by speed, efficiency and flexibility. Therefore, the Bahraini legislator gave arbitration the importance it deserves, and has hereby issued the Arbitration Law no 9 of 2015, dated 05 July 2015. This law represents a path to resolve dispute and ensure the impartiality and expertise of the arbitrators. However, the notion of mediation, conciliation and arbitration in Arabic legislation is not specific when compared with “Mediation” in English or French, which requires development of these notions and unifying a term to refer to the mechanism of conflict resolution in a consensual, voluntary course.
Arabic legislation lacks uniform legal definitions of mediation, reconciliation, arbitration and conciliation. Different definitions have been introduced by different Schools of thought. For example, mediation, reconciliation, arbitration, and conciliation are used in France and Tunisia to refer to the administrative conciliator, or judicial mediation in other systems, as well as contractual mediation, which is the best mechanism for resolving disputes because of its flexibility and ability to adapt to the needs and interests of the parties.
There is no doubt that the diversity of forms of mediation and conciliation in comparison to similar concepts and mechanisms such as arbitration and reconciliation necessitates defining these terms.
The importance of the research lies in showing the importance of these new legal systems that were dictated by economic conditions as an economic necessity imposed by the constraints and impulses of economic transformations and the important developments in economic activities, which prompted the emergence of these expeditious systems in regards to resolving conflicts in addition to reducing the number of cases referred to courts, which is an important tool to attract investment.
The recent inclusion of these systems – mediation, conciliation, reconciliation, arbitration – in our Arab legislation, drives us to explore the effectiveness of these laws in resolving disputes and whether these laws activated these alternative mechanisms or limited it to resolving disputes, which is the focus of this paper.

Keywords: Mediation, conciliation, arbitration, special judiciary, reconciliation.

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