Further to our previous three posts (Part 1, Part 2 and Part 3) on the use of ADR in Africa we now feature in part 4 the responses from Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique and Namibia to the question: are parties to litigation or arbitration required to consider or submit to alternative dispute resolution before or during proceedings?
To a large extent, arbitration proceedings are synonymous with alternative dispute resolution under the law. In other words, arbitration proceedings are an alternative to actual courtroom litigation. Where possible resolution is determined through arbitration, and the court will normally support arbitration proceedings, especially if it is achieved through the consensus of the parties.
The Court of First Instance may act as conciliator at any time during the proceedings if it chooses to do so and if the parties agree. Moreover, Law No 4/2010 relating to mediation and arbitration concerning disputes falling under the jurisdiction of the Summary Courts requires the said courts to offer mediation before proceeding to arbitration.
Alternative dispute resolution is encouraged to prevent parties from being forced to endure a lengthy and costly procedure and to permit conciliation.
Hence, before or during the procedure, parties to litigation or arbitration may, by way of a transactional agreement, decide to put an end to the dispute between them. However, this is only an option proposed to the parties and not an obligation which could be imposed on them.
The Centre for Arbitration and Mediation of Madagascar has its own institutional rules for mediation. It has not been operational for several years, however, so has not been used to facilitate mediations.
There is no statutory requirement for parties to arbitration to submit to alternative dispute resolution. Parties will only be required to go through mediation before proceeding to arbitration if an agreement entered into between them requires them to do so.
With respect to litigation, subject to certain exceptions, all cases commenced in the High Court of Malawi or any subordinate court must, where the defendant indicates an intention to defend, first go to mediation. The assistant registrar of the High Court maintains a list of mediators and a list of experts. The mandatory mediation is conducted by a person chosen by the agreement of the parties from the list of mediators maintained by the assistant registrar or, if the parties consent, a person who is not named on the list.
If the matter is not settled during mediation, the action will proceed in the court in which it was commenced. There have been no statistics compiled on the success rate of mediations. Mandatory mediation is still a relatively new concept in Malawi and it appears that the success rate so far is not very high. Mediations conducted by judges of the Commercial Court (in commercial matters) appear to have a much higher success rate than other mediations.
Conciliation exists for divorce matters or orders to pay. Apart from these cases, there is no mandatory mediation or conciliation procedure. The Code of Civil, Commercial and Social Procedure (CPCCS) gives the court the authority to attempt to reconcile the parties, at any time during the proceedings. The court may therefore, in agreement with the parties, appoint a mediator to hear them in order to try to reach an amicable settlement.
If the parties are not required by law to submit to mediation or any other dispute resolution procedure before or during litigation, the presiding judge of the court may attempt to conciliate the parties through mediation.
There is no legislation on conciliation but there is nothing to prevent judges from using it.
In 2011 the Supreme Court adopted the Supreme Court (Mediation) Rules 2010 (the Rules). The Rules appoint several judges of the Supreme Court as mediation judges, to assist parties in settling their disputes. The Rules apply to civil suits and actions pending before the Supreme Court and suits which the Chief Justice deems appropriate to refer to mediation. Additionally, a party to a civil action may also apply to the Chief Justice for the matter to be referred to mediation. The primary purpose of mediation under the Rules is for the parties to dispose of civil suits and actions by common agreement. There is no obligation for parties to civil suits and actions to participate in a mediation process. However, it is in the party’s interest to participate to avoid adverse cost consequences.
There is no requirement for parties to arbitration to engage in ADR.
Mediation is used in parallel to arbitration and litigation. In a bid to prevent or to resolve disputes, the parties may agree to appoint a mediator to facilitate the conclusion of a settlement (articles 327-55 of the Code of Civil Procedure). However, parties are generally not required by law to consider or submit to alternative dispute resolution before or during proceedings. Mandatory “mediation or conciliation” procedures should be followed in divorce cases though.
Mediation and conciliation exist in Mozambique but are not widespread. Parties to litigation and arbitration are not required to consider or submit to alternative dispute resolution before or during proceedings. Articles 60–66 of the Arbitral Law provide for an express framework for the resolution of disputes through mediation and/or conciliation but this relies on the mutual agreement of the parties to attempt these procedures before or during litigation or arbitration. Confidentiality is preserved under the Arbitral Law such that evidence adduced in mediation or conciliation cannot later be admitted in evidence before a court or arbitral tribunal. Any written settlement reached pursuant to mediation or conciliation has the force of an arbitral award pursuant to the Arbitral Law.
In the context of litigation, there is a degree of judicial encouragement to settle disputes. Under the Civil Procedure Code, the judge sets a preliminary hearing to attempt to reach agreement between the parties, but if this is not successful, the judicial case will continue.
Parties to litigation or arbitration are not required to consider or submit to any alternative dispute resolution before or during proceedings.
However, under the Labour Act 2007, parties to a labour dispute are required to attend compulsory conciliation before they proceed to arbitration.