Published in MARC Newsletter June 2015

“Do you really want to end up in Court?” If you are about to get entangled in a tedious and costly lawsuit, you would probably want to think it over. Everybody knows it. Courtrooms are clogged and you are in for a protracted roller coaster ride which, depending on the nature of the dispute, could last years and cost you a fortune.

The problem is that most would be litigants are not aware that alternatives exist to courtroom action which could save them time and money and at the time contribute to alleviate the pressure on courts and considerably reduce the backlog of cases.

While people in Mauritius would generally know of the existence of arbitration as an alternative mode of dispute resolution, most are simply not aware of what mediation can offer.

To put it simply, mediation has in other jurisdictions drastically helped in keeping disputes out of the courts, saving parties to a dispute time, money and stress, as well as providing them with an array of flexible, creative solutions which neither a judgment of a Court of Law nor an arbitral award would have offered.

And the difference lies here: a neutral, independent third party challenging parties on their positions and helping parties compromise. Mediation is not about someone making a decision for you, but about someone helping you reach a decision.

And the advantages of mediation are numerous: the process is completely confidential and cost effective, parties are able to choose their mediator and are in full control of the process at all times, rules are relaxed allowing for customized solutions and parties normally end up the process shaking hands and getting on with their working relationships.

Although Mauritius has in the past few years demonstrated the ambition of propelling itself as an international dispute resolution centre of the likes of Singapore, Sydney or Hong Kong, efforts to promote mediation have been rather timid. The Employment Relations Act of 208 provides for the conciliation or mediation of labour disputes through a statutory Commission and in 2010 the Supreme Court established a Mediation Division under the Mediation Rules, with a view to referring “such civil suit, action, cause or matter which has been brought and is pending before the Supreme Court as the Chief Justice may deem appropriate…for mediation before a Judge of the Supreme Court.” While these attempts are indeed commendable, they both remain institutionally driven and lack the essential features which characterize mediation in its strict sense.

International ADR practitioners are almost unanimous in recognizing that Mauritius as an ADR Centre is highly appealing to them: a well balanced hybrid legal system, a genuine financial centre, a supportive government, a pool of competent legal professionals, an able judiciary.

So what else should we do? Insofar as mediation is concerned, the debate among professionals is whether a legal framework is required.

In order for alternative modes of dispute resolution to gain ground, we need a change of culture, so that instead of issuing proceedings, parties consider instructing a mediator to resolve their dispute. To most, mediation remains too vague a process and it is felt that in order to encourage parties to a dispute to embrace mediation, a number of questions need to be answered, the most recurrent ones being: Is there a privilege for mediators? Can a mediator be forced to disclose documents communicated in the course of mediation? How to enforce a mediation agreement in the event of default.

Indeed for the process to be attractive, people need to be reassured that a qualified mediator is protected by a strict privilege; that a mediator cannot be called as witness in a subsequent legal proceedings; that a mediator cannot be forced to disclose documents communicated during the mediation process, that a mediation agreement can be rapidly enforced before a Court of law, in the event of default, by a special homologation procedure. Obviously all these questions can only be catered for by putting appropriate legislation in place.

But legislating would not be sufficient. Innovation is the norm. Singapore has recently reinforced its position as the first specialist centre for the mediation of international commercial disputes. Of particular note is the establishment of a new ‘Arb-Med-Arb’ protocol, which allows a party who has commenced arbitration to stay arbitration proceedings to proceed to mediation. If the mediation is successful, parties can formalise the terms of any settlement in the form of a consent award, which is generally accepted as an arbitral award and, subject to any local legislation, is enforceable in the member states to the New York Convention.

Once again Mauritius seems to have to look up to its South East Asian counterpart and follow suit