Mauritius: LRC Report on "Mediation and Conciliation in Commercial Matters"

The Law Reform Commission has examined, under section 6 of the Law Reform Commission Act, the concept of 'mediation and conciliation', which is used for the resolution of employment relations disputes, and has considered its application – in furtherance of Government Business Facilitation Strategy - for the resolution of commercial disputes. The Commission has reviewed developments of this aspect of the law in other jurisdictions, research work carried out by other law reform agencies, as well as the norms evolved by the United Nations Commission on International Trade Law [UNCITRAL]. The main objectives and principles of Alternative dispute resolution [ADR] in connection with mediation and conciliation in commercial matters have been considered.

ADR has become increasingly topical in the international business community. There is a worldwide trend for parties to turn to one of the processes of ADR, such as mediation and conciliation, when they feel that resolution of their disputes should, for various reasons, be sought outside the constraints of proceedings before national courts, and in a procedure which is the most informal possible. ADR processes, such as mediation and conciliation, provide an opportunity for parties in a commercial dispute to consider and resolve all dimensions of the dispute in a private and confidential environment which also preserves good business relations.

In our view, parties involved in commercial disputes should be encouraged to explore whether their dispute can be resolved by agreement, whether directly or with the help of a third party mediator or conciliator, rather than by proceeding to a formal "winner v. loser" decision by a court. We therefore welcome the enactment by the Chief Justice of the Supreme Court (Mediation) Rules 2010.

In our view the resolution of commercial disputes by mediation and conciliation call for other developments. Parties should be encouraged to have recourse to Mediation Clauses in Contracts for the Settlement of Commercial Disputes. We also consider that it is in the interest of the nation that legislation be adopted, now that Mauritius has opened up to international law firms and the foundation has been laid for it to act as a jurisdiction of choice in the field of international arbitration, which would enable the country to emerge both as an 'International Arbitration and Mediation Centre‘ for international commercial disputes. The UNCITRAL Model Law on International Commercial Conciliation (2002) could be incorporated in our law. A system of training and accreditation of arbitrators and mediators/conciliators should be put in place, as well as ethical standards laid down.