Madagascar
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
In addition to arbitration, parties can use mediation and conciliation to resolve their commercial disputes.
Mediation is a structured process recognized by law no. 2012-013 of July 30, 2012 amending and completing certain provisions of the Code of Civil Procedure on mediation. It can be proposed by the judge as part of “judicial mediation” (art. 158.1 to 158.14) or requested directly by the parties as part of “conventional mediation” (art. 158.15 to 158.25).
Conciliation is a process whereby throughout the proceedings, the parties may conciliate on their own or on the judge’s initiative (article 154 of civil procedure code).
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Engaging in mediation suspends prescription periods from the date the mediator accepts the assignment (Article 158.2 paragraph 3 of Law no. 2012-013 of July 30, 2012). It has an effect on the litigation, since the judge can suspend the litigation proceedings until the end of the mediation. However, mediation does not relieve the judge, who may take the necessary measures at any time (article 158.2 of the Code of Civil Procedure). The judge may also terminate the mediation at any time, ex officio or at the request of a party (article 158.10 of the Code of Civil Procedure). At the end of mediation, the settlement agreement must be approved by the judge, who confers enforceability on it (article 158.12 of the Code of Civil Procedure). Once enforceable, the agreement can be enforced by the police, if necessary.
Conciliation also has an effect on the litigation, since the law expressly states that it can be initiated at any time during the litigation proceedings. At the request of the parties, the judge records the conciliation in a minute. The parties may request an extract from the minutes, which will be enforceable (Article 158 of the Code of Civil Procedure).
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
Recourse to ADR is not mandatory; it is based solely on the will of the parties wishing to avoid legal proceedings.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes, the parties are free to include in their contract, the option of an out-of-court settlement to resolve their dispute, such as conventional mediation (Article 158.17 of Law no. 2012-013 of July 30, 2012).
When does ADR generally take place?
ADR can take place at any time, from the moment the parties decide to settle their dispute through ADR. If it is initiated by the judge, it takes place at the time the judge deems favorable.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Article 158.9 of Law no. 2012-013 of July 30, 2012 stipulates that the mediator is bound to secrecy with regard to third parties. The mediator’s reports and statements may only be mentioned before the judge hearing the dispute, with the agreement of the parties. They may not be used in any other proceedings. In addition, the article 158.22 also stipulates that the mediator is bound to secrecy regarding the dispute entrusted to him/her, whether it concerns its existence or any other aspect of the mediation. Secrecy is general, absolute and unlimited in time.
Does the output from ADR create precedents?
In principle, it creates no precedent. Even if a settlement has the force of res judicata, it does not create a precedent. In the event of another dispute being submitted to ADR, the law does not expressly state that the mediator must apply the solution reached in a previous mediation.
Who bears the costs of ADR?
The cost of ADR is, in principle, shared by the parties. The parties are free to determine how the costs of mediation are to be shared between them. (Article 158.13 of the same law).
Is your jurisdiction subject to any specific rules for cross border ADR?
There are no specific rules for mediation and conciliation in cross-border disputes at present. Madagascar is not party to the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention).
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
Mediation is prohibited for disputes concerning the status and capacity of persons, and in procedural matters (article 158.1 paragraph 2 of Law no. 2012-013 of July 30, 2012).
According to the article 158.5 of the same law, the person carrying out the mediation process must satisfy the following conditions: 1) He/she must not have been convicted, disqualified or disqualified; 2) He/she must not have been the perpetrator of acts contrary to honor, probity or morality which have given rise to a disciplinary or administrative sanction of dismissal, striking off, revocation, withdrawal of approval or authorization; 3) Possess, through past or present practice, the qualifications required for the nature of the dispute; 4) In all cases, provide proof of practical training in mediation techniques from a mediation training school and/or accreditation as a mediator from a mediation institution and/or solid experience in the practice of mediation; 5) present the guarantees of neutrality, independence and impartiality necessary for the exercise of his mission; 6) Be accredited by a mediation institution.
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