Mauritius
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
In Mauritius, the parties are free to resort to negotiation or mediation, either as may be contractually provided or of their own volition at any point in time. Negotiation can take place as an alternative to litigation or in parallel thereto and is generally led by legal representatives. Mediation involves an objective, independent and impartial person (the mediator) helping the parties to try to reach a negotiated settlement.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
If parties have agreed to engage in ADR prior to or instead of litigation, Mauritian Courts will not assume jurisdiction in the matter. If the parties resolve the dispute during the ADR process, the agreement reached by the parties as a result thereof is binding on them and they cannot litigate/arbitrate the matter anew. Engaging in ADR does not affect time limits for the purposes of limitation of actions nor does it impose an automatic stay on any proceedings or arbitration already commenced.
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?
Unless parties have so agreed, there is no general obligation for parties to engage in ADR in Mauritius. However, certain pieces of legislation do encourage parties to engage in ADR. For example, 1) Mauritius labor laws encourages workers and employers to negotiate during disciplinary proceedings with the view of promoting a settlement, or the laws provide for the mediation of labor disputes before a statutory body, the Commission for Conciliation and Mediation, in prescribed circumstances; 2) the Chief Justice is empowered to, at any stage of any proceedings, refer any civil case to a Judge for mediation with a view to disposing of that civil case by agreement or narrowing down the issues. Where the parties have agreed to engage in ADR or are referred or required to engage in ADR, they have the obligation to submit themselves to ADR. If parties fail to do so, this may amount to a breach of a contract, of the relevant laws or of a court order.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes. The parties can agree to engage in ADR to resolve any eventual disputes at the time of entering into a contractual relationship. In practice, this is usually in the form of a dispute resolution clause involving one or more of the ADR methods which the parties must undertake as per an agreed formal process. The existence of a dispute as per the dispute resolution clause will then automatically trigger the parties’ obligations to engage in the ADR process, the modalities of which would have been pre-determined.
When does ADR generally take place?
ADR can take place any time from the existence of the dispute. Except for informal negotiation which is often engaged in parallel with litigation, any other ADR process is likely to take place before litigation/arbitration. The most appropriate time for ADR will depend on the circumstances of the case, including whether the issues in dispute are sufficiently clear and the existence of any contractual or legal obligations on the parties to engage in ADR.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Generally yes as this would be contained in the ADR clause/agreement. However, if the parties do not agree on or invoke without prejudice privilege and confidentiality in their contracts or otherwise, no such privilege or confidentiality will automatically apply.
Does the output from ADR create precedents?
As the ADR process is usually out-of-court and the outcome is one which is ultimately based on the agreement reached by the parties and/or delivered in private, it does not create a precedent. An arbitral award is also binding on parties only.
Who bears the costs of ADR?
It depends on the agreement in place and/or governing rules. The parties are generally expected to bear their own individual costs and expenses, such as legal fees, and to share costs and expenses, such as mediator or arbitrator fees, and venue costs.
Is your jurisdiction subject to any specific rules for cross border ADR?
Mauritius is party to the New York Convention, namely, the Convention on the recognition and enforcement of foreign arbitral awards and has domesticated the Convention as a dualist state. Mauritius has signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) but has not yet ratified it.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
There is no obligation on parties to engage in the ADR process before entering a court case. There is no requirement for mediators or arbitrators to be legally qualified.
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