Mozambique
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Yes, Mozambique law provides that Mediation is an ADR, defined in general terms in Law n. 11/99 of July 12 (hereinafter “Mediation”). Furthermore, Resolution n. 1/TS/GP/2021 of December 2, published in the Official Gazette of February 22, 2022, created Judicial Mediation, as a formal ADR (hereinafter “Judicial Mediation”). In practical terms, Judicial Mediation offers to the parties the possibility of submitting the resolution of a dispute in extrajudicial terms or within the course of a pending judicial lawsuit. For this reason, should the parties agree to the Judicial Mediation, the mediator is appointed by the parties or by the official services from a list of certified mediators. On the contrary, in the context of a common Mediation, the mediator is an individual chosen by the parties. Other features of Mediation and Judicial Mediation are similar, notably that both require the agreement of the parties. The procedure of Judicial Mediation is governed by law in more detailed terms.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Yes, should the parties engage in mediation, the deadlines of pending lawsuits will be automatically suspended. Furthermore, the agreement of the parties to engage in mediation will also automatically interrupt the deadlines of statute of limitations.
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?
ADR is not compulsory (please revert to answer to question 1). Furthermore, we are not aware of any plans (i.e., changes to legislation) in the sense that ADR becomes compulsory, either in general or in specific areas.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Yes. The parties can agree in advance to engage in ADR, for instance by means of a contractual clause. This offers a potentially swifter resolution of the dispute. For instance, the parties may specify that Mediation should not exceed 60 days (which is precisely the mandatory legal deadline of Judicial Mediation).
When does ADR generally take place?
ADR can take place:
- at any time before the dispute is submitted to the jurisdiction of the court (Mediation and Judicial Mediation); or
- in the course of a judicial lawsuit, the court may invite the parties to resolve the dispute by Judicial Mediation.
In either case, the enactment of the ADR procedure requires the agreement of the parties.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Yes, under the law, mediation is confidential to the following extent:
- any sessions are private with restricted access to the appointed Mediator, the parties and its representatives; and
- the facts, statements, suggestions or proposals conveyed by a party within the mediation cannot be used by the other party as allegation or means of evidence in the context of any judicial or arbitration procedure, except if and when necessary to enforce the settlement agreement;
- any information conveyed by a party to the Mediator in a one-to-one private session is confidential and may only be referred by the latter in the joint session, upon authorisation of the disclosing party.
Does the output from ADR create precedents?
No. However, please note that if, within the ADR procedure – in any of the scenarios referred above in answer to question 5. – the parties agree to settle the dispute, such agreement will be judicially enforceable.
Who bears the costs of ADR?
The law provides that the Judicial Mediation does not trigger any costs to the parties. In the case where the dispute is settled by Judicial Mediation within a pending lawsuit, the judicial fees will be charged under the standard terms applicable to the said pending lawsuit (i.e., without any additional fees or surtaxes in connection with the Judicial Mediation).
Is your jurisdiction subject to any specific rules for cross border ADR?
No. Mozambique has so far not signed up to the United Nations Convention on the 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?
ADR is not permitted for the resolution of disputes of a criminal nature.
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