MEDIATION IN THE BUSINESS WORLD IN MOROCCO
Mediation, which is an amicable and confidential method of resolving business disputes and technical and financial disputes, avoids unnecessary and often costly litigation.
We explained in the article « Mediation in Morocco: amicable resolution of trade disputes » published a few weeks ago that :
- the average of legal proceedings in Morocco is four years
- the judicial process is an uncertain, costly, long and complex outcome
- uncertain justice in a country can lead to a loss of confidence of citizens and national and foreign investors.
Many litigation files become more technically complicated and require the intervention of specialists and experts in new fields, to give essential advice and to be able to process a file, which leads to endless delays.
Does mediation in Morocco respond to this issue as a dispute resolution process, to the speed and requirements of the business world, as well as to the complexity of these technical issues?
Commercial mediation for the Moroccan company
The extension of mediation
There are several kinds of mediation: commercial mediation, banking mediation and social mediation. These distinctions are not enshrined as such in the law and are only the reflection of the practice implicitly recognized by the legislator.
In all mediations there is the concern to maintain the relationship between the parties, especially in the business world, in view of future collaborations which constitute a capital purpose.
The life of the company is strewn with disagreements: conflicts between the provider company and its customers, between shareholders and directors, between an employee and his employer or between competitors. Commercial mediation is a conventional, voluntary and confidential method of resolving a conflict of a commercial, local or international nature in which a neutral, independent and impartial third party - the mediator - facilitates, structures and coordinates the negotiations of the parties, with a view to help them find an amicable solution. This commercial mediation offers particular advantages qualifying it as one of the necessary steps in the pursuit of better access to justice and legal certainty.
The training of mediators
The quality of the mediation depends on the person of the mediator. In Morocco culturally, people tend to look for a man of a certain age to play the role of mediator. While the business world now requires advanced and technological knowledge in all areas.
The primary qualities of a good mediator are competence, impartiality, neutrality, independence, respect for public order, fairness during interviews, autonomy and confidentiality.
The mediator is a third party in the background, a midwife, who guides the parties and makes up for slippages but must not intervene (unlike a conciliator). He's not a referee and his very presence is important. The first role of the mediator is to reassure, the mediator is not a lawyer but his prerequisites of knowledge of the mechanisms of justice are useful to him.
It seems reasonable that the mediator called upon has knowledge of the field concerned, at least in terms of its vocabulary, its context (in particular in the field of construction or medicine). The mediator must be able to understand and support the parties at this level.
The role of the mediator
The mediator is a person or association appointed by the judge or by the parties to the dispute to help people resolve a conflict amicably. The mediator is a third party responsible for reconciling the points of view of the parties responsible for his appointment, and putting an end to their dispute by facilitating the conclusion of a transaction.
By hearing the parties and getting them to compare their points of view, the mediator enables them to find the solution themselves. He is responsible for facilitating the conclusion of a transaction between the Parties with a view to settling their dispute. It must help the Parties to resume and maintain a peaceful dialogue, and support them in the search for a solution to their dispute. He is not bound by an obligation of result. If mediation is successful, the parties may submit their agreement for approval by the judge to whom it is enforceable.
The mediator judge has a key role to play in supporting businesses and settling disputes inherent in the real estate activities, construction and land development. He must meet a variety of criteria, including a demonstration of will, fifteen years of minimum experience in the field of activity.
Technical conflicts must be managed by experts
The mediator must conduct the mediation on the basis of the freedom of the Parties. The Parties are in a voluntary decision-making process, each of them making free and informed choices.
To better manage a mediation in Maro, and on the subject of the mediator's skills, two theses are divided into opinion :
Proponents of the first argue that the resolution of disputes by mediation presumes the skills and technical or legal expertise of the mediator. In principle, mediation ends in a settlement and the mediator must know the conditions of its validity, as he must know the alternative that the judicial process could have offered to the parties.
Proponents of the second tendency do not attach importance to the technical skills of the mediator. It only matters its ability to reconnect between the parties and help them negotiate a transaction. He is therefore a facilitator, having to master conflict theory, negotiation techniques and good communication.
The mediation agreement
The mediation agreement is the contract by which the parties agree to appoint a mediator responsible for facilitating the conclusion of a transaction putting an end to the dispute, whether born or to be born. (327-56 CPC) It can be either a mediation compromise when it is concluded after the outbreak of the dispute, or a mediation clause when it appears in the basic contract. Whether it is a compromise or a clause, the mediation agreement is generally recorded in writing.
Fiutak's wheel
Thomas Fiutak is a great specialist in mediation, his wheel is no less famous. It identifies, after the presentation phase, 4 main stages in mediation: the what, the why, the how and the finally how.
After each having talked about the facts, the history of the conflict, and having reached an agreement on the disagreement (What phase), the parties tackle the dispute, moving from a logic of positions to a logic of needs ( Why phase).
All the possible solutions are then mentioned (how phase) before the final solution is chosen which will be formalized in a written agreement (finally how phase).
The duration of the mediation
The duration of the mediation cannot exceed three months from the appointment of the mediator. This period may be extended by agreement of all the Parties. At any time, each of the parties may freely put an end to the course of the mediation. At the end of the three-month period, possibly extended, and in the absence of agreement between the parties, the mediator closes the process and issues the Parties with a non-transaction document
How to insert a mediation clause ?
A mediation clause can be usefully inserted in any contractual document whose stake justifies recourse to this type of procedure or in the articles of association of a commercial company (with the sole exception of disputes concerning the nullity or dissolution of the company) . It does not preclude providing, in the event of mediation failure, for recourse to arbitration or to the courts.
We offer you the following model: « All disputes, which may arise from the interpretation, execution or termination of these and their consequences, will be settled by mediation. »
Arpio Architects architectural agency of Casablanca, Morocco, directed by Berrada Mohamed Architect, Expert and international mediator, and thanks to its international expertise between Belgium, Canada and Morocco for more than twenty years, in the field of architecture, industry and construction, has helped resolve multitudes of technical and financial conflicts
For any need for mediation in the resolution of a conflict contact us.
