MEDIATION PROCESS IN MOROCCO: AMICABLE RESOLUTION OF COMMERCIAL DISPUTES
Let us analyze mediation in Morocco in the light of the long experience of Architect, Legal expert and Mediator, Mohamed Berrada, CEO of Arpio Architects.
Mediation is an amicable and confidential method of resolving business disputes and technical and financial disputes, and which avoids unnecessary and often costly litigation. Using the adage "a bad arrangement is better than a good trial", mediation allows above all to resolve a dispute, a conflict or a professional, technical or commercial dispute between two entities or parties while avoiding the legal process.
Non-communication is the worst enemy of conflicts and the alternative way to state judicial settlement of commercial disputes, both national and international, allows other solutions than trial to end a conflict.
This is where mediation comes into play, in Morocco or elsewhere, to allow the amicable resolution of commercial disputes, by calling on a third party. This mediator, who can be an expert and specialist in his field, will help you find common ground with your opponent.
Il existe plusieurs modes alternatifs de résolution des conflits. Ces « MARC » permettent de pallier la Justice et de trouver une solution autre. On retrouve notamment dans ces modes alternatifs l’arbitrage, la conciliation, la médiation, etc. La médiation au Maroc ou résolution amiable de conflits commerciaux, est le mode alternatif le plus efficace, rapide et intelligent dans une optique Gagnant- Gagnant. Cependant, il est intéressant de dresser une image globale des MARC.
What is mediation ?
Mediation is an amicable and confidential method of settling disputes, which avoids unnecessary and often costly litigation. This is why mediation was strongly encouraged by the Moroccan legislator who established it by law n ° 08-05 of December 6, 2007.
Mediation is a voluntary and flexible process, which takes place in a private and confidential setting. A neutral and impartial person, the mediator, helps people involved in a conflict to communicate, to try to resolve their difficulties and to find by themselves a favorable outcome to their disagreement.
Any mediation or amicable resolution of commercial disputes, is a mode of facilitation of negotiations thanks to the intervention of a third party, neutral, independent, that the mediators will have chosen freely either at the beginning of the realization of a project itself to the birth of a conflict.
To learn more about conciliation and arbitration in collaboration with an architect, go here..
The advantages of mediation
There are several advantages to mediation. Being a process of finding amicable solutions, it is the fastest and cheapest way to resolve a conflict. Indeed, it is common sense that litigation is long, expensive and stressful. Also, two thirds of mediations have a favorable outcome and it is possible to resort to mediation from the first signs of a dispute.
In addition, nothing can be imposed on you by the mediator: only the solutions decided by the Parties will be retained, which is not the case in the context of an arbitration procedure. Finally, you can end the mediation at any time, on your own decision.
In the context of construction projects, mediation can be offered from the start of conflicts on site. This is a free and voluntary, flexible and confidential process, carried out in a safe and respectful environment. It is also possible to be accompanied and consulted in this context in order to preserve your rights and find a favorable outcome within a short period of time (3 months from the appointment of the mediator unless an extension validated by the parties).
The different types of mediation
Il découle de la définition de la médiation, que l’objectif est la résolution amiable de conflits commerciaux. Ceci en rétablissant la communication entre les parties et non pas la recherche d’un accord. De ce fait apparaissent deux types de médiation :
La médiation de projet : facilitation de négociations délicates ou complexes
La médiation de conflit : solution aux problèmes et conflits
Conflict mediation is mediation generated by the conflict itself. It is characterized by the intervention of a neutral and independent third party with a view to smoothing out the difficulties encountered by the parties and bringing them to compromise on a solution to the problem at hand. Mediation calls on people for resolution. The solution sought should partially meet the expectations of the parties and guarantee the sustainability of their relationship. This type of mediation is judicial, private or conventional: Judicial mediation is provided either by a mediator proposed by the judge, or by the latter himself in the Jordanian system.
Private mediation is entrusted to retired judges, lawyers and professionals recognized for their skills and registered in a national register in Jordan. Conventional mediation is carried out by a mediator appointed by the common will of the parties. To find out more, we recommend this article from the newspaper Les Ecos..
A bad deal is better than a good trial
The importance of mediation
With the outbreak of litigation, the parties spontaneously tend to resort to the courts. Of course, justice settles the conflict and makes the antagonists a winner and a loser. But it does not resolve the problem posed and does not close the disagreement.
On the other hand, mediation in Morocco (or elsewhere) tries to pinpoint the problem posed from which the parties really suffer. She seeks, starting from an agreement built by their own will, to find the appropriate remedy. Mediation can therefore only strengthen the building of a rule of law.
In Morocco, this method of amicable conflict resolution, an alternative to legal channels, has not yet been developed.
What type of mediation in Morocco ?
Unlike the Jordanian and French legislators, who provide for both judicial and conventional mediation The Moroccan has limited himself to conventional mediation (Law No. 08-05 of December 6, 2007), this legislative attitude is understandable. But in our opinion, judicial mediation also has its place in the country, especially in this start-up phase where everyone feels the urgent need to relieve the courts from a large number of small trials in the family, social and civil fields. and commercial. It is also an opportunity for judges to devote themselves to more important cases.
Voir aussi : www.cneam.com
What is the scope of recourse to Mediation in Morocco
The first role of the mediator is to restore communication. In principle, mediation must be crowned by a settlement, as it is conditioned by articles 1099 to 1104 DOC. Thus, cannot be the subject of a transaction:
A matter of state or public order
Personal rights that are not subject to trade
The commutative contract prohibited by Muslim law
The right to maintenance
The shares of the heirs in the succession.
Apart from this list, which is given as a limitation, it is permitted to compromise on other rights including the method of providing support and the hereditary rights already acquired. However, the Code of Civil Procedure also allows recourse to mediation during the proceedings. In such a case, it is brought to the attention of the court as soon as possible and interrupts the procedure.
The results of mediation
Il existe deux résultats principaux à un processus de médiation : parvenir à un accord ou ne pas y parvenir. Que se passe-t-il dans chacun de ces cas ?
What happens if an agreement is reached ?
Within this framework of amicable resolution of commercial disputes, the mediator draws up with the Parties a draft transaction containing the facts of the dispute, the terms of its settlement and what the Parties have agreed to put an end to their dispute. This transaction, signed by the Parties and the mediator, can no longer be called into question.
What happens if an agreement cannot be reached ?
No decision or award will have been imposed on any Party since nothing can be imposed. If an amicable solution cannot be found with the other Party, then there will be the possibility of pursuing the dispute through arbitration proceedings or before the competent courts.
Mediation will have no impact on a subsequent trial: the Code of Civil Procedure (CPC) specifies that the findings of the mediator and the statements he collects are covered by professional secrecy: no declaration or proposal, made before the mediator or by him, may not be subsequently invoked in legal proceedings.
Why include a mediation clause in a commercial contract or in the articles of association of a commercial company? The main advantage is that the other Party will not be able to seize any jurisdiction without having previously exhausted the mediation procedure.
La médiation par Arpio Architects :
Considered to be the most successful method, mediation develops a Win-Win process to satisfy both parties, ultimately offering them the possibility of renewing lasting relationships, both commercial, human and other. Developing the skills of a mediator in addition to those of an expert architect can be a good model of mediation or arbitrator, it being understood that the functions of expert already lead to immediate contact with the conflict, the raw material of mediation.
Directed by Berrada Mohamed Architect, Expert and international mediator, the mediation unit of Arpio Architects has always worked since its creation to alleviate conflicts and technical and commercial disputes of projects managed by the agency or any other project in which Arpio Architects s 'inserted for mediation purposes.
For more information, fill out this form and the Arpio Architects team will get back to you as soon as possible.
