Further to our previous four posts (Part 1, Part 2, Part 3 and Part 4) on the use of ADR in Africa we now feature in part 5 the responses from Niger, Nigeria, Republic of Congo, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia and South Africa to the question: are parties to litigation or arbitration required to consider or submit to alternative dispute resolution before or during proceedings?
Niger
Alternative dispute resolution is not compulsory in Niger but mediation or conciliation proceedings may be instigated by the judge in litigation proceedings.
Nigeria
In matters pending before Nigeria's High Courts, particularly the Lagos High Court, at the case management conference stage, parties are required to consider alternative means of settling the issues between them, and where they are desirous of doing so, the court may refer them to an appropriate ADR centre. Under order 3(11) of the HCLR 2012, it is now mandatory to attempt ADR in cases commenced after 31 December 2012. The provision states: "all originating processes shall upon acceptance for filing by the Registry be screened for suitability for ADR and referred to the Lagos Multi Door Court House or other appropriate ADR institutions or practitioners in accordance with the Practice Directions that shall from time to time be issued by the Chief Judge of Lagos State".
In May 2013, the senate passed for second reading two bills seeking to establish ADR agencies in Nigeria, to support the court – annexed rules.
There is no requirement to consider or submit to ADR in arbitration.
Republic of Congo
There are mandatory conciliation procedures, in particular for opposition to orders to pay, and in divorce and employment disputes.
Rwanda
Parties to arbitration are not required by law to consider or submit to ADR before or during proceedings, unless the agreement requires that of the parties.
With respect to commercial litigation, if the parties wish to mediate, the judge may grant a stay to allow the parties to attempt mediation.
In labour cases, there is a requirement to mediate with a district inspector of labour before taking the matter to the courts. Only where the mediation fails are the parties allowed to refer their case to the tribunal.
São Tomé and Príncipe
In both situations there is no legal requirement to submit to alternative dispute resolution before or during proceedings, unless the parties enter into an express agreement.
Senegal
There is a mandatory conciliation procedure before the tribunal départemental in divorce matters, and a mandatory mediation/conciliation before the employment inspector in employment matters.
Even if the parties are not obliged to submit to conciliation or to any other dispute resolution method, either before or after the procedure, the presiding judge of the tribunal départemental may attempt to reconcile the parties before litigation.
The Dakar CCIAD Centre de médiation et d’arbitrage was set up 15 years ago to facilitate mediation between commercial companies.
Seychelles
There is no legal requirement for parties to submit their dispute to any form of alternative dispute resolution. However, over the past year it has been the practice of the court to encourage litigants, in appropriate cases, to engage in pre-trial mediation or settlement negotiations. In some instances, the court appoints a judge to act as mediator.
Sierra Leone
Parties are not required to consider or attempt ADR. However, the judicial process has always encouraged alternative dispute resolution during litigation. At any stage of a legal action, parties can enter into consent judgments ie, the parties reach an agreement in settlement of part or all of a claim in writing, and the same is submitted to the court which enters it as a judgment of the court.
In addition to the above, with the establishment of the Fast Track Commercial Court, a more formal judicial alternative dispute resolution mechanism was introduced into the judicial system of the court.
Sub-rule 2 of rule 5 states as follows:
“The pre-trial judge shall within fifteen days from the date the claim is assigned to him or her, invite the parties to settle the issues for trial or effect settlement of the claim”.
This stage is now firmly regarded as the Alternative Dispute Resolution stage (ADR) and it can result in the settlement of a matter without recourse to full trial.
Somalia and Somaliland
There is no legal requirement for parties to submit their dispute to any form of alternative dispute resolution before proceedings commence. The Civil Procedure Code allows judges to refer any issue before them to non-binding arbitration before the judge commences his or her adjudication. In practice, most cases go through some form of ADR administered by the clan networks either at the request of the parties or the judge. The clan system is commonly known as the informal judicial system. The parties may submit their case to ADR, which should stay the litigation pending the outcome of the ADR.
South Africa
No, not at this stage, unless otherwise provided in an agreement between the parties. Under proposed new court rules, mediation will become a compulsory step in all civil and commercial litigation, and a pilot project will be introduced, probably in 2013, in all High Courts and in nine regional civil courts.
In addition, the King III report on corporate governance places a fiduciary duty on management to consider the use of ADR, in particular mediation, before deciding to litigate. A number of South African organisations, including AFSA, Tokiso and the African Commercial Dispute Settlement Centre, are actively promoting the more widespread use of mediation as a dispute resolution technique in commercial disputes.
In May 2013, new mediation rules were published by the Justice Department for comment.