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ION 2012-013 Amending and supplementing certain provisions of the Civil Procedure Code on mediation
Madagascar currently has a modern legislation and consistent with international standards by adopting the arbitration proceedings by Law No. 98-019 of December 2, 1998; in conciliation, arrangements have also been made by Law No. 2001-022 of 9 April 2003 and included in the Code of Civil Procedure. However, the simplification of judicial procedures proves to be a priority for the establishment of local justice. So in order to fully facilitate the development of these purported contracts, it appeared necessary to introduce in the Malagasy Code of Civil Procedure, mediation in civil and commercial matters. The term Alternative Methods of Dispute Resolution (ADR) or Alternative Methods of Dispute Resolution (ADR), all procedures available to litigants who, along with the state Justice, ensuring their other rights of access to legal methods , often faster. Arbitration, conciliation and mediation are therefore part of the ADR. More specifically, mediation is an Alternative Method of Dispute Resolution by which two or more persons or entities attempt to resolve their dispute by themselves, and to the satisfaction of each of them, with the using a neutral third party, impartial and independent, trained in mediation techniques, called mediator. Mediation therefore represents an alternative method of dispute resolution in which a third party, the mediator, will promote the conclusion of an agreement between the parties concerned. It is defined as "a cooperative process of conflict management, structured, voluntary and confidential, in which a third party, the mediator uses communication, negotiation and mediation to help participants communicate and find their own solution to the conflict between them. "
As such, mediation differs from arbitration. Indeed, in this other mode of dispute resolution, the parties rely on a third party, the arbitrator, the task of making a decision that will force and which, in advance, they agree to submit. Moreover, unlike the conciliation that can intervene directly between the parties, mediation therefore requires the intervention of a neutral third party with them. This can be chosen by the parties in the context of conventional mediation, appointed by a mediation institution for institutional or conventional mediation by the judge in the context of judicial mediation. Thus, this Act provides that mediation may be legal or conventional. It is legal if the judge hearing the case already appoint a mediator, upon agreement of the parties, to help them find a consensual solution to the dispute between them. It is called conventional when the parties attempt by themselves and voluntarily reach an agreement on resolving their dispute with the assistance of a mediator. The mission of the mediator whether conventional or judicial ruling is identical. It always takes place outside the courtrooms around the mediator and in the presence of the parties and, if they wish, for their advice. In loyalty and concern to respect the interests of each, the mediator strives to facilitate the agreement does not impose. Unlike the referee, the judicial or conventional mediator in fact has no judicial powers except the authority resulting from the confidence that the parties agree to it in fulfilling its mediation mission. Thus, if they wish, the parties may terminate the mediation at any time. Moreover, it may be entrusted to an individual or a mediation institution in all cases, the person who actually performs mediation must present the required guarantees of morality, competence, independence and impartiality, is bound by confidentiality. The choice made by this Act is to preserve the qualities of mediation preserving its flexible character while ensuring its effectiveness. To do this:
• deadlines sufficiently short procedures are proposed; • the confidentiality of mediation is strictly preserved; • cooperation between civil and commercial judges and institutions
mediation is facilitated; • enforceability of agreements resulting from mediation is recognized, especially
by the possibility for parties to approve the agreements resulting from mediation by the judge.
Mediation has the advantage of being quick and efficient. Thus, this Act is: 3
- to make changes changes in some provisions of the Code of Civil Procedure which will be inserted there as a result of the conciliation provisions; the title of Chapter concerned will be amended accordingly and divided into two sections, respectively devoted to conciliation and mediation;
- The proposed device, very simple and formal, is guided by the desire not to slow down the resolution of the dispute, mediation being enclosed within strict time and the judge may, at any time, terminate, d officio or at the request of the parties or the mediator;
- The consensual nature of mediation is devoted to it in several respects: the mediation is an agreement of the parties, and they may ask that it be stopped at any time; only their voluntary agreement will force concerning the solution of the dispute; they are free to decide how to distribute the remuneration of the mediator. It should be noted that the Ombudsman has no authority to hear the case;
- Efficiency is also at the center of deductions rules: this concerns in particular the aspects relating to the remuneration of the mediator, the resumption of the proceedings, the confidentiality of the mediation process, the lack of roads possibilities appeals on decisions;
- The requirements of the Ombudsman may be specified if it is a natural person.
This law, composed of five articles is therefore to amend and supplement certain provisions of the Civil Procedure Code in establishing the legal and conventional mediation. For this purpose, twenty five items will be inserted to secure the process through determination, including the terms of the mediation, the mediator quality and especially the enforceability of the agreement between the parties and approved by the judge. The first article provides for the modification of the title of Chapter II of Title I of Book of the Code of Civil Procedure. Article 2 concerns the heading of Section I of Chapter. Article 3 introduced into the Code of Civil Procedure 25 items numbered from 158.1 to 158.25 and are inserted after Article 158. These new articles concern judicial mediation in its first subsection and conventional mediation in its Subsection II. Articles 4 and 5 relate to various provisions. This is the purpose of this Act. 4
ION 2012-013 Amending and supplementing certain provisions of the Civil Procedure Code on mediation
The Congress of the Transition and the High Council of the Transition adopted in their respective sessions on 29 June 2012, the law which reads as follows: Article premier.- The heading of Chapter II of Title I of the Code Third Book of Civil Procedure provides: "cONCILIATION aND MEDIATION" Article 2. Articles 154 to 158 of the Civil Procedure Code are grouped in a section entitled "section I: reconciliation." Article 3. The following is added after Article 158 of the Civil Procedure Code a second section reads:
"Section II: mediation
Subsection I De judicial mediation || | Art. 158.1.- The judge hearing a dispute involving rights which the parties may freely dispose, after obtaining their agreement, appoint a third party, the mediator, to help them find a consensual solution to the dispute between the and, if possible, the negotiation of an agreement of said transaction terminating all or part of the dispute.
Mediation is however forbidden to disputes concerning the status and capacity of people and in procedural matters.
This designation rests with the trial judge, appeal and referred, during the proceedings.
Art.158.2.- Mediation covers all or part of the dispute. 5
In any case, it divests the judge may, at any time, the other measures it deems necessary.
Mediation suspends the limitation period on the date of acceptance of his mission by the mediator.
The period shall continue to run once the mediation ends.
Art.158.3.- The initial term of mediation is three months from the acceptance of his office by the Ombudsman. This mission may be renewed once, for a period not exceeding six months, at the request of the mediator and with the agreement of all parties.
Art.158.4.- Mediation can be entrusted to an individual or a mediation institution.
If the appointed mediator is a mediation institution, his authorized representative shall submit to the approval of the judge the name of the individuals that will ensure, within it and on its behalf, the execution of the measure.
In all cases, read judge ensures the availability of the mediator approached before his appointment.
Art.158.5.- The natural person responsible for executing the role of mediator must meet the following conditions:
1) Not have been convicted of a disability or forfeiture ; 2) Do not have committed acts contrary to honor, probity and morality that resulted in a disciplinary or administrative sanction of dismissal, cancellation, revocation or withdrawal of approval or authorization ; 3) possess, by present or past exercise of an activity, the qualification required given the nature of the dispute; 4) justify, in any event, practical training in mediation techniques followed with a mediation training school and / or mediator of approval to a mediation institution and / or of experience firmly adapted to the practice of mediation; 5) Present the guarantees of neutrality, independence and impartiality necessary for the exercise of its mission; 6) To be approved by a mediation institution.
Art.158.6.- The decision finds that mediation mentions the agreement of the parties, means the mediator and the date on which the case will be called at the hearing.
It sets the amount of the provision on account of the mediator's compensation as close as possible to the expected remuneration and designate the parties who will record the provision within the time limit; if several parts are designated, the decision indicates how much each party must record.
The decision, if logging is void and the proceeding continues. 6
Art. 158.7.- Since the announcement of the decision designating the mediator, the registry of the court shall notify the parties and a copy to the institution of mediation if the measure is entrusted to him or to the Ombudsman; as soon as possible.
The mediator or mediation institution shall inform the judge without delay its acceptance in writing.
The mediator brings the parties together, with the utmost diligence, after ensuring that the provision set by the judge is recorded in the registry of the court.
158.8.- The mediator does not have investigative powers. However, it may, with the agreement of the parties and for the purposes of mediation, which heard the third consent.
The mediator may not be committed, in the same instance, to make a measurement instruction.
158.9.- The mediator is required to an obligation of secrecy in respect of third parties.
The findings of the Ombudsman and the statements he collected can not be raised before the judge hearing the case only with the agreement of the parties. They can not be used in another proceeding.
However, the Ombudsman takes the judge informed of the difficulties encountered in accomplishing its mission.
158.10.- The judge may terminate at any time for mediation, on request of a party or on the initiative of the Ombudsman. The judge may also terminate automatically if the proper conduct of the mediation appears compromised.
In any case, the matter must first be called to a hearing at which the parties are summoned at the instance of graft by any means in writing.
At this hearing, the judge, if he completes the mission of mediator may proceed. The mediator is informed of the decision.
Art.158.11.- At the expiration of his mission, the mediator or mediation institution shall advise the judge that the parties are or not managed to find a solution to the dispute between them.
On the day fixed, the case comes before the court unless the parties can be withdrew instance and action.
The judge Art.158.12.- counterpart, at the express request of the parties, the agreement said transaction they submit to him, if the agreement is not contrary to public order.
In case of request of the parties, the judge shall rectify.
The approval gives legal force to the agreement unless the provisions of the agreement said transaction are contrary to public policy. 7
Art.158.13.- The judge fixed the final remuneration of the mediator or mediation institution authorized to take delivery amounts recorded at the Registry.
The parties shall freely determine the distribution of them to bear the costs of mediation.
He orders, if any, the payment of additional sums indicating the party or parties who have the care or restitution of money paid in excess on production of vouchers.
Art.158.14.- The decision ordering or renewing or terminating mediation is not subject to appeal.
In conventional mediation
Art.158.15.- Mediation is a structured process, regardless of how it is named or referred to, where two or more parties to a dispute attempt by themselves, voluntarily, to reach agreement on the resolution their dispute with the assistance of a mediator, a neutral third party, impartial and independent.
This process can be initiated by the parties. It excludes attempts made by the court or judge hearing a case to solve it during the judicial proceedings concerning the dispute.
The so-called conventional mediation ad hoc means any amicable procedure organized by the parties by signing a mediation agreement.
Conventional mediation is called institutional when the parties use a mediation institution to organize the proceedings.
Art.158.16.- The parties may agree to use mediation to end all or part of a dispute has arisen or may arise concerning rights they freely available, subject to the provisions of Article 158.1.
Art.158.17.- Parties who freely inserted a mediation clause in their contract commitment among themselves to make every effort to organize mediation prior to any judicial or arbitral disputes.
The judge or the arbitrator hearing the said contract in dispute opposes a plea if a party invokes the existence of the clause.
THE Art.158.18.- initial term of the mediation freely determined by the parties is a maximum of three months from the acceptance of his office by the Ombudsman.
At the request of the mediator and with the agreement of all parties, this mission may be renewed for a period not exceeding six months. 8
Conventional mediation suspends the limitation period on the date of acceptance of his mission by the mediator. The period shall continue to run once the mediation ends.
Art.158.19.- The mediator or mediation institution is appointed by mutual agreement by the parties to arrange mediation.
Art.158.20.- The use of ad hoc called conventional mediation is subject to a written agreement, signed by the parties and the mediator.
The mediation agreement under the general law of contracts.
Art.158.21.-Any person chosen by the parties as a mediator or designated by a mediation institution must meet the conditions set by section 158.5 of this Act.
Art.158.22.- The mediator is bound to secrecy on the matter entrusted to him, whether its existence or any other aspect of mediation. The secret is general, absolute and unlimited in time.
No statement, proposal or statement can not be raised before the judge or arbitrator, if mediation fails or on the occasion of the approval by the judge, the agreement between the parties.
This obligation of confidentiality extends to the settlement agreement resulting from mediation, unless the parties expressly request the approval or if its implementation and its application require disclosure.
Art.158.23.- The parties and the mediator agree that the mediator will not perform as an arbitrator, representative or counsel of a party in arbitral or judicial proceedings relating to the dispute subject to mediation. The parties also undertake not to mention the mediator as a witness in such proceedings.
Art.158.24.- The parties or their authorized representatives will personally present at mediation. They may have the assistance of a lawyer or any other person of their choice during the course of mediation, without prejudice to the possibility for the Ombudsman to receive parties outside the presence of their counsel or the person who assists, if he deems useful for the proper performance of its duties.
The mediator organizes its mission diligently. If he considers it appropriate, it may confer separately with each party having collected their agreement in principle on this faculty. He then agrees to maintain a balance of processing them and the confidentiality of their exchanges which can only be met by the parties themselves.
Art.158.25.- If they reach an agreement about the dispute, they draw up and sign a written agreement as transacted. In the absence of advice, if requested by the parties, the mediator writes the agreement or aid to. 9
By signing the agreement said transaction, the parties put an end to the dispute and are bound by this agreement they undertake to fulfill in good faith.
The agreement says of transaction authority of res judicata between the parties.
If they wish, the parties may submit the agreement said transaction the approval of the President of the Court of First Instance. The approval gives legal force to the agreement.
Approval granted by order of the President of the Court of First Instance in whose jurisdiction was concluded. The President of the Tribunal and ruling as in summary proceedings.
The Chairman of the Tribunal may refuse to approve the agreement if it finds, by reasoned decision that the agreement called ad hoc mediation is irregular or that the provisions of the agreement said transaction is contrary to the order public.
The decision granting or refusing approval is not subject to appeal.
Article 4.- regulatory texts will be taken for the implementation of this Act.
Article 5. This law shall be published in the Official Journal of the Republic.
It will be enforced as a law of the state.
Antananarivo, June 29, 2012
THE CHAIRMAN OF THE BOARD OF TRANSITION, THE PRESIDENT OF THE CONGRESS OF THE TRANSITION
Rasolosoa Dolin RAKOTOARIVELO Mamy
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