MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
4. Other ADR Methods 4.1 ADR Procedures
where such an agreement exists, a party may seek to raise a plea in limine objecting to the court’s juris- diction, following which the court may stay proceed- ings or decline to assume jurisdiction over the matter, typically where the ADR mechanism has the effect of ousting the court’s jurisdiction. However, engaging in ADR does not interrupt or affect the running of time for the purposes of the applicable limitation period. While parties may jointly request a court or arbitral tribunal to stay ongoing proceedings in favour of ADR, this remains subject to the discretion of the court or tribunal and does not result in an automatic stay. The question of limitation does not arise in the same way in the context of judicial mediation, since this pro- cess can only be initiated once an action has already been lodged before the Supreme Court or Intermedi- ate Court. As judicial mediation operates through the transfer of a matter from the relevant division of the court to the mediation division, the interruption to the limitation period brought about by the commence- ment of the action before the court applies equally to Judicial mediation may take place at any point prior to judgment, upon referral of the matter to a mediation judge or mediation magistrate. Other ADR methods, such as institutional mediation or negotiation, typically occur prior to the commencement of more formal and binding dispute resolution proceedings, such as arbi- tration or litigation. the mediation process. 4.4 Timing of ADR Engaging in ADR does not suspend the running of limitation periods in Mauritius, except in the case of an arbitration – in which case it is generally recognised that the initiation of arbitral proceedings amounts to a citation en justice (summons) capable of interrupting limitation periods. 4.5 Confidentiality Judicial mediation conducted under the Supreme Court (Mediation) Rules 2010 and the Intermediate Court (Mediation) Rules 2019 is expressly confiden- tial in nature. Institutional mediation under the MARC Mediation Rules is similarly subject to confidentiality obligations.
Beyond litigation and arbitration, parties are generally free to decide on other ADR mechanisms, including mediation or adjudication. For mediation in the context of a pending litigation case, the Supreme Court (Mediation) Rules 2010 and the Intermediate Court (Mediation) Rules 2019 allow parties to have their dispute be referred to mediation before either a mediation judge or a mediation mag- istrate, respectively, who can ratify any settlement agreement reached and provide it with the same effect as a judgment of the competent court. For non-judicial mediation however, there is no spe- cific legal authority regulating this or the enforcement of agreements or decisions reached through it, which usually makes parties reluctant to resort to it. Although Mauritius has signed the Singapore Convention on Mediation, to date this has not been implemented in domestic law. Nevertheless, many parties continue to include mediation provisions in their contracts. 4.2 Requirements to Engage in ADR Judicial mediation under the Supreme Court (Media- tion) Rules 2010 or the Intermediate Court (Mediation) Rules 2019 usually requires either the Chief Justice or the President of the Civil Division to refer a dispute to mediation, and in practice this may be done upon a joint motion by the parties themselves. In line with the applicable principles of mediation, the parties are not obliged to enter into a settlement, and can always withdraw from mediation proceedings. As for the other ADR mechanisms, the lack of any legal framework governing them means that parties are free to organise their preferred ADR mechanism in the manner they wish, provided that it conforms with public policy principles. 4.3 Impact of ADR There is no general obligation for parties to engage in ADR in Mauritius. Unless the parties have con- tractually agreed to resort to ADR which ousts the court’s jurisdiction (eg, arbitration), they have a right to access to courts established by law. Nonetheless,
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