PREPARING FOR CONCILIATION AND MEDIATION:
This section is aimed at representatives (or persons representing their businesses) preparing for conciliation and mediation.
In preparation it is important to note the following:
- The Africa Commercial Dispute Settlement Centre (The Centre) encourages parties to submit a Statement of Case before the conciliation meeting takes place. The Statement of Case can include documents, contracts or court pleadings. A Statement of Case assists the mediator in preparing for the meeting.
- The centre will ensure that Statements of Case and filed documents are exchanged between parties and the mediator, so that all parties and the mediator are fully informed.
The early exchange of information will assist in settlement. The mediator is likely to be interested in knowing:
- How did the dispute arise?
- Who are the relevant parties to the dispute?
- What are the key factual and legal issues?
- What are the important points of agreement and disagreement?
- Without reciting every action, what has occurred in the legal proceedings?
- Have the parties held any direct negotiations? If so, what was the last offer on each side and who made the last concession?
- What, in your opinion, has made it difficult to settle the dispute through direct bargaining? Are there non-legal concerns in the case?
- Is there any possibility of settlement without any monetary payment?
- Does either side need more information to mediate productively?
- What documents should the mediator review in advance? If the documents are lengthy, what parts are most relevant to your arguments?
- Are the parties authorised to agree to a settlement? If the party is one of the partners in a business, he must be authorised by his partner to make a decision on behalf of the business. If the business has more than one partner it is suggested that more than one, or even all the partners attend the conciliation or mediation.
- When it comes to the exchange of information it is important to ask yourself two questions:
- What information will be needed to make a good settlement decision?
- What information will persuade my opponent to agree to the terms I want?
- Once the Statement of Case and other documents are submitted it will be distributed to all other parties by the Case Management Officer (CMO).