The Situation: In November 2017, 17 states of sub-Saharan Africa adopted the Uniform Act on Mediation.
The Result: The practice of mediation, although it already has legislative support in Burkina Faso, Ivory Coast, and Senegal, will be substantially expanded in the region with the OHADA states' adoption of the Uniform Act on Mediation.
Looking Ahead: Will the new mediation act enhance the security of doing business and facilitate alternative dispute resolution in sub-Saharan Africa?
In many parts of the world, mediation has become a strong tool for achieving the resolution of commercial disputes. It derives from the ancient tradition of palaver ("la palabre"), which is well known on the African continent. In modern business transactions, in particular long-term contracts, mediation has become part of a "package" to which parties agree in order to attempt to reach a solution early on and prevent a conflict from escalating to the point of arbitration or litigation in court. As such, parties agree on multi-tier dispute resolution clauses, providing for recourse to mediation as the first step in the avoidance of conflict, often as a prerequisite to proceeding to arbitration or litigation.
Mediation in the OHADA Region
The Organization for the Harmonization of Business Law in Africa ("OHADA") is an international organization based in Yaoundé, Cameroun. It is made up of 17 states from mostly Central and Western Africa with a total population of about 200 million inhabitants.
Three of these OHADA statesBurkina Faso, Ivory Coast and Senegalare quite familiar with mediation, having recognized its importance as an alternative dispute resolution mechanism by adopting their own national mediation laws a few years ago. The arbitration centers of Burkina Faso (CAM-CO) and the Ivory Coast (CACI) have their own mediation rules in addition to the arbitration rules of their institutions. One of the challenges faced by those institutions remains the training of qualified mediators and gaining a better understanding by local business partners, including from the prevalent public sector, of the benefits of mediation.
In conjunction with its adoption of the Uniform Mediation Act, OHADA also reformed its uniform arbitration law, which was first created in 1999 (see Jones Day Commentary, "Revised Uniform Act Brings Major Innovations for Sub-Saharan OHADA Member States"). By uniformizing the arbitration and mediation frameworks for the OHADA region, the...