1st Prize for the Best OHADA Article 2022 ( PME-OHADA-22-01 )

Cyril

1st Prize for the Best OHADA Article 2022 ( PME-OHADA-22-01 ) : The formalism in OHADA law of mediation : Between withdrawal and measurement

Par Cyrille Sèmako LIGAN TOBOSSI et Thierry Donald Abinibola

Résumé

If it is obviously constant that mediation in OHADA law is a flexible and attractive mode of amicable settlement of disputes, it is quite legitimate to wonder about the place that the Community legislator grants to formalism. Analysis of the Uniform Act relating to mediation (AUM) revealed, contrary to procedural prejudices, an ambivalent formalism in OHADA mediation. First of all, it is a formalism erased by a consensualism in the initiative of the implementation of the process since it is expressly provided that the mediation agreement can be "Written or not". Notwithstanding this provision, and in the absence of a mediation agreement, the elimination of formalism is mitigated by the requirement of a written invitation for the purposes of mediation. Ensuite, in the conduct of the process, the will of the parties takes precedence over the formal requirements. However, in the absence of expression of the will of the parties or in the event of disagreement, the editors of the AUM again appeal to formalism. The latter also concerns the mediator who, in compliance with the rules of the art, is subject to obligations, in particular that of disclosure, confirmation and confidentiality. Finally, at the end of the process and for the purpose of executing the mediation agreement, the editors of the AUM dedicate a formalist hieraticism to the charge of the actors (parties and mediator) and to third parties (homologating judge).

Key words

formalismemédiation – volonté – processusmédiateur – consensualism – written – différendrésolution.