In addition to its institutional arbitration framework, MARC also provides an efficient institutional mediation framework.
Advantages of mediation include that it takes usually less time than arbitration or litigation and involves lower costs. Moreover, the process enables parties to reach an agreement on solutions which could not be achieved through an adjudicative process such as arbitration or litigation and which would not therefore be available through the making of an arbitral award or a judicial decision. For example, the parties’ preferred solution to a contractual dispute may be to renegotiate the terms of the contract. The renegotiation of a contract is possible in mediation, whereas it is unlikely to be any legal basis for seeking such relief in arbitration or litigation.
Whilst the adjudicative processes focus on the parties’ legal rights, mediation helps parties also to take into consideration commercial and other interests. The mediation process can help parties acquire a better understanding of each other’s needs and interests so that they can look for a solution which accommodates these needs and interests as far as possible. Mediation can be a particularly useful tool when the parties in dispute have an on-going relationship (such as a joint venture or long-term supply contract).
Who can use MARC Mediation?
Anyone can use MARC Mediation, whether a company, government, state entity, international organization or individual. It is not necessary to be an MCCI member or to have any other affiliation with MCCI. MARC Mediations are administered by the MARC Permanent Secretariat pursuant to the MARC Mediation Rules. The Centre is the only body empowered to administer proceedings under those Rules. Choosing MARC Mediation is choosing an efficient dispute resolution mechanism.
The MARC mediation process is a response to real needs in the business world. Business partners are more and more conscious of the importance of preserving business relationships and of defusing conflicts before they worsen. The focus on restoring dialogue and working towards win-win solutions improve chances of continued business relationships.
The MARC 'Rules of Ethics for Mediators' provide secrecy and confidentiality provisions whereby the mediator is bound by a duty of secrecy as regards the dispute entrusted to him or her, both with regard to its existence and to all other aspects of the mediation.
The mediator's duty of secrecy is general, absolute, and unlimited in time, and the mediator may be released from it only under the conditions prescribed by law.
When using MARC Mediation, parties don’t need to negotiate fees and expense reimbursement directly with the mediator. Instead, this will be done by the Centre. The Centre will also ensure that the Mediator’s time and expenses spent are reasonable and monitored.
The MARC Mediation Rules are inherently flexible and can be adapted to the parties’ needs. They leave the parties the liberty to tailor the mediation process exactly to their wishes and the circumstances of the specific case, while providing them with a secure procedural frame.
Often dispute resolution clauses will foresee a combined procedure, providing mediation in a first step and arbitration in the second step. In other cases, parties might wish to conduct both proceedings in parallel or to try to solve a dispute by mediation in the course of an ongoing arbitration. Many parties wish both proceedings to be conducted and administered by the same institution. To facilitate such combination, MARC also offers a 'med-arb' clause providing for combined dispute resolution proceedings.
In mediation, the parties remain in control of the outcome. They can influence the final agreement and ensure that their main interests are taken into account. If they are not satisfied with the final agreement, nobody can force a party to accept it.
When the parties have no prior agreement to mediate, one party can suggest the use of mediation to the other side by filing a Request for Mediation with the MARC pursuant to Article 1 of the MARC Mediation Rules. The Centre can then assist the parties in coming to an agreement as to whether their dispute should be submitted to mediation. The Centre’s role in convening the parties is important in order to allow both parties to take an informed decision.
MARC Mediation Rules aim both to respect the parties' freedom, without which the mediation cannot attain its desired object, and to give full latitude to the mediator to assist the parties throughout the process. However, it is necessary to recall that the legitimacy of the mediator relies wholly on the trust placed in him or her by the parties. This is the reason why MARC calls for mediators who are trained in the technicalities of mediation and whose professional competence and negotiation skills are recognized. In choosing the mediator, MARC will consider the nature of the dispute and any preferred choice as expressed by the parties.
Each case filed with MARC is managed, supervised and monitored by the MARC Permanent Secretariat and following procedural rules established in partnership with the Center de Mediation et d'Arbitrage de Paris (CMAP). Case management is tailored to the needs and wishes of the parties in the specific case and is always aimed at ensuring that everyone involved in the process has all necessary information about the Rules and the conduct of the mediation proceedings to be able to participate efficiently.
As the ADR arm of the MCCI, MARC has a regional and international outreach unmatched by any other institution. Its network includes 9000 Chambers of Commerce and Industry across the world as well as the most important ADR centers, namely the American Arbitration Association, the Centre de Mediation et d 'Arbitrage de Paris, the Australian Center for International Commercial Arbitration, the Indian Council of Arbitration and the Arbitration Foundation of South Africa.
It participates actively in the national and regional development of ADR methods in collaboration with regional organisations such as the Indian Ocean Commission and the Union of Chambers of Commerce and Industry of the Indian Ocean Islands. Through its Commission for Strategy and Development, it also strives for excellence in the field of ADR through continuous consultation work with the legal and business community of Mauritius and of foreign country partners.