Dakar, Jan 6 (APS) – Private law professor Ndiaw Diouf, former dean of the law faculty at Cheikh-Anta-Diop University in Dakar, notes a large lack of awareness of alternative dispute resolution methods in Senegal and judges necessary to create a pool of arbitrators and mediators approved by arbitration centers.
Mr. Diouf and the APS spoke on this subject, following training that the academic provided, with other experts in mediation and arbitration, in December, in Dakar.
Professor, what were the objectives of the training you provided in Dakar on alternative dispute resolution methods?
These training sessions must be placed in their context. There was a European Union project aimed at strengthening arbitration structures and mechanisms in Senegal. In this project, it was planned to popularize alternative methods of dispute resolution, namely arbitration, mediation and conciliation. It was necessary to popularize these alternative methods of dispute resolution so that the Senegalese could make them their own. This is why we organized a training session for economic journalists and held public information meetings in several regions of Senegal […] Our mission was to ensure that the Senegalese become more familiar with these alternative methods of dispute resolution.
But there was more than just popularization to be done. There was also the training of a pool of arbitrators and mediators. There are arbitration centers and mediation centers. I am thinking, for example, of the National Mediation and Conciliation Committee.
Arbitrators and mediators must be trained. Our first objective, for this training session, was the training of a pool of arbitrators and mediators with a view to their approval by these centers. We should perhaps return to the notion of alternative dispute resolution. Justice has always been considered a state affair. When a conflict arises between two people, it is submitted to state courts, which render enforceable decisions. But due to the congestion in these jurisdictions, it was necessary to find bypass circuits. This is called alternative dispute resolution. There are two.
Which ones? What can they achieve (as results)?
You have arbitration on one side, and what we call mediation and conciliation on the other. In arbitration we have a private judge. A judge who is invested, not by the State, but by the parties. He’s a referee. Therefore, there is always an agreement of the parties as a basis for arbitration. This is called the arbitration agreement. It’s a compromise. In a dispute, the parties decide to go to arbitration. There is what is called the arbitration clause of the parties: before the dispute, the parties insert into a contract a clause by which they undertake to go to arbitration in the event that there are difficulties of interpretation or execution of the contract.
The referee is a judge. He settles the dispute, within the framework of an arbitration award… As does the state judge. A sentence with the authority of res judicata.
On the other hand, in mediation and conciliation, it is the parties themselves who find a solution within the framework of a mediation agreement. They reach an agreement with the help of a third party, called a mediator or conciliator. Traditionally, mediation and conciliation were distinguished depending on whether the role of the third party was more or less active. But here, it is the parties who reach an agreement with the support of the third party called a mediator or conciliator.
-What will result from mediation or conciliation is a mediation agreement. In arbitration, it is an award.
As I said earlier, it was a popularization mission. These conflict resolution mechanisms, which are not well known to the Senegalese, must be brought to the attention of the Senegalese. I believe that economic journalists are the best people to support this popularization mission. This is why we felt the need to train economic journalists.
There are texts [qui encadrent les modes alternatifs de règlement des différends]. These are essentially those of OHADA, the Organization for the Harmonization of Business Law in Africa… You have, in the treaty relating to the harmonization of business law in Africa, stipulations devoted to arbitration. But it is arbitration within the framework of the Common Court of Justice and Arbitration. You then have what is called the uniform act relating to the law of arbitration… In the 17 States parties to the OHADA treaty, it is this uniform act relating to the law of arbitration which serves as law on arbitration…
Are mediation and arbitration professions in their own right?
We always need to increase the pool of arbitrators and mediators and conciliators. This is why we felt this need to train referees who will be approved by these centers. To train mediators and conciliators who can be approved in the different centers. It must be said that there is no sector dedicated to arbitration, mediation or conciliation. Rather, it is teaching units in traditional training. You can have a teaching unit on refereeing. But there is no sector specifically reserved for the training of arbitrators or mediators. Now, there are private higher education establishments which provide certification training in arbitration. For example, there is [une] school of law, management and economics […] Who [délivre] a certificate attesting to the training of arbitrators and mediators. Mediator and arbitrator are not professions. These are qualifications.
Someone cannot say that they are a professional arbitrator or mediator. We are qualified to do arbitration or mediation.
The mediator, like the arbitrator, is a person occasionally entrusted with the mission of deciding or helping to decide or resolve disputes. He doesn’t make a career out of it. I, for example, sometimes do arbitration for the CCGA (a consultative commission created within the Ministry of Finance and Budget)…
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