Can I choose mediation instead of arbitration for a supplier dispute in DR Congo, and what happens if mediation fails to resolve it?

Hi

In the Democratic Republic of Congo (DRC), commercial disputes are governed by the OHADA (Organization for the Harmonization of Business Law in Africa) framework, which the DRC joined in 2012. Under this legal system, you have significant flexibility in how you resolve supplier disputes.

Choosing Mediation over Arbitration

You can absolutely choose mediation instead of arbitration, even if your contract initially mentions arbitration. Under the OHADA Uniform Act on Mediation (UAM), mediation is highly encouraged as a flexible, amicable first step.

• Voluntary Agreement: If both parties agree to seek an amicable settlement, you can enter mediation at any time.


• Contractual Clauses: If your contract has a "multi-tiered" dispute resolution clause (e.g., "the parties shall first attempt mediation before proceeding to arbitration"), you are generally required to attempt mediation first.


• Confidentiality: A key benefit in the DRC/OHADA context is that mediation is strictly confidential. Statements made during the process cannot be used against you in later court or arbitration proceedings.

What happens if Mediation fails?

If mediation does not result in a signed settlement agreement, the process ends without a binding resolution.

• Right to Arbitrate or Litigate: You do not lose your right to pursue other legal avenues. If mediation fails, you can proceed to arbitration (if provided for in your contract) or file a lawsuit in the Commercial Courts of Kinshasa.


• Non-Binding Nature: Unlike an arbitrator's award, a mediator cannot impose a decision. If you don't reach a consensus, the dispute remains unresolved until a higher authority (arbitrator or judge) rules on it.


• Enforcement of Successful Mediation: If mediation is successful, the resulting "Settlement Agreement" can be made legally binding and enforceable (similar to a court judgment) through a process called exequatur by a Congolese judge.

Costs and Timelines

• Timelines: Mediation is significantly faster than arbitration or litigation. A typical mediation in Kinshasa might take 1 to 3 months, whereas arbitration often takes 6 to 12 months, and court litigation can drag on for years due to backlogs.


• Costs: Mediation is generally the most cost-effective option. You typically pay a mediator's fee (often split between parties) and administrative fees if using a center. Arbitration involves much higher fees for a panel of arbitrators, legal counsel, and administrative costs.

Pursuing Arbitration later

Yes, you can pursue arbitration later if mediation fails, provided that:

1. Your original contract contains an arbitration clause.


2. Or, both parties agree to sign a "submission agreement" (compromis) to go to arbitration after the dispute has already arisen.

The OHADA Uniform Act on Arbitration (UAA) ensures that if you have a valid arbitration agreement, the national courts in Kinshasa must stay any court proceedings and refer the parties to arbitration.

Thanks