Amicable Agreement Contractadmin
Arbitration, conciliation, mediation and settlement procedures include alternative means of dispute resolution; However, they do not have the same scope. CONCILIATION is the agreement by which two persons who disagree settle their dispute (either by a settlement or by unilateral or reciprocal waiver of a claim), the settlement of the dispute is not the result of a legal decision (or that of an arbitrator), but of an agreement between the parties themselves. Conciliation may be envisaged only in uncontested cases and in the absence of an agreement or an attempt to reach an agreement. Conciliation may take place either between the two or with the help of a third party. The Code of Civil Procedure stipulates that “the judge has the responsibility to reconcile the parties” (art. 21). This is called legal conciliation. Decree No. 78-381 of 20 March 1978 established legal conciliators.
Mediation is another means of dispute resolution, which consists in the person chosen by the opponents (mainly because of his personal authority) proposing to that party a solution without seeking to bring it closer together, unlike conciliation, but without having the power to impose it as a legal decision, unlike arbitration and the decision of a state court. It is important to distinguish between conventional mediation, organized by each party solely on the basis of its will, and legal mediation. This mediation follows a text that provides that the judge who, once the dispute has broken out, proposes to each party this way to solve this problem. The transaction is the contract by which the parties to the dispute (already judged or simply between them) resolve it amicably through reciprocal concessions. In accordance with Article 2044 of the Civil Code, the transaction is a contract by which the parties can settle a real dispute or prevent a future dispute. This contract must be in writing. Arbitration is an amicable, peaceful and legal procedure for the settlement of a dispute by a competent authority (arbitrator) empowered to judge not by a permanent state delegation or an international institution, but by agreement between the parties (which may be individuals or states). When negotiating a trade agreement, the parties are free to decide whether or not to include an ADR clause.
The parties` efforts to settle are commensurate with their interests. These are consultations that can range from minimal communication to structured dialogue processes involving their own legal and technical experts. Sometimes the parties instruct mediators or moderators to help them organize dialogue processes and to control them as neutrals. In Emirates Trading Agency vs. Prime Mineral Exports , a contract provided that in the event of a dispute, the parties should first attempt to resolve the issue through a “friendly discussion”. The application of Itex Shipping and Walford may have led to the conclusion that the requirement for Emirates Trading to settle a dispute through a “friendly discussion” was not applicable, nor was Itex Shipping`s requirement to settle a dispute amicably. Teare J., however, considered that “friendly discussions” were a condition precedent of the right to refer a claim to arbitration when Teare J. largely took up the arguments in the Australian case of United Group Rail Services against Rail Corporation New South Wales . . .