Mediation in Tunisia: A Marginalized yet Essential Tool for Business Partnerships
Despite being widely recognized for its speed and low cost, mediation remains a marginal practice in Tunisia's legal landscape. The lack of specific legislation has hindered economic actors from embracing this essential tool for preserving business partnerships.
Recently, ICC Tunisia organized a thematic meeting at the headquarters of the Banking and Financial Council. Led by Samira Laouani, a specialized lawyer, the discussions focused on the International Chamber of Commerce's international mediation mechanism and its practical applications in resolving commercial disputes. The Arbitration and ADR Commission brought together several experts from both the private and public sectors.
Unlike traditional jurisdictional methods, mediation relies on the accompaniment of a neutral professional who facilitates exchange without making a decision. Zeineb Trabelsi Caid Essebsi, a trainer and practitioner, emphasized the fundamental aspect of mediation: the intervening third party creates the conditions for dialogue while respecting the absolute confidentiality of the exchanges. The parties involved retain control over the outcome of the dispute, whereas arbitration entrusts a private judge with the power to make a decision.
Mediation generates a mutually beneficial balance, even if asymmetric. Saida Chebili, director of the Tunisian Mediation Association, denounced the persistence of conceptual amalgams between conciliation and mediation. The conciliator formulates proposals to resolve the crisis and pursues reconciliation, whereas the mediator refrains from intervening in the substance of the matter and limits their role to structuring the exchanges.
This distinction remains unclear in Tunisia's national legal arsenal, where the terms are often confused. Aouatef Mzoughi, a lawyer, mediator, and journalist, highlighted the anticipatory dimension of tension treatment. A disagreement does not erupt simultaneously for each party, she recalled. The roots of the dispute often go beyond the simple non-execution of contractual commitments.
Ignored emails, unreturned phone calls, and conflictual meetings are all precursory signals. The intervention of a qualified third party allows for the diagnosis of these failures and the transformation of the dispute into a lever for organizational optimization.
The International Institutional Framework
Alya Ladjimi, ADR counselor at the CCI Paris, presented the characteristics of the system proposed by this global institution. Between 2021 and 2025, the treated cases mainly concerned high-intensity financial conflicts, concentrated in the infrastructure and energy sectors. The disputed amounts averaged $75 million, with mediation costs averaging $33,600, representing a ratio of 0.04% of the contested sum. The procedure usually ends in less than three months.
When the parties agree to meet with the designated mediator, the success rate exceeds 50%. The client base comes primarily from Europe and the United States, which have a marked cultural appetite for transactional settlement. Several governments and public entities from Africa, the Middle East, Europe, and America also use this mechanism.
Temporal Adaptability
Mediation can be inserted at any point in the dispute chronology. Some multinationals integrate specific clauses into their general commercial conditions. Others opt for this approach during a judicial or arbitration procedure, or even after a sentence has been pronounced to ensure its effective application.
In some European states, the prior obligation to use this mechanism is imposed before any contentious seizure in commercial matters. Failure to comply with a contractual clause exposes the parties to procedural consequences: suspension of arbitration or incompetence of the arbitration tribunal.
Strategic Dividends for Economic Actors
Beyond dispute resolution, this approach saves business relationships, a crucial element for the continuity of activities. Aouatef Mzoughi emphasized that a forced execution obtained after a prolonged dispute often leads to a definitive break with the client or partner.
The flexibility of the process allows for innovative arrangements calibrated to the true interests of the parties, whereas the magistrate or arbitrator rigidly applies the rules of law.
The Position of Tunisian Authorities
Amira Klai, director general of international investment conventions and disputes at the Ministry of Economy and Planning, explained that the chosen option for resolving disputes results from negotiation and varies according to the interlocutor, strategic stake, and contractual nature.
Mediation is now among the instruments provided for in the African Continental Free Trade Area agreement, although it has not yet produced legal effects.
For public institutions, attractiveness relies on two factors: time gain and financial economy. Quickly resolving disputes at a controlled cost is an imperative necessity in a constrained budget environment.
The reputation of an ecosystem conducive to consensual settlement also enhances territorial attractiveness for investors.
The Imperative of Normative Framework
In Tunisia, the absence of dedicated legislative text does not constitute a legal obstacle to practice. Zeineb Trabelsi Caid Essebsi recalled the fundamental adage: what the law does not prohibit is authorized.
Conventional mediation, decided by prior or subsequent agreement to the emergence of the dispute, remains fully licit. Companies can insert ad hoc contractual provisions or propose this channel once the dispute has crystallized.
This practice requires a transformation of mentalities among legal advisors and business leaders, who must understand the virtues of the instrument.
Saida Chebili advocated for the urgency of clear legislative definition to dispel terminological ambiguities and lift the hesitations of economic and judicial actors.
The legislator must establish a reassuring foundation allowing all sectors to resort to it with confidence.
Invisible Costs of Unresolved Tensions
The speakers highlighted the hidden economic impact of conflicts on organizations. European research reveals that employees spend approximately one week per month managing internal friction, to the detriment of their productivity.
Unresolved tensions also degrade the reputation and competitiveness of structures. Recommendations include training legal departments and leaders, integrating model clauses into contracts, and developing a charter for dispute treatment.
The International Chamber of Commerce provides free access to several supporting documents. The settlement itself comprises only ten articles, reflecting the intrinsic flexibility of the process.
Two guides published in 2023 are noteworthy. The first provides tools for facilitating the amicable settlement of disputes during arbitration, with advice addressed to both arbitrators and parties. The second, titled Effective Conflict Management, details the services and mechanisms proposed by the institution, illustrated with concrete examples while preserving the confidentiality of treated cases.
Information and training appear as priority levers for anchoring the culture of mediation in Tunisia. Saida Chebili invited companies to integrate this tool into their risk management immediately, without waiting for a law whose adoption should not be delayed, according to the speakers.
The British model, where practice developed empirically before any codification, demonstrates that professional experience can precede and feed the development of the normative framework.
Tunisia's experimental approach, both local and international, could thus lead to legislation adjusted to the concrete needs of the national economic fabric.
