Since Law no. 38-15 on judicial organisation came into force in 2023, a Moroccan judge may invite the parties before them to resolve their dispute through conciliation or conventional mediation, in any case where the law does not prohibit it. For companies accustomed to treating litigation as a one-way corridor, the invitation can be disorienting. It should not be.
The invitation is not a judgment on your case
The first instinct of a claimant who believes their position is strong is to read the invitation as scepticism from the bench. In most matters it is nothing of the sort. The court is exercising a case-management power, and the considerations behind it — docket pressure, the nature of the relationship between the parties, the likelihood that a judgment will resolve the underlying commercial problem — are largely independent of the merits.
What accepting actually commits you to
Very little, and that is the point most parties miss. Conventional mediation commits you to a process, not to an outcome. The mediator has no power to impose a solution, and none to propose one. The proceedings remain suspended rather than abandoned. If the mediation does not produce an agreement, you return to the court in the position you left it.
The party who has nothing to gain from talking has usually not finished working out what they want.
What declining signals
Nothing formal. A refusal cannot be held against a party in the decision on the merits. But it is worth being candid about the practical reading: a party who declines an invitation in a matter with an ongoing commercial relationship at stake is telling the counterparty something about how it intends to conduct itself. That message travels beyond the file.
Three questions before answering
- Does the relationship with the counterparty have value beyond this dispute?
- Is the remedy you are seeking one a court can actually give you?
- Would a confidential resolution be worth more than a public judgment?
Where two of the three answers are yes, accepting is usually the commercially sounder move, whatever the strength of the pleading.