The most common and usual way to resolve conflicts is through the ordinary courts of justice; however, there are alternative ways to the judicial function that can be used to resolve disputes, such as MEDIATION.
In Ecuador, the Constitution has instituted mediation by stating in its Art. 190: “Arbitration, mediation and other alternative procedures for the solution of conflicts are recognized. These procedures shall be applied subject to the law, in matters in which by their nature can be compromised...”.
Similarly, Art. 97 of the Magna Carta states: “All organizations may develop alternative forms of mediation and conflict resolution, in cases permitted by law.....”.
The Arbitration and Mediation Law enacted on September 4, 1997 defines mediation as: “Mediation is a dispute resolution procedure whereby the parties, assisted by a neutral third party called a mediator, seek a voluntary agreement, which deals with a matter subject to compromise, of an extrajudicial and definitive nature, which puts an end to the conflict”.
Therefore, mediation has become in our country a legal way to solve, provided that there is an express will of the parties to submit to it, a wide variety of conflicts, from which only those whose object of litigation or controversy cannot be susceptible to transaction are excepted.
Characteristics of Mediation
Mediation is a process or method of conflict resolution, in which the main parties and/or their representatives, with the assistance of an impartial third party, the mediator, manage by themselves, through discussion and negotiation, to reach mutually satisfactory agreements.
Advantages of Mediation
The main advantages of mediation include the following:
Flexible: The circumstances and the parties involved in the conflict allow the mediation to be carried out with a greater or lesser degree of formality, for example, in a conflict of a business nature between businessmen a formal procedure is recommended; but in community or family conflicts the procedure may be less formal.
Voluntary: The parties to the conflict are the ones who decide how to conduct the mediation, providing the information they want to be known or not, proposing partial or total solutions; in short, they are the ones who have the freedom to reach a solution of their own free will and not by imposition of anyone.
Fast: Mediation is a much faster process than court litigation, as the conflict can be resolved in a matter of days and, in some cases, even hours. It can begin at any time, as soon as the parties agree to mediation and a schedule of meetings can be set at their convenience.
Produces creative agreements: One of the most important qualities of the mediator is creativity, and this aspect is essential to encourage the parties to reach creative agreements that allow them to solve the conflict and prevent future relationships.
Use simple language: It is important for the mediator to use simple and clear language and to get the parties to explain what they really want, which in most cases favors agreement.
It allows to find “common sense” solutions: Mediation is not limited to legal precedents, which does not mean that they are not taken into account. It allows the parties to adjust their different perceptions and claims so that they are more realistic.
Role of the Mediator
One of the most prestigious academic institutions in the United States in the teaching of ADR, the Institute for Dispute Resolution, Pepperdine University, California, in its mediation training program, establishes as basic tasks of the mediator:
- Control the process, using appropriate tactics.
- Record the negotiation history of each case.
- Ensure that the parties are authorized to negotiate and adopt agreements.
- Verify the reality of the facts alleged by the parties.
- Determine a space or area in which the agreement would be possible.
- Review the advantages of the agreement, in terms of certainty, immediacy, economy, privacy and control of its execution.
Mediation in Ecuador, as an alternative means of conflict resolution, is not a new concept, however, it is necessary to continue with the work of dissemination and strengthening to promote its use, and above all, to achieve its adaptation to the needs of our society, which demands new strategies to ensure an agile, peaceful and effective solution to their disputes.
Mediation can and should also fulfill various functions, such as managing and/or resolving conflicts, negotiating contracts, and/or preventing future conflict situations.
