By Alicia Santillán Gutiérrez
On the occasion of the presentation of the DRAFT REFORMING LAW TO THE LAW ON ARBITRATION AND MEDIATION, on April 7, 2021, it is necessary to clarify certain premises of fundamental concepts in the field of alternative dispute resolution methods in the arena:
In the first instance, the concept of voluntariness of the parties must be taken into account, beyond the provisions of the current Art. 43 of the Arbitration and Mediation Law in force, which establishes:
“Mediation is a dispute resolution procedure by which the parties, assisted by a neutral third party called mediator, seek a voluntary agreement, which deals with a matter that is negotiable, extrajudicial and definitive, which puts an end to the conflict”.
In the bill presented for the respective reform of the LAM (Arbitration and Mediation Law), the so-called procedural requirement is established as follows: “Prior to initiating a judicial process in non-criminal matters, in which by its nature it is possible to reach a compromise, the parties must submit to a mediation procedure before a duly authorized public or private mediation center, in order to seek a solution to the conflict that affects them. This requirement does not infringe upon the principle of voluntariness of the parties, since they are the ones who will voluntarily reach agreements in the mediation space”.
In the first instance, it should be noted that voluntariness is linked to the agreement reached by the parties with the help of the mediator, which puts an end to the conflict. But it is important to remember the doctrine on mediation, which understands the principle of voluntariness as that which implies that all the parties involved in a mediation process have the absolute will to decide whether they wish to take this path or not. In other words, the principle of voluntariness originates long before even sitting down at the mediation table. The parties must first decide to opt for the mediation process rather than any other mechanism, including the judicial instance. This is a small detail that the bill forgets.
On the other hand, the bill obliges the parties to submit to a “mediation procedure” prior to initiating a judicial process, which makes no sense since the will of the parties is the prevailing basis for mediation.
What can be intuited, is that the reform wanted to point towards the option taken by Spain in 2019, when this country wanted to implement mediation as a complementary procedure to the judicial process. This law established a model of “mitigated obligatory nature”, by which the parties are obliged to attend an “informative and exploratory session” with the purpose that a qualified mediator, performs an exploration of the subject of the controversy, the positions in first instance of the parties in conflict; and, the dynamics of a mediation process, in the case that the parties, after this analysis with the mediator, decide to continue with a mediation process.
In the case of Spain, this model is only applicable to civil and commercial matters. In addition, it is limited to fourteen specific cases within these matters. This helped to decongest the courts since many of the potential litigants, after the mandatory exploratory sessions, opted for mediation on a voluntary basis, as a result of knowing, first hand and by a specialist in the field, the benefits of mediation: legal strength, agility, savings (money, time, emotional wear and tear) and confidentiality.
The Ecuadorian bill also contemplates the following in its Art. 10 “Non-attendance to the mediation hearing. - Except in labor and family matters, in cases where the procedural requirement is intended to be fulfilled or by judicial derivation, if the parties or any of them do not appear at the mediation hearing to which they were invited and do not justify their non-attendance, their conduct may be considered as serious evidence against their pretensions or their exceptions of merit in the judicial process that deals with the same facts”. This unjustifiably and without legal or doctrinal basis punishes the expression of will not to accept the mediation process.
In conclusion, it is necessary to consider which is the most suitable way to encourage the use of alternative dispute resolution methods in order to decongest the judicial system, but without forgetting the fundamental bases that give rise to these alternatives, since choosing the wrong path could be counterproductive, however laudable the intentions behind it may be.
A good option is to educate about the benefits of ADR to all levels of society, starting with: judges, lawyers, businessmen, entrepreneurs, university students, unions in general; and to raise awareness about how opting for such mechanisms can help to decongest the judicial function and contribute to achieve the long-awaited justice.
