The Culture of Peace, Mediation and Access to Justice II

“Justice delayed is justice denied.”

William E. Gladstone

In our previous article, we pointed out that we are all obliged to avoid the collapse of courts, tribunals, and courtrooms, since with the replacement of ministers, magistrates, and judges and the very likely replacement of specialized personnel with judicial careers, such as account secretaries, court clerks, and acting secretaries, among others, by personnel lacking training and experience in the administration of justice, various phases of adaptation and learning will be essential, requiring months or years, which will result in the impossibility of administering justice quickly, efficiently, and without obstacles.

Legal disputes will continue unabated; the backlog and accumulation of cases will increase, testing the response capacity of courts, tribunals, and tribunals. For example, the clerks responsible for issuing court summons, executing court orders, and conducting personal service will find it difficult to handle the backlog of cases, plus those that accumulate due to changes.

In compliance with the provisions of Article 17 of the Constitution and to contribute to timely access to justice, enabling the implementation of judicial reform with the least possible impact on citizens, we insist on strengthening and making greater use of mediation and other appropriate (alternative) dispute resolution mechanisms (ADRs).

Mediation is a means of accessing justice in legal disputes; it is a means—perhaps the best, if not the only, way—to prevent, manage, and resolve conflicts without resorting to strictly judicial means or as a prerequisite to their exhaustion.

Let's recall some of the benefits of mediation: for example, it's never assumed to be a zero-sum game, where one wins everything and the other loses everything, as if it were a game of chess. No, mediation invokes a positive-sum solution that allows each party to obtain satisfaction in the fair and proportional measure of the case, according to the definitions proposed and accepted by those involved. Collaboration between the parties, with the support of a mediator, allows them to build the agreements that suit them best. It's not a judge or arbitrator who makes the decisions; it's a completely democratic path to justice for preventing, managing, and resolving disputes.

These characteristics represent, in addition to moving away from traditional paradigms that encourage litigation as the sole mechanism for resolving conflicts, a real possibility for the judiciary to avoid a cataclysm caused by the turnover of judges and qualified personnel resulting from judicial reform.

Since 2008, with the reform to Article 17 of the Constitution, the possibility of individuals resolving their disputes without authorities was established, as a complementary mechanism to the ordinary justice system. However, the adoption of ADR for legal disputes and the creation of alternative justice centers or institutes in the states had already begun in 1997.

Since its inception, the use of mediation services for the management, prevention, and resolution of legal disputes has expanded to include a variety of areas. Currently, the main services offered include family mediation, civil mediation, commercial mediation, criminal mediation, and mediation in the court system for adolescents.

Now, since January 2024, we have the General Law on Alternative Dispute Resolution Mechanisms (LGMASC), which is far from being the expected culmination of the regulatory framework of the Mexican mediation system. It addresses issues that do not correspond to a general law nor does it address what the Constitution mandates in its article 73, section XXIX-A. Far from establishing unity of criteria and minimum standards on mediation and conciliation in the country, it restricts and bureaucratizes self-constituted justice, thereby affecting users of mediation and conciliation. It is also clear that it has been ignored that mediation has been the ADR that has had the greatest development and practical application within the Ibero-American countries, with Mexico and Argentina being its greatest exponents.

For this reason, we have proposed a comprehensive review of the LGMASC (Spanish Law on the Protection of Mediation and Other AML/CML) to reform it with the goal of freeing mediation and other AML/CML from a procedural culture; restoring the role of the mediator; reincorporating the principle of "economy," which can be found in international regulations and appeared in local Mexican legislation on the matter. This principle pursues trust through simplicity and freedom in determining procedures, in response to the need for the process to be carried out in a comprehensible, efficient, and rapid manner, while ensuring legal certainty; eliminating issues that fall under the jurisdiction of local legislatures, such as those related to public property registries and notary services; and eliminating the amendment that effectively makes the "anti-money laundering law" a legal instrument that only refers to vulnerable activities expressly provided for in said provision, such as notary services provided by notaries and public brokers, not by mediators or conciliators, among other issues.

As we have discussed on other occasions, it would also be advisable to amend Article 17 of the Constitution so that, as a prerequisite to a trial, the parties in conflict participate in a pre-mediation session or an information session regarding other MASC, using as a model the provisions of Section A of Article 123 of the Constitution regarding labor conciliation.

The consolidation and expansion of mediation services and other MASC coverage will promote a dejudicialization of the management and resolution of legal conflicts, which will result in a streamlined use of jurisdictional services provided by federal and local judges.

It should be noted that most legal disputes arise at the local level, where conflicts of so-called everyday justice are heard.

* The author is a lawyer, negotiator and mediator.

X: @Phmergoldd

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