Mexico Reaches an Important Milestone in Mediation
Source:
Daily Business Review
Date:
July 28, 2016
| |
DAIL Y BUSINESS REVIEW
JULY 28, 2016
Mexico Reaches an Important Milestone
in Mediation
Commentary by
Fernando Navarro
In early 2015, the Mexican
presidency assigned the Cen-
tro de Investigacion y Docencia
Economicas, a public research
and education institution, to
lead the Dialogues for Every-
day Justice. Its purpose is to
study, engage the participation
of different stakeholders and
ultimately generate a diagnosis
to improve access to justice and
the resolution of common and
everyday conflicts.
This effort resulted in a
package of reforms presented
by President Enrique Peña Nie-
to in April, which will be known
as a seminal event in Mexico’s
legislative history. These re-
forms attempt to reorient the
justice system toward an ap-
proach that promotes the reso-
lution of the conflicts in a more
practical and satisfactory way.
These reforms attempt to ad-
dress a wide range of disputes
including civil, commercial,
labor, family and other minor
conflicts like neighborhood or
school disputes. The package
also seeks to homogenize the
quality and characteristics of
justice administration services
all across Mexico.
The Everyday Justice package
includes 12 initiatives to alter
alia improve the public regis-
tries, trigger an improvement
in the regulatory framework,
standardize and restructure the
labor justice, civil and family
procedures as well as increase
access to alternative dispute
resolution. Two of the initia-
tives appear to be crucial for
the development of mediation
in Mexico.
CONSTITUTIONAL ADR
As part of the initiatives, the
president presented one that
opens the door for the creation
of a general alternative dispute
resolution law, or LGMASC for
its acronym in Spanish.
For decades, Mexico’s different
states have utilized varying
forms of ADR. There have been
differences in the form, scope
and rules that regulate the
practice and usage of ADR de-
pending on the particular cir-
cumstances and driving forces
behind each of those state laws,
resulting in a heterogeneous
and unequal map.
Beyond the black letter of the
law, mediation has played a
growing but not yet significant
role in the Mexican legal scene.
In spite of certain focused ef-
forts, mediation remains to be
a scarcely utilized resource by
individuals, companies and
lawyers as a dispute resolution
tool.
The formal purpose of the
constitutional reform, as per
the president’s own statements,
is to grant Congress the author-
ity to issue the LGMASC. From
the text of the initiative, the
final purposes of such reform
are to promote use and access
BOARD OF CONTRIBUTORSto ADR in a uniform way across
the country, to implement pro-
cedures in public institutions
allowing the growth of the use
of mediation without the need
for jurisdictional procedures
and to create a standardized
training for those public ser-
vants in charge of the use and
practice of ADR.
Judging by the text of the
initiative, in addition to what
is possible to pick up from the
different testimonials and news
media reports on the matter,
topics to be covered by the LG-
MASC in relation with media-
tion are the criteria to train and
requirements for certifying me-
diators, requirements for refer-
ring cases to mediation and the
effects of the agreement result-
ing from a mediation.
WHAT’S NEXT?
Congress will vote and approve
the reform to Article 73 of the
Federal Constitution to include
the possibility of issuing the LG-
MASC and afterward it shall is-
sue the LGMASC within 180 days
following the initiative.
In addition to the LGMASC,
the president’s package
includes a decree that seeks to
trigger the use of conciliation,
or mediation, for disputes be-
tween the public administra-
tion or public companies and
the private sector through the
publication of certain guide-
lines that aim to facilitate the
conciliation process while
protecting the state’s goods
and the public servants’ liabil-
ity. Since the purpose of this
decree is to guide the execu-
tive branch’s own institutions
and activities, its effects are
already in play without further
legislative work needed.
The referred guidelines open
the door to an increasing num-
ber of mediations or concili-
ations both under the public
or private umbrella, always
respecting the procedure ap-
proved by such decree and as
long as the agreement result-
ing from the mediation process
does not breach certain funda-
mental or confidential princi -
ples listed therein.
This is a very important mile-
stone for dispute resolution in
Mexico.
A large majority of the com-
mercial legal disputes in Mexico
involve at least one public or gov-
ernmental component: either a
dispute involving one of the two
largest companies, state-owned
like Pemex petroleum company
or the CFE electric power utility,
or one of the federal ministries
in charge of public works, proj-
ect financing, government pro -
curement and so on.
Even when some laws and
statutes provide for some sort of
ADR, in practice there are few oc-
casions when it actually happens.
It’s typically due to the lack of se-
curity for the officials and lack of
familiarity with the procedures
on both sides of the table.
With these guidelines, the
government and state-owned
company officials will hopefully
prioritize the use of mediation
to avoid a larger cost and cre-
ate policies that allow them to
settle when convenient or aim
to mitigate a financial or com -
mercial risk without risking
their own liability. It will also
hopefully allow for the develop-
ment and promotion of train-
ing programs for users to gain
more confidence when using
conciliation or mediation.
From every standpoint, the
coming months signify a mas-
sive transformation in the Mex-
ican legal environment and
notably a serious and solid step
forward for the use of media-
tion both in the public and pri-
vate sectors. It is crucial that all
the stakeholders be aware and
attentive of the evolution of the
implementation of the initia-
tives and that the legislators do
a good job on its development.
Fernando Navarro is a for-
mer JAMS Weinstein fellow and
consultant with JAMS in Mex-
ico. He is a practicing attorney
who has worked and trained to
promote and increase access
to arbitration and mediation in
Mexico. He can be reached at
fnavarro@jamsadr.com.
Reprinted with permission from the 7/28/16 edition of the DAILY BUSINESS REVIEW © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without
permission is prohibited. Contact: 877-257-3382 reprints@alm.com or visit www.almreprints.com. #100-08-16-07