Laws are like sausages. You sleep much better the less you know how they are made.
Otto von Bismark
In the first place, it is curious that the adjective “national” has been adopted to denote laws or codes of a federal nature, a legislative fashion that was applied to the name of the following provisions: National Code of Criminal Procedures; National Law of Penal Execution; National Domain Forfeiture Law; National Law on Alternative Dispute Resolution Mechanisms in Criminal Matters; National Law of the Record of Detentions; National Law of the Comprehensive Criminal Justice System for Adolescents; National Law on the Use of Force and the imminent National Code of Civil and Family Procedures. It was not taken into account that all legislative provisions, be they codes or local, federal and general laws, are national, not from another country.
There is a growing use of alternative dispute resolution mechanisms, especially mediation, which has led to its application being extended to practically all areas of social interaction, since the management, prevention and solution of all conflicts or disputes is possible. with mediation, this tendency is universal, although in Mexico there are still some obstacles.
It was announced that the sixth initiative of the National Code of Civil and Family Procedures will be submitted to the joint commissions of Justice and Legislative Studies of the Senate for a vote today.
The proposals contained in said initiative include various topics that will surely mean an advance in procedural law. We trust that when the National Code mentioned above comes into force, the procedural culture characterized by addressing formal issues and leaving aside —and therefore unresolved— the controversy actually raised, both in the administration of justice and in the practice of law and legal defense in our country.
Regarding the use of peaceful means of dispute resolution, the explanatory memorandum for the Code initiative states that the benefits of alternative justice would be considered in the system of administration of justice in civil and family matters.
Indeed, there are various articles that give access to peaceful dispute resolution mechanisms, which means progress in the matter. Article 3 of the Code that we are discussing, part of the First Book, First Title “General Provisions”, orders that in the system of administration of justice in civil and family matters, the benefits of alternative justice or conventional procedures agreed upon by the parties and in accordance with the provisions of that National Code. It does not include criteria or assumptions for the judge to consider, nor does it refer to the General Law of Alternative Dispute Resolution Mechanisms (LGMASC) for its application and to take full advantage of the aforementioned mechanisms and their advantages over formal judicial procedures and litigation. . It is true that the LGMASC does not yet exist, but given the constitutional obligation that it be issued and the full entry into force of the Code within a period of eight years, they allow us to assume that the aforementioned law will exist shortly.
For greater precision, it is considered that the concept of alternative justice, mediation or peaceful dispute resolution mechanisms should have been included in article 2 as part of the Code’s glossary.
It must be recognized that it is a success that the Code commented, in its Ninth Book, “Of the Judgment, Enforcement and its Execution” in its Chapter V “Of the Execution of the Judgment and other Resolutions of the Jurisdictional Authorities of the Entities Federal Entities” expressly provides, in particular in article 974, that the agreement entered into in the mediation procedure at the corresponding Center for Alternative Justice in the Federative Entities is considered res judicata, as well as that resulting from community mediation, and in Other cases that the law provides. This provision gives a letter of naturalization to that characteristic of the mediation agreement throughout the country. Until now, only in the local legislation of 23 federal entities is it so considered. This is an important step towards standardizing criteria in mediation.
Regarding arbitration -which is not part of autocompositive or consensual justice-, the Code dedicates its Third Title “On Arbitral Judgment” of the Third Book, in which the right of the parties to submit their disputes to arbitration is recognized.
It is important to identify and clarify that justice, from its roots, has divided into two branches: on the one hand, in heterocompositive or adversarial justice, in charge of courts, judges, and arbitrators; and on the other, in self-composed or consensual justice, in charge of the people involved in a conflict or controversy who, in order to manage, resolve or prevent it, have the support of qualified professionals, mainly mediators.
In October 2022, the president of the Senate Justice Commission declared that both initiatives would be harmonized so that, taking advantage of mediation, legal controversies that arise in civil and family matters could be resolved in depth, today we can see imminent progress in the matter.
Those of us who know the subject are committed to mediation to offer, in a constructive manner, proposals that enrich both projects so that they mean progress in the construction of the legal framework.
The Senate has the historic opportunity to promote better and greater access to justice by formalizing and harmonizing the provisions that we have discussed on this occasion.
Mediators are obliged to participate in the construction of such an important legal framework, since we are convinced that the new legislation should contribute to the consolidation of a Mexican mediation system and a culture of peace.
*The author is a lawyer and professional mediator.
phmergoldd@anmediacion.com.mx
Twitter: @Phmergoldd
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