…The only viable option for the mediation law to move forward would seem to be its remote configuration, taking advantage of all of the virtual approaches that emerged because of the pandemic. This could be an interesting option because it will come up against a bleak schedule following the reopening of the civil courts due to the brutal economic crisis and its impact on levels of litigiousness…
Last week, efforts to reform Chile’s civil justice system, which began in 2007, were put off once again. Justice Minister Hernán Larraín said that he would promote a mediation law “as a formula for resolving concerns in these areas” and that “will streamline the percentage of cases that enter the courts each year.”
This idea of using mediation as a patch that can help heal an inefficient justice system was a paradigm that was introduced in Latin America following Colombia and Argentina’s conciliation and mediation laws (which were passed in 1991 and 1995, respectively). These countries established mediation or conciliation as mandatory pretrial activities (in the case of Argentina) or as a procedural requirement (in the case of Colombia). Furthermore, the two laws made it clear that their purpose is to relieve the burdens of civil and commercial judicial offices. We must recognize the contributions of two women in order to understand this period: Gladys Álvarez, the Director of Fundación Libra, and Elena Highton, currently the Vice President of Argentina’s Supreme Court. They promoted mediation in their country after having completed mediation courses at Harvard University and being influenced by the US experience. A change in discourse subsequently took place, and the new reformed legislation in these countries established that the real goal of mediation was no longer relieving judicial congestion but improving access to justice.
This vision of turning to mediation to relieve congestion in the courts came to Chile along with serious issues of overburdening identified when the new family courts were created by Law 19.968 of 2005. Three years later, mandatory mediation (which already existed as voluntary) was used to address the situation. It was set as a requirement for filing a complaint involving the three most common types of disputes (child support, care and direct and regular relationship). Again, mediation came to the rescue of the courts -in this case, civil courts- governed by a completely anachronistic procedure code that dated back to 1902.
The decision to delay the civil procedure reform is directly linked to the impact that the mediation law announced by the minister could have. As proposed by the Ministry of Justice, the Civil Procedure Code would be accompanied by an organic model for civil courts that would incorporate units with mediation functions into them. While this measure initially generated distrust within the Judiciary, it is very much aligned with successful international experiences such as “Court Annexed Mediation” and “Multi-Door Courthouses”[1]. As such, stopping the civil procedure reform with the ensuing break on the modernization of the organic court model limits the possibility that mediation with be strengthened as a collaborative mechanism that can be connected to and derive from the civil courts.
On the other hand, if we hope to implement a mediation law in the civil sphere without these levels of integration with the civil courts, we are likely moving towards working with a bid mediation system. It would be interesting to explore the assessments of the quality of family mediation and ask ourselves whether mediation, regardless of how much it focuses on the resolution of specific conflicts, should not be guaranteed by the State as a quality public service. Another aspect to note is that a new civil mediation law would consecrate legislation that is fragmented into areas (family, labor, criminal, healthcare, etc.) in which there are no components that cut across the operation of all mediation services and the rest of the collaborative mechanisms. This prevents us from moving towards more balanced standards of operation.
The only viable option for the mediation law making sense would seem to be creating remote mediation by taking advantage of the conditions offered by the pandemic. This could be an interesting alternative, but it will come up against the harsh reality of the impact of the economic recession and reopening of the courts on levels of congestion of civil justice. To top it all off, the local courts must also be strengthened. They saw the civil procedure reform as an opportunity to revisit their role and functions.
One possible option, but one that would not generate immediate results, would involve moving from seeing collaborative mechanisms as a patch to understanding them as one of the foundations upon which we set the rules that guide us as a society. The October constituent process provides an opportunity to determine whether we want to enshrine collaborative mechanisms (along the lines of the constitutions of Mexico, Costa Rica or Ecuador) in the new Chilean Constitution and begin to see them as a long-term policy rather than a tool for relieving that we only turn to in times of crisis.
It does not seem wise to rely solely on the constituent process. In that sense, I recognize the work of Professors Macarena Vargas and Rosa María Olave, who have warned us of the need to move towards concepts of justice that involve greater integration between formal justice and collaborative methods. This would be a good time to revitalize discussions, generate broader dialogues with civil society and renew the theoretical frameworks from which we engage in these conversations.
[1] The experience of the Multi-door Courts was also influenced by the flawed pilot project of Neighborhood Justice Units created during the first administration of Sebastián Piñera and the Citizen Justice Centers proposal from the Judiciary that was never implemented.