Resorting to alternative means of dispute resolution such as mediation, conciliation and arbitration has not only become an excellent option to resolve and ventilate legally qualified conflicts of interest in an agile and flexible manner, it has also become a constitutionally recognized human right as part of the right of access to prompt and expeditious justice.
In general, the regulation of these alternative justice mechanisms has been under the jurisdiction of the states, as is the case of the Alternative Justice Law of the State of Jalisco. However, then January 26, 2024, the General Law on Alternative Dispute Resolution Mechanisms was published in the Official Gazette of the Federation.This is a rule of general observance for the entire national territory, which intends to generalize the minimum and most fundamental bases to be sought in the realization of these paraprocedural means.
The General Law of Alternative Dispute Resolution Mechanisms has brought with it several advantages in favor of these extrajudicial means, such as an express catalog of guiding principles, the creation of the National Council of Alternative Dispute Resolution Mechanisms, the inclusion of restorative justice as another alternative means, the online processing of processes, among several others.
However, in spite of the favorable points that the General Law on Alternative Dispute Resolution Mechanisms may have, this point of view considers that the General Law on Alternative Dispute Resolution may not be a very effective tool for the resolution of disputes.he regulation of agreements is one of the most attractive and innovative aspects of this new regulation.
The legislation in question, in section IX of Article 5, defines what should be understood by the agreement resulting from the means of paraprocedural justice:
"Article 5. For the purposes of this Law, the following shall be understood as:
(...)
In other words, the agreement in the alternative means of dispute resolution is nothing more than an agreement between the parties.the instrument subscribed by the parties that prevents or partially or generally settles the conflict that is the subject matter of the process (Instituto de Justicia Alternativa del Estado de Jalisco, n.d.).
The form of regulation of the agreement outlined in the General Law of Alternative Dispute Resolution Mechanisms, frankly, can be quite beneficial to ensure the certainty and execution of this agreement, because as provided in the text of Article 98 of this legislation, if the agreement was carried out in compliance with the requirements and demands set forth in the body of that law, the agreement shall have the effect of res judicata:
"The agreements signed by the parties and subscribed by the facilitator, which comply with the principles set forth in Article 6 and the obligations set forth in Article 30, shall be registered and recorded in the corresponding Agreement System, shall have the effect of res judicataThe Company shall be subject to the provisions of this Law and other applicable provisions in their respective areas of competence.
However, one of the general principles of alternative means of dispute resolution, as well as of the theory of alternative justice itself, is that the agreements have binding force between the parties that sign them.with the text of the aforementioned article 98, hereinafter this aphorism is at a legally coercive level, and therefore, it is easy to understand how the execution of the agreements will be more agile for the interested parties, and above all, effective for their interests.
However, although the General Law of Alternative Dispute Resolution Mechanisms structures a very solid and accurate construction in the regulation of the agreements, the truth is that not all of its passages are rosy, especially with regard to the responsibility of the facilitating personsThe specialists qualified for the public or private exercise of these paraprocedural means, such as mediators, conciliators, arbitrators, negotiators, etc.
This decline in the edification of the regulation of the agreements in attention to the commitments and duties to be assumed by the facilitators in their elaboration is evidenced by the text of Article 35 of the General Law of Alternative Dispute Resolution Mechanisms (Ley General de Mecanismos Alternativos de Solución de Controversias):
"Article 35. Facilitators incur civil liability for the deficient or negligent preparation of theThe Company shall not be liable for any administrative or criminal liability that may apply, in accordance with the provisions of this Law and other applicable provisions".
The purpose of this article 35 is to place a level of responsibility on the facilitators who are in charge of the execution of an agreement, i.e., the facilitators' main task is not only to bring the parties to the conflict to agree on a solution in a consensual instrument, but also to ensure that the agreement is correctly drafted, signed or registered in the Agreement System.
There is no doubt that imposing a degree of responsibility on facilitators is clearly a good idea in order to ensure diligent management on their part in their active role as specialists in alternative means of justice, however, this good intention is lost with the imprecise and ambiguous wording of the aforementioned article 35.
The "deficient and negligent elaboration" of the agreement referred to in article 35 in question, ands too broadly worded to be the fundamental nuance in demarcating the facilitator's civil, administrative or criminal liability for the inadequate manufacturing of the agreement.
Since each situation, conflict, and interests of the parties subject to alternative means of justice is always a different world, the circumstances surrounding the solution embodied in an agreement cannot be the same for all scenarios and parties involved, and, therefore, neither can be the causes that reveal the deficiencies of a covenant.
That is to say, The problem with Article 35 of the General Law on Alternative Dispute Resolution Mechanisms is that it does not set a constant and invariable tone or range for the facilitator to be liable for the execution of a defective agreement, much less does it establish a path or guide for the establishment of liability beyond pointing out the existence of "deficient or negligent preparation" of an agreement.
It is worth mentioning that with this criticism of article 35, it is not intended to argue that this regulation is inaccurate for not defining what should be understood by a "deficient" or "negligent" agreement, since certainly, the objective of the General Law of Alternative Dispute Resolution Mechanisms, as well as that of any other law, is not to define words or locutions (First Chamber, 2004, Jurisprudence, Digital Record: 180326), and consequently, for no reason an unconstitutionality of article 35 of this norm is raised by that tenor.
However, it is an indisputable fact that clarity in legislation, rules and regulations, certainty and clarity in laws is an imperative aspect to ensure the certainty of the persons subject to normative hypotheses, especially when the text of the law points to a class or kind of responsibility, as is the case of facilitators in the elaboration of agreements resulting from alternative justice processes.
Now, according to Section One, Chapter VII of the General Law of Alternative Dispute Resolution Mechanisms, specifically in Article 94, it is mentioned that the agreement must meet certain minimum requirements, such as the data of the subscribing parties, the effects of compliance, among others.
It is for this very reason that, for this point of view, lhe way in which the diligence and readiness of the facilitator in the preparation and execution of the agreement can be measured is by the integration of the elements indicated in Article 94.
Consequently, if the facilitator does not consider the requirements set forth in Article 94 of the General Law of Alternative Dispute Resolution Mechanisms (Ley General de Mecanismos Alternativos de Solución de Controversias), then it is possible that it qualifies in the hypothesis foreseen by the aforementioned article 35The company has made a deficient agreement due to negligence and therefore may be subject to a degree of criminal, civil or administrative liability, as appropriate.
In this sense, the facilitator is considered to have performed a covenant in a deficient and negligent manner when he/she does not take into consideration within the body of the agreement, at leastthe following aspects:
1.- The place and date of the celebration.
2.- The name, age, nationality, marital status, profession or trade and domicile of each of the parties, or proof of the document that accredits their representatives.
3.- The clauses that determine the form, time and place of performance.
4.- The manifestation of the consent of the interested parties, such as autographic signature, electronic signature or fingerprints.
5.- The validation of the competent Public Center for Alternative Dispute Resolution Mechanisms (state or federal) in case the agreement involves the rights of minors.
6.- The effects of non-compliance and the ways to obtain compliance through the courts.
7.- The facilitator's professional data, such as his or her license and certification number.
8.- The corresponding folio number or identifier.
In addition, an agreement may also be conceived and deemed to have been deficiently executed when the competent Public Alternative Dispute Resolution Center, is of the opinion that the agreement was drafted in such a mannerAccording to Sections V, VII and XII of Article 29 of the General Law of Alternative Dispute Resolution Mechanisms, the heads of these agencies are empowered to supervise, review, validate and give their opinion on the content of the agreements:
"The Head of the Public Center for Alternative Dispute Resolution Mechanisms shall be responsible for at least the following:
(...)
(...)
VII. Review the content of the agreements The information provided by the facilitators in the private sector for validation purposes in the appropriate cases;
(...)
XII. Notify the National Platform of Facilitating Persons, of the sanctions imposed, for its inscription in the same".
Consequently, it is possible to conclude that a covenant is poorly or negligently drafted, in the sense that it states (or attempts to point out) the aforementioned article 35, cuThe company does not comply with the formalities set forth in Article 94 of the General Law of Alternative Dispute Resolution Mechanisms.and also, when a Public Center for Alternative Dispute Resolution Mechanisms (Centro Público de Mecanismos Alternativos de Solución aThe Company determines this in its review and monitoring processes of the agreement.
But, in addition, of course the parties interested in the alternative justice process may also agree on the cases and assumptions in which the agreement may be considered defective, without prejudice to the minimum requirements established by the General Law on Alternative Dispute Resolution Mechanisms..
Consequently, An agreement will also be deficiently drafted when the facilitator falls under any of the assumptions agreed to by the parties to the agreement.
As a final thought, it is clear that the architecture of the agreements provided for in the General Law on Alternative Dispute Resolution Mechanisms is a step in the right direction to encourage the use of alternative justice methods, however, it is also clear that it is a law that still suffers from some slips, However, it is also evident that it is a law that still suffers from some lapses, such as the case of establishing the responsibility of the facilitators for a poorly drafted agreement, so we can only wait to see how this legislation evolves and adapts to the needs of society and specialists in alternative dispute resolution.
References.
Instituto de Justicia Alternativa del Estado de Jalisco (Institute of Alternative Justice of the State of Jalisco) (n.d.). Guide to mediation/ conciliation in civil matters. Government of Jalisco Judicial Branch. Accessed May 09, 2025. https://ija.gob.mx/cms-data/depot/hipwig/GUIA-DE-MEDIACION-CONCILIACION-EN-MATERIA-CIVIL.pdf
General Law of Alternative Dispute Resolution Mechanisms. New Law published in the Official Gazette of the Federation on January 26, 2024. https://www.diputados.gob.mx/LeyesBiblio/ref/lgmasc.htm
LAWS. ITS UNCONSTITUTIONALITY CANNOT DERIVE EXCLUSIVELY FROM THE LACK OF DEFINITION OF THE WORDS OR LOCUTIONS USED BY THE LEGISLATOR. First Chamber. Jurisprudence. Constitutional. Digital record: 180326. Thesis: 1a./J. 83/2004. Judicial Weekly of the Federation and its Gazette. Volume XX, October 2004, page 170. https://sjf2.scjn.gob.mx/detalle/tesis/180326
