Although in narrow terms corporate governance can be conceptualized in all the guidelines and mechanics that mark the relationships between directors, administrators and shareholders in order to meet the objectives of a corporation, it is also a figure that aims to minimize and resolve conflicts and frictions that may exist between all the pillars of the company, from the partners themselves to the members of the small, medium and senior management.
In this sense, I have no doubt that the inclusion of alternative methods of dispute resolution is an inevitable consideration in the structure of any corporate governance model in the management of a corporation because of the agile, flexible and effective way of solving the problems that may arise therein.
Alternative means of dispute resolution "are procedures different from jurisdictional ones that aim to resolve conflicts arising between parties with a problem of interests" (De Villa Cortés and Márquez Algara, 2013, p. 1587), i.e., they are ways that propose to resolve disputes or conflicts of qualified legal interests in a non-jurisdictional manner.
The Code of Principles and Best Practices of Corporate Governance of the Business Coordinating Council in its 2018 version is a good exponent of how these paralegal mechanisms are key points in the corporate governance of corporations, since according to its "best practice 7", it is highly suggestive that a company defines and establishes a procedure for the solution of problems that may occur between shareholders and members of the board of directors, a recommendation that can be amply satisfied with the integration of alternative justice mechanisms in the course of its corporate governance.
The great significance of alternative methods of conflict resolution in the radiography of the corporate governance of a corporation lies in the fact that these means seek to prioritize the solution of the corporate conflict not necessarily from an encounter between better rights and positions, but rather as an approach to the most intimate core of the problem, such as the personal difficulties of the shareholders, the lack of stimulus in the management's performance or even a simple communication misunderstanding.
In this way, with the integration of alternative means of justice in the corporate governance program of a corporation, the problems become much more profound in scale than a contrast of rights and obligations in a traditional jurisdictional instance could offer.
Under this scenario, it goes without saying that with the perspective of these para-judicial mechanisms, the problems that may arise between shareholders and administrators, in addition to being solved in a more agile and expeditious manner, can be aired in depth, thus avoiding unnecessary or excessive friction that could affect the future of the corporation.
Now, it is worth mentioning that the inclusion of alternative justice in the corporate governance of a corporation is an element that arises more as a matter of diligence than as an obligation provided for in a legal framework, however, it is interesting that the General Law of Commercial Companies highlights the use of alternative methods of dispute resolution in the regulation of simplified joint stock companies for the problems that may arise between shareholders and third parties outside the company, a vision that I consider is very accurate for this legislation, and which frankly I think should be extended to all types of commercial companies.
However, the use of alternative methods of dispute resolution is not only limited to resolving problems that may occur between the shareholders of the corporation with its management body or with third parties, as provided by the Business Coordinating Council or the General Law of Commercial Companies, but may also extend to conflicts between shareholders with the corporation itself, with managers, with intermediate bodies, with liquidators, and even among the shareholders themselves.
It is also worth mentioning that the Commercial Code provides for arbitration and judicial conciliation/mediation as the two main methods of alternative justice, while locally some states have taken the task of building specific legislation to regulate para-judicial means of conflict resolution, so that these regulatory frameworks may be a good first step to anchor these alternative mechanisms to the corporate governance of a corporation.
However, if I have to make a recommendation to introduce alternative justice more robustly to the body of corporate governance of a corporation, it would be with the provisions of the recent General Law on Alternative Dispute Resolution Mechanisms, as it is a general framework that addresses in a more graded manner these methods of conflict resolution, such as arbitration, mediation, conciliation, negotiation and even restorative justice.
Of course, it is evident that the General Law of Alternative Dispute Resolution Mechanisms is a norm that still needs to be polished on many levels, such as the fact that it does not specify what should be understood by a "deficiently" drafted agreement or what is the limit of the public faith of the facilitators; however, this norm can be an excellent guide of how the trances that may occur in the corporate body in virtually any scenario and with any personal or functional element can be dealt with.
As a final comment, I find it somewhat unusual that with the progress that alternative dispute resolution methods have made in current legislation and with the multiple cases that demonstrate their effectiveness in airing qualified problems, there is still reluctance and ignorance of how truly effective they can be in the corporate governance of a corporation, so I can only invite corporate counsel, lawyers, entrepreneurs and business organizations to include alternative means of justice in the backbone of companies as a primary device within the context of any corporate governance plan.
References.
De Villa Cortés, J. C. & Márquez Algara, M.G. (2013). Alternative means of conflict resolution. In Human rights in the Constitution. Comments on constitutional and inter-American jurisprudence. (pp. 1587-1601). Instituto de Investigaciones Jurídicas, Suprema Corte de Justicia de la Nación, Konrad Adenauer Foundation. https://biblio.juridicas.unam.mx/bjv/detalle-libro/3568-derechos-humanos-en-la constitucion-comentarios-comentarios-de-jurisprudencia-constitucional-e-interamericana-t-ii
