In the architecture of the General Law on Alternative Dispute Resolution Mechanisms, the facilitator is instituted as a guarantor of dialectical impartiality and restorative effectiveness outside the traditional methods of access to justice; hence the legislator, aware of the delicate role that such a protagonist assumes in channeling opposing wills, has built a disciplinary regime whose cornerstone is the notion of "serious misconduct".
This category does not arise ex nihilo, but comes into being when, after enumerating in Article 142 a series of reprehensible conducts, the precept 143 The law gives them a qualitatively more onerous qualification by declaring them serious misconduct; so that acts of manifest partiality, the request for perks, the disregard of procedural deadlines, the unlawful delegation of functions, the exercise without certification, the representation of parties with an evident conflict of interest, the violation of confidentiality, the resistance to correct warnings, the failure to warn of the consequences of the breach of an agreement or the reluctance to adopt reasonable adjustments, among other conducts, are considered serious misconduct, are invested with such a sanctioning character:
"The following shall be considered major offenses those established in sections III, IV, V, VII, VIII, IX, X, XI, XII, XIII and XIV of the preceding article".
"Article 142. Public and private facilitators shall be subject to the imposition of a sanction under the terms of the preceding article, in the event of any of the following assumptions:
III. When a complaint is filed due to subjective treatment, manifestation of value judgments, opinions or prejudices that may influence the decision making of the parties. Derived from the above, any of the parties may request the substitution of the facilitator;
(...)
VII. To delegate the functions that correspond to him/her to third parties;
VIII. Acting as a facilitator without current certification;
XII. Failure to explain to the parties the consequences in case of partial or total noncompliance with the Agreement;
XIII. Failure to make the reasonable and procedural adjustments required by the parties, as the case may be;
XIV. Failure to comply with the preventions ordered by the Public Centers, and".
Answer, then, to the question what is a serious misconduct for the facilitator? The purpose of this article is to warn that it is not an autonomous infraction, but a qualifying statute that amplifies the seriousness of certain functional offenses due to their potential to pulverize the guiding principles of the mechanism-confidentiality, neutrality, voluntariness and good faith-, harming not only the rights of the parties, but also public confidence in non-adversarial justice.
Thus, a serious misconduct is the concretion of a conduct typified in the specified fractions of Article 142 that, by compromising the ethical and technical essence of the facilitating role, activates the most drastic system of sanctions provided for by the Law.
In other words, the law establishes a zero tolerance threshold for any action that erodes the equality of arms, commercializes the conciliatory function or calls into question the professional honesty of the intermediary.
Note that the exclusion of section VI of Article 142 from the list of conducts qualified as serious misconduct is not due, at least in my humble opinion, to a drafting oversight by the legislator, but to an intentional decision, i.e., the omission to update the information in the Registry of Facilitating Persons does not constitute a serious misconduct due to a mere lack of legislative technique.
In my opinion, such omission, described as the simple failure to update the registry data, is conceived more as an administrative error that can be corrected than as a frontal attack on the core principles of neutrality, confidentiality or probity that govern the conciliatory work.
Indeed, the most serious conducts are those that immediately compromise the impartiality of the facilitator, unduly commercialize his function, violate confidentiality or directly undermine the rights of the parties; in contrast, section VI of article 142 punishes a bureaucratic omission whose harmfulness, although relevant to transparency and institutional traceability, does not destroy the ethical-legal balance of the alternative justice procedure or induce irreparable damage to those who use the mechanism.
The legislator, aware of the need to grade sanctions in accordance with the principle of proportionality, reserved the qualification of "serious" for those infractions that erode social confidence in the system, while relegating offenses of a merely registry nature to the scope of ordinary sanctions, such as a reprimand or an administrative fine.
Thus, the absence of section VI in the catalog of serious misconduct responds to a logic of weighting: the law reserves its maximum severity for conduct that threatens the integrity of the mechanism, while considering the updating of the registry as an important obligation, yes, but eventual and reparable, whose consequences can be dealt with without the need to resort to the most drastic disciplinary arsenal.
However, the legal consequence of incurring in a serious misconduct is enshrined with cold forcefulness in the article 48, section Iwhere it is proclaimed that it will proceed revocation of certification when the facilitator is found responsible for one of those qualified infractions; revocation is not an abstract punishment, but the removal of the professional qualification that allows the facilitator to work as a facilitator, with the consequent exclusion from the corresponding registry and the impossibility to intervene subsequently in alternative mechanisms until a new certification is obtained in accordance with the demanding legal canons.
The severity of this measure makes sense when we realize that the certification - a true passport of legitimacy - is a sine qua non condition to act in mediation, conciliation or collaborative negotiation processes; so that its revocation is equivalent, in fact, to a functional disqualification that shields the system from unworthy operators and prevents the repetition of practices detrimental to the effective protection of rights.
It should be emphasized that such revocation, being an administrative sanction with registry repercussions, operates without prejudice to possible civil or criminal liabilities derived from the same conduct, thus configuring a multifaceted sanctioning framework whose ultimate purpose is to preserve the purity of the dialogic channel that the alternative mechanisms must offer.
Thus, serious misconduct is a turning point that transforms the professional error into an institutional breach, justifying the expulsion of the offender from the conciliatory network to restore the credibility of the mechanism and safeguard the quality standards that modern society demands from its alternative means of justice.
In conclusion, the serious misconduct of the facilitator shows the zone of intolerance of the law in question, that is, a catalog of conducts that, due to their special harmfulness, mark the transition from simple irregularity to ethical and procedural bankruptcy; and the revocation of the certification, provided for in Article 48, section I, is established as the forceful response with which the legislator seeks to eradicate from the root any shadow of dishonor that could tarnish the noble task of pacifying conflicts through the word.
References.
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
