Even deploying the most meticulous and rigorous safeguards aimed at guaranteeing the observance of the obligations arising within a legal bond, the latent risk of an eventual transgression or breach always remains unalterable, whether motivated by carelessness, involuntary errors or, in the worst case scenario, by the wilful bad faith of any of the parties involved.
Inevitably, because of this unavoidable possibility, the appearance before jurisdictional bodies becomes, for the good or bad fortune of those involved, a constant that must be taken seriously by the contracting parties, interested parties or, in general, any individual who holds an enforceable right or is compelled by an obligation, since the resolution of legal disputes before an instance vested with judicial authority is, undeniably, an omnipresent phenomenon in the daily life of the social fabric.
Now, the most immediate and common notion that usually emerges in the mind of the average citizen when hearing the expression "legal problems" is that the State, in its role as a sovereign entity, is the only entity vested with the power to settle any legal dispute that may arise. However, there is an alternative means by which individuals - and even the State itself - can resolve their legal disputes outside the traditional channels of formal justice: alternative means of dispute resolution.
Alternative dispute resolution mechanisms constitute procedures different from jurisdictional ones, aimed at resolving disputes between parties confronted by conflicting interests (De Villa Cortés and Márquez Algara, 2013); in other words, they are methods designed to settle legal conflicts without the intervention of courts, through formulas such as negotiation, mediation, conciliation or, of course, arbitration.
Traditionally, the regulation of such mechanisms has been delineated and structured by each of the states, according to their own regulatory powers. An example of this is the State of Jalisco, with its "Alternative Justice Law of the State of Jalisco", and Aguascalientes, through its "Mediation and Conciliation Law of the State of Aguascalientes", which establish the guiding principles and procedures for alternative dispute resolution in their respective territories.
However, on January 26, 2024, the General Law of Alternative Dispute Resolution Mechanisms was published in the Official Gazette of the Federation, a regulatory body of mandatory observance at the national level, conceived as a regulation of article 17 of the Constitution, as regards the human right of access to justice, and, as it has already been determined by several jurisprudential precedents, the access to these alternative mechanisms constitutes, in itself, a fundamental prerogative protected by the constitutional order (Plenos de circuito, 2019, Jurisprudencia, Registro digital: 2006554).
To be frank, the irruption of this new legislation in the national regulatory scenario harmonizes with that ancestral popular sentence that says: "better late than never", since its intellectual gestation dates back to 2016, when the so-called "Everyday Justice Dialogues" took place, a forum for legal deliberation in which the Legislative Branch, the Judicial Branch, public agencies and various actors from the private sector converged, with the purpose of outlining a robust federal framework in the field of alternative justice.
It is precisely from such collective reflection that, in 2017, the Political Constitution of the United Mexican States was reformed, incorporating section XXIX-A to Article 73, in order to confer to the Congress of the Union the express power to legislate on alternative justice mechanisms, thus cementing the indispensable constitutional basis for the issuance of this general legislation.
It should be noted that the purpose of these new regulations is not to abrogate or displace the local alternative justice regulations issued by the legislature of the states; however, they do establish a national guideline regarding the minimum elements to be observed in the implementation and operation of each of the alternative dispute resolution mechanisms within the state level, thus setting a threshold of structural uniformity throughout the territory of the Republic.
Regardless of its late arrival in the national legal framework, the fact is that the use of alternative means of justice represents a phenomenon that should be encouraged with renewed vigor within society, as an effective and legitimate means for the peaceful resolution of legal disputes, therefore, this legislation is intended to be an instrument of encouragement that promotes its implementation in a progressive and decisive manner.
As it is a regulatory framework composed of 144 articles, its content is broad and profuse, highlighting provisions of notable interest, where the incorporation of restorative justice processes as a recognized modality of alternative mechanism stands out, coinciding with its acceptance within the National Code of Civil and Family Proceedings.
Likewise, the possibility of processing these procedures through technological platforms is to be applauded, which allows them to be carried out online, with the consequent modernization and expeditious processing of the same.
However, despite the fact that the General Law on Alternative Dispute Resolution Mechanisms incorporates multiple provisions that promote and encourage a reasonable, inclusive and efficient administration of justice, it is also undeniable that it contains certain proposals whose nature is, to say the least, questionable and deserving of severe criticism.
To begin with, it is alarming to note that, among all the guiding principles set forth in Article 4 of said general regulations, one of the most elementary, essential and obligatory postulates in the design and execution of any alternative justice mechanism is not included: procedural economy.
Procedural economy is an aphorism enshrined in the field of adjective law, according to which any procedure ventilated before an instance vested with jurisdictional powers must seek to resolve the conflict submitted to it with the maximum use of resources, the minimum wear and tear in the procedural actions and the achievement of the most efficient result in the least time and with the least possible expenditure (Carretero Pérez, 1971).
On various occasions it has been reiterated that this principle is not mere procedural technique, but a true human right protected by Article 17 of the Political Constitution of the United Mexican States (Tribunales Colegiados de Circuito, 2017, Jurisprudencia, Registro digital: 2014020). Consequently, the observance of procedural economy should be extended, without exception, to all alternative means of dispute resolution, as a tangible manifestation of effective and expeditious access to justice.
From the perspective of the classical theory that structures alternative justice mechanisms, procedural economy constitutes an axial and inalienable principle, and I would even argue, without any exaggeration, that one of the most resplendent virtues of these mechanisms lies precisely in their agility and promptness, attributes that have made alternative justice a highly attractive option for the resolution of legal conflicts.
When addressing alternative means of dispute resolution, it is inevitable to refer to the structural deficiencies that afflict the traditional system of administration of justice, such as the excessive length and exasperating slowness of the jurisdictional processes. Precisely because of this, alternative mechanisms have emerged as seductive ways, whose central axis rests -or should rest- on the principle of procedural economy.
Without going into the multiple factors that have tarnished the credibility of the State's jurisdictional bodies -such as institutional negligence, insufficient regulations, corruption or procedural bad faith-, the fact is that procedural economy is one of the main principles that have historically accompanied, and should continue to accompany, the substantiation of alternative dispute resolution mechanisms.
Therefore, it is particularly disconcerting that the General Law on Alternative Dispute Resolution Mechanisms, which has been presented as an emblem of the most exalted virtues of alternative justice, omits in its Article 4 the inclusion of the principle of procedural economy, leaving out one of the most essential guiding principles to ensure efficient and effective procedures in the resolution of legal disputes.
This is not to assert that this recent legislation completely ignores the purpose of maximizing the resolution of disputes through the minimum of procedural formalities; after all, the possibility of such mechanisms being developed in digital environments could be interpreted as a practical manifestation of procedural speed.
But, from a strictly literal perspective, the General Law of Alternative Dispute Resolution Mechanisms does not impose on the interested parties, facilitators or competent authorities the obligation to safeguard the principle of procedural economy, except for the extensive interpretation that could be derived from the content of Article 17 of the Constitution.
In another tenor, but under the same critical perspective towards this regulatory framework, another of the most relevant aspects within the structure of the General Law of Alternative Dispute Resolution Mechanisms, is that the facilitators (mediators, conciliators, negotiators, among others), whether public or private, have public faith to attest the effects of the agreements that the parties sign, according to the provisions of section I of article 32 of said law:
"Public and private facilitators shall have public faith only in the following cases:
This section represents an unequaled advantage for the speedy resolution of disputes through these alternative mechanisms, since the facilitator is empowered to confer public faith to the agreements reached by the interested parties, who can trust that their consensus is covered by a solid framework of legal certainty, but, above all, it implies that the agreement has legal effects in a prompt manner.
However, these remarkable benefits granted by the aforementioned article 32 regarding the public faith of the facilitators, as a bulwark for the flexibility of the conciliatory procedure, sadly vanish when examining the content of article 25 and section VII of article 29 of the aforementioned law of alternative justice:
"Article 25. Facilitators in the private sphere must submit the agreements signed in accordance with the provisions of this Law to the Agreement System at the federal or local level, as appropriate, in order to obtain the key or registration number thereof, to achieve all its legal effects".
"The Head of the Public Center for Alternative Dispute Resolution Mechanisms shall be responsible for at least the following:
(...)
VII. To review the content of the agreements submitted by the private facilitators for validation purposes in appropriate cases.
That is to say, if the private facilitators do not refer the agreement agreed upon by the interested parties to the local or federal Agreement System, the instrument lacks legal effects, and simultaneously, the content of the agreements, before generating consequences for the parties, must be subject to review by the Head of the Public Center for Alternative Dispute Resolution Mechanisms (Centro Público de Mecanismos Alternativos de Solución de Controversias).
What is the use, then, of giving the private facilitator public faith in the execution of agreements, if the effects of the agreement remain suspended until the agreement is registered in the Agreement System and the Head of the Public Center for Alternative Dispute Resolution Mechanisms has examined its content? Precisely, because of the wording of these two precepts, providing the facilitator with public faith in the execution of the parties' agreements results in an advantage that is lost in a bureaucratic framework that violates the primary essence of alternative dispute resolution mechanisms, that is, celerity.
Undoubtedly, the General Law of Alternative Dispute Resolution Mechanisms regulates registry and content verification institutions, as a mechanism to supervise and safeguard the rights of the parties involved; but if such prerogatives are based on administrative obstacles and formalisms that obstruct a true agile and flexible justice, then it makes no sense to proclaim provisions such as those contained in Article 32.
As if the situation could not become more complex for the facilitators, Article 35 of this legislation provides that they may incur administrative, criminal or civil liability for the deficient preparation of the agreement, without previously establishing the grounds for a poorly prepared agreement:
"The facilitating persons incur in civil liability for the deficient or negligent preparation, subscription or registration of the agreement, without prejudice to the corresponding administrative or criminal liability, in accordance with the provisions of this Law and other applicable provisions".
As a final reflection, there is no doubt that the General Law on Alternative Dispute Resolution Mechanisms represents an important step forward to promote citizen participation in alternative means of justice; however, at least from this personal perspective and for the reasons explained throughout this analysis, the intention of such law seems to harbor a "hidden" purpose: to unclog the congested arteries of the traditional justice system, rather than to genuinely strengthen alternative dispute resolution mechanisms. Even so, it only remains to be seen how this new legislation will respond to the current situation of legal conflicts and, above all, how its application will influence the justice systems.
References.
BURDEN OF PROOF AND RIGHT TO PROVE. THEIR DIFFERENCES. Collegiate Circuit Courts. Jurisprudence. Constitutional, Common. Digital record: 2014020. XI.1o.A.T. J/12 (10a.). Tenth Epoch. Gazette of the Judicial Weekly of the Federation. Book 40, March 2017, Volume IV, page 2368. https://sjf2.scjn.gob.mx/detalle/tesis/2014020
Carreto Pérez, A. (1917). El principio de economía procesal en lo contencioso-administrativo. Journal of Public Administration. (65), 99-142. https://dialnet.unirioja.es/servlet/articulo?codigo=2111224
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). Mexico: 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 constitution-commentaries-of-jurisprudence-constitutional-e-interamerican-t-ii
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
ALTERNATIVE MEANS FOR THE SOLUTION OF DISPUTES OF A CRIMINAL NATURE. IT CORRESPONDS TO THE JUDGE OF THE CASE TO PROVIDE THE APPROPRIATE MEASURES BEFORE CLOSING THE INVESTIGATION (LEGISLATION OF THE STATE OF JALISCO). Circuit Plenary. Jurisprudence. Penal. Digital record: 2006554. PC.III.P. J/1 P (10a.). Tenth Epoch. aceta del Semanario Judicial de la Federacion. Book 6, May 2014, Volume II, page 1331. https://sjf2.scjn.gob.mx/detalle/tesis/2006554
