Introduction
William E. Gladstone once said, “Justice delayed is justice denied.” This quote encapsulates the urgency of addressing the challenges facing Mexico’s justice system, particularly in light of recent reforms and personnel changes.
The Impact of Personnel Changes
With the rotation of ministers, judges, and court staff, along with the likely replacement of specialized personnel such as accountants, court secretaries, and actuarial secretaries, there will be necessary phases of adaptation and learning. These processes could take months or even years, leading to delays in the swift, efficient, and obstacle-free administration of justice.
- Conflicts will continue to arise, and backlogs of cases will only grow, testing the capacity of courts, tribunals, and panels to respond.
- Secretarial actuaries responsible for issuing summons, executing judicial orders, and conducting personal notifications will struggle to handle the backlog of cases, let alone the additional ones resulting from personnel changes.
The Role of Alternative Dispute Resolution (ADR)
To ensure timely access to justice and facilitate the implementation of judicial reform with minimal impact on citizens, we emphasize the strengthening and increased utilization of mediation and other alternative dispute resolution mechanisms (MASC).
Mediation is a viable avenue for accessing justice in legal conflicts. It offers a collaborative approach, allowing parties to reach mutually beneficial agreements with the support of a mediator. Unlike traditional litigation, mediation avoids a zero-sum game and instead fosters a positive-sum outcome based on the parties’ own definitions and agreements.
Since 2008, the constitutional reform to article 17 has enabled individuals to resolve conflicts without authorities, as a complementary mechanism to ordinary justice. However, the use of MASC for legal disputes and the establishment of alternative justice centers or institutes at the federal level began as early as 1997.
Currently, mediation services are employed in various areas, including family, civil, commercial, penal, and adolescent justice. As of January 2024, the Ley General de Mecanismos Alternativos de Solución de Controversias (LGMASC) aims to address these disputes but falls short of the expected comprehensive legal framework for Mexico’s mediation system.
The LGMASC does not align with constitutional orders, particularly article 73, fraction XXIX-A, which mandates unity of criteria and minimum standards for mediation and conciliation nationwide. Instead, it restricts and bureaucratizes self-resolution, affecting mediation and conciliation users. Moreover, it disregards the significant development and practical application of mediation within Iberoamerican countries, with Mexico and Argentina as prominent examples.
Proposed Reforms to LGMASC
To address these concerns, a thorough review and reform of the LGMASC is proposed. The aim is to free mediation and other MASC from a process-oriented culture, reestablish the role of the mediator, and reinstate the principle of “economy” found in international norms and previously present in Mexican legislation. This principle seeks to build trust through simplicity and freedom in managing the process, ensuring comprehensible, efficient, and rapid development while maintaining legal certainty.
- Remove topics that fall under local legislative competence, such as public property and notary records.
- Eliminate the de facto amendment to the “anti-money laundering” law, which only pertains to explicitly vulnerable activities outlined in the disposition—namely, public trust services provided by notaries and public registrars, not mediators or conciliators.
Additionally, amending article 17 of the constitution to require parties in conflict to participate in pre-mediation or information sessions about other MASC before initiating legal proceedings, modeled after labor conciliation article 123, section A, would further support the cause.
Benefits of Expanding Mediation Services
Strengthening and expanding mediation services and other MASC will promote dejudicialization in managing and resolving legal conflicts. This shift will lead to the rationalization of jurisdictional service utilization by federal and local judges.
Most legal disputes occur at the local level, where everyday justice conflicts are addressed.
Key Questions and Answers
- What is the significance of William E. Gladstone’s quote? It highlights the importance of timely justice and the consequences of delays.
- How do personnel changes affect the justice system? These changes necessitate adaptation and learning phases, potentially causing delays in swift, efficient justice administration.
- What is Alternative Dispute Resolution (ADR)? ADR refers to methods like mediation that help parties resolve conflicts without traditional litigation.
- What is the purpose of the LGMASC? The LGMASC aims to enable individuals to resolve conflicts without authorities, complementing ordinary justice.
- What are the proposed reforms to LGMASC? The reforms include freeing mediation from process-oriented culture, reestablishing the mediator’s role, and incorporating the principle of “economy” for trust-building.
- How will expanding mediation services benefit the justice system? It will promote dejudicialization, leading to more rational use of jurisdictional services.
