The processing of the Draft Law on Procedural Efficiency Measures of the Public Justice Service (“ALMEP”) is ongoing. Although the modifications it makes are varied and far-reaching, we will focus on the procedural requirement.
If its current wording is maintained, Article 264 of the Civil Procedure Law would be modified, Establishing that the claim must be accompanied by the document proving that the business activity prior to judicial proceedings has been attempted when the law requires such an attempt as a procedural requirement. This would mean that Before going to civil or commercial jurisdiction, an agreement between the parties must be attempted, either through negotiation, mediation or even some other “adequate means of dispute resolution” (MASC); These are defined as any type of business activity to which the parties to a conflict go in good faith in order to find an out-of-court solution to it, either by themselves or with the intervention of a neutral third party.
This procedural requirement is introduced in a general way for the civil order, excluding only those conflicts related to non-operative rights or in which the violation of a fundamental right is denounced or when one of the parties is an entity belonging to the public sector.
The legislator, knowing that this procedural requirement could remain a mere formal requirement, collects tax incentives for the use of these means and sanctions on costs, either for not having attended, without just cause, the attempted agreement, or for "abuse of the Public Justice Service"; In this regard, it is established that, if a judicial process is initiated with the same purpose as that of the previous negotiating activity attempted without an agreement, the courts must take into consideration the attitude of the parties regarding the friendly settlement when deciding on the coasts.
Critical voices with ALMEP have been heard from different sectors, both from those who think that it could have gone further, and from those who assert that it will not be useful to impose a procedural requirement or that the current text generates certain technical doubts that it would be convenient to clarify .
There are those who wonder - not without some reason - if the fact that there are so many means to meet the procedural requirement cannot end up turning it into a mere formal requirement as happened with the mandatory conciliation act. In this sense, it would appear that direct negotiation -as mere communication- would be enough to meet the procedural requirement. And if this is so, Isn't there the risk that these methods are understood to be a mere toll before going to the judicial system?
One of the most recent criticisms is reflected in the Report approved by the General Council of the Judiciary approved on July 22, 2021. The report recalls that, in the field of civil proceedings, the nature of conflicts is of very different quality and all are not equally susceptible to being resolved through negotiation, so he considers that it would have been more appropriate to have circumscribed this obligation - in line with a mitigated mandatory model- to those matters that by their nature may be more susceptible to transaction or agreement.
Uncertainties have also been raised as to whether the provided incentives and penalties will be helpful. The principle of objective expiration for the imposition of costs and the possibility of ordering the payment of costs in cases of acquiescence and partial estimation of the claim is foreseen when previously the defendant has refused to participate in an adequate means of dispute resolution. Likewise, the condemned party in the sentence benefits with the exemption of its payment or the moderation of its amount if it resorted to an alternative mechanism. In those means in which the neutral third party is empowered to make proposals for agreement, the possible award of costs to the party that rejects the proposal made by the neutral third party is foreseen, demanding, in addition, that the rejection of the proposal is “unjustified ”, Which, as we have already indicated, can be problematic to determine in practice. Likewise, the winning party is prevented from being the beneficiary of the cost penalty if, prior to the judicial proceeding, it has refused “without just cause” to participate in an adequate dispute resolution procedure, which is not limited only to cases of judicial referral. , but also to cases where there is a procedural requirement. Given the there is no definition of what constitutes just cause for refusing to participate in an adequate procedure, this issue can cause problems of a practical nature.
Could it have gone further? Does a more aggressive approach make sense so that the winning party is even penalized with a cost award when it obtains a favorable judgment in which a claim less than or substantially equal to the offer that it would have rejected in the mediation or on the proper conflict resolution method used?
Has the ALMEP not fallen short when it foresees that the requesting party is exempt from the cost penalty, unless there is an abuse of the public justice service?
Wouldn't it be possible to establish as an incentive the total exemption from the payment of the judicial fee for those parties that, being subject to payment, have effectively participated in a mediation process that has not been concluded with an agreement on all the controversial issues and has involved the subsequent exercise of action before the ordinary jurisdiction? Wouldn't it be convenient to include personal injury compensation within the cases of personal income tax exemption when they are established by agreement between the parties in mediation?
Regardless of the technical issues that require improvement, in my opinion, the success of ALMEP in relation to with the procedural requirement is that it seeks to cause a necessary change of mentality and method in legal operators -and in society in general- so that we approach controversies in a different way.
There is no doubt that we are facing a challenge that requires effort and change. And this generates criticism. The challenge is for everyone: lawyers and clients, but also for judges because intrajudicial mediation requires the judge to be personally involved -beyond a few lines in a judicial resolution- so that he can see the opportunity offered to litigants, offering the opportunity for the contestants to return to the strategy of pacifying the conflict. And, in this sense, the ALMEP does not contemplate the reconsideration of the criteria for the remuneration of the judiciary, nor the establishment of adequate referral protocols to optimize time, nor the quality of mediation services and mediators, as well as their adequate remuneration. And these are truly important issues on which the success of the project can depend.
Manuel Diaz Banos
Cuatrecasas Lawyer, Arbitrator, CEDR Mediator and Secretary General of the Mediation Center Fide (CMF). Associate Professor Comillas Pontifical University (ICADE)
Article originally published in the Blog Fide of the withfideinitial