On May 6, 2010, the Official Gazettes published Law No. 26 589, establishing new requirements and processes subject to mandatory mediation prior to the filing of court procedures (the “Law”).
By Javier Canosa
The purpose of the Law, promoted by the Bar Association of the City of Buenos Aires, the Ministry of Justice and associations of mediators, is to boost direct communication between the parties in order to reach an out-of-court solution to the dispute.
The Law empowers judges not only to invite the parties to conciliation or to find an alternative dispute resolution, but also to derive the parties to mediation if the nature and state of the dispute so requires.
The ruling principles set forth by the Law are mediator’s impartiality regarding the parties’ interests, parties’ freedom and equality, particular regard to minors and incapable persons’ interests, confidentiality, celerity, and direct communication between the parties in furtherance of a creative solution to the dispute.
The Law reserves the function of mediator exclusively for attorneys-at-law. Specifically, the Law states that in order to qualify as mediator, it is necessary to hold an attorney-at-law degree, to have been member of a Bar Association for at least three (3) years, to receive the training required by law, to pass a qualification examination and to be registered in the National Registry of Mediation.
Apart from that, mediators may act, with the parties’ prior consent, in conjunction with professionals with qualifications in the matters related to the dispute in question. Such professionals shall act as assistants to the mediator, upon the latter’s instruction and responsibility.
The Law governs disputes of any kind, except for:
• Criminal proceedings;
• Proceedings for separation and divorce, nullity of marriage, filiation, parental authority and adoption (except for financial matters, which shall be transferred to the mediator);
• Proceedings to which the national, provincial or municipal State o the City of Buenos Aires or their decentralized entities are parties;
• Proceedings for disqualification, incapacity determination and requalification;
• Proceedings for protection of constitutional rights, access to information, writ of habeas corpus and injunctive reliefs;
• Preliminary injunctions;
• Preliminary proceedings and production of evidence prior to lawsuit;
• Succession proceedings;
• Bankruptcy proceedings;
• Calling to joint owners’ meeting;
• Conflicts related to labor courts’ jurisdiction;
• Voluntary proceedings.
Besides, the Law introduces familiar mediation for financial or non-financial disputes arising from family relationships or involving their members’ interests or relating to the integrity of the marital bond. The mediator is empowered to end a familiar mediation process if learns about circumstances jeopardizing the psychic or physical integrity of the parties involved or their families.
Likewise, the Law introduces the imposition of a fine for the party who does not appear to the mediation conference.
Finally, the Law determines that in order to commence legal proceedings, it shall be necessary to provide the record issued by the mediator involved, who shall sign the record together with the parties. The innovation introduced by the Law is that it requires that the mediator’s signature be certified by the Ministry of Justice, Security and Human Rights.
The Law shall come into effect on August 4, 2010.