¿Hate Going to Court? Why ADR may be the answer
By Alejandro Osuna, email@example.com
Clients often complain to me about the quality of the Mexican Justice system. In my opinion, the system generally works, but it faces the typical trappings inherent to a state- managed system. Rigid statute-based procedures, a huge backlog, and a difficulty to understand complex cases, or to process a case when it involves foreign elements (witnesses in different countries, language, application of foreign laws), which make the processing of the case more cumbersome. The result is a process that is slow, and that leaves all parties –and their attorneys—unsatisfied to say the least.
Are there other options? The answer is yes, and it is called Alternative Dispute Resolution or “ADR”. For those not versed with legalese, ADR stands for Alternative Dispute Resolution, and typically encompasses mediation and arbitration or some variation of the same. In mediation, a third party neutral is brought in to assist the parties in better understanding their different views of their problem, to help them comprehend the reasons that made it difficult for them to resolve issues on their own, typically, because of different communication styles, hidden agendas, or cultural differences. A good mediator will help the disputants bridge these “blocking issues” before getting to the problem itself. The mediator will then assist them in changing their focus, from one that is based on the past (the breached contract, ignored complaints, unadresses grievances) to one that focuses on the future, and on the opportunity for the parties to develop their own solutions. Because mediation is a flexible process, the parties to the dispute may custom-design a solution (they may even dove-tail needs), and will additionaly learn a new way of solving problems.
Another, albeit more aggressive form of ADR is arbitration. Arbitration, to put it simply, is an agreement of the parties to hire their own private judge solve their dispute. An arbitrator can issue a binding decision, that in most cases, is final. Arbitrators are typically highly experienced lawyers, that not just know the law that governs the dispute, but are also experts in the arbitration process. When chosing an arbitrator Parties will also want to consider his qualifications, for example, his fluency in the language –or languages- relevant to the dispute, as well as his availabity. The arbitrator may also come from a specific field, for example, he may be knowledgeable of maritime contracts, real estate law, or intellectual property. It is not uncommon for parties to chose an arbitrator from a field other than the law, particularly when the dispute involves complex technical issues. In the parties can reach agreements regarding the process, the time-lines, place for the hearings, the evidence that will be submitted, language(s) to be uses, making the process much more stream-lined and efficient than court adjudication. The drawback is that in arbitration the decision is typically final, meaning that your stuck with the ruling the arbitrator issues. Also, because the arbitrator is a private party, you will need to get a court order to enforce his ruling.
Summing it up, ADR may be a good option, but here is my advice: use the State Courts if it is relatively simple transaction, such as collecting on a debt based on a promissory note (a pagaré), or the enforcement of a secured transaction (pledge or trust). If relationships are important, because you plan to continue dealing with your opponent, mediation is the perfect option. If you are involved in a complex transaction (because it is not common, there a lot of obligations involved, or a lot of international parties, etc.), opt for arbitration, or some sort of mediation-arbitration arrangement.
Alejandro Osuna, is a partner in the law firm of Osuna Gonzalez y Asociados, S.C. He obtained his Masters in Law from the University of Pittsburgh (98), and his JD from the Universidad Iberoamericana Noroeste (1995). For more information, contact him at firstname.lastname@example.org . This article is meant as a commentary and does not substitute for proper legal consultation.
Alejandro Osuna is an experienced arbitrator and mediator.
He has been an arbitrator in cases involving breach of contract and banking issues.
He is a member of the Chartered Institute of Arbitrators, the Vienna International Arbitration Centre (VIAC), and the Mexican Arbitration Centre (CAM).
As a litigator, he has represented parties in arbitration administered by the following organizations:
His experience as a mediator began with his training in 2003 by the San Diego Mediation Center (currently known as the National Conflict Resolution Center). He participated in various bilingual mediations (Spanish-English), and as a trainer.
Copyright, 2017, Osuna González y Asociados, S.C. All rights reserved.