Alternative Dispute Resolution (ADR) in Argentina
- Argentina
- 05/05/2002
- Hourbeigt Ruiz Martinez & Padilla
Number 24.573. Enacted: 25-X-1995. Published at the Official Gazette: 27-X-1995.
Regulatory Decree no. 1021/95. Published at the Official Gazette: 20-XII-1995.
SUMMARY: Mediation and Conciliation. General Dispositions. Mandatory procedure prior to any lawsuit. Roster of mediators. Fees. Civil and Commercial Procedure Code reform.
Since April 24, 1996, mediation is mandatory (article 1) for the Buenos Aires’ Civil and Commercial Courts. Provincial States have been invited to adhere this national law in order to introduce mediation into its own Court Systems.
Article 1 mandates a mediation stage prior to fill lawsuit, to “promote communication between the parties in order to reach settlement” before the case enters the Court system. This mandatory requisite — the mediation — can be fulfilled by:
(1) resorting to the procedure stated by this Law (the so-called “Judicial Mediation”): filling of the mediation forms (article 4), selection of the mediator by lot (art. 4 in fine), mediation procedure (art. 6 to 14) , fees (art. 21 and 22), closing of the mediation (art. 12 and 14); or
(2) by voluntarily choosing a mediator and mediate the dispute prior to resort to the Courts (art. 1, second paragraph), (the so-called “Private Mediation”.)
Notwithstanding almost all patrimony disputes are included into the mandated requisite, article 2 excludes bankruptcy, wills, labor, and criminal cases. Family, and public disputes are excluded also. These exclusions do not mean mediation is not allowed for those kind of disputes; to the contrary, mediation can be tried voluntarily by the parties for every dispute they consider it appropriate but parties are not required by law to mediate them. In other words: mediation is not mandatory for article 2 disputes, but parties could mediate it if they want to. Article 2 does not forbid mediation; it excludes the obligation to mediate stated by the Law.
In a few words, the mandatory mediation procedure (remember one can avoid, elude, this procedure by choosing the “voluntary” or “private” mediation of article 1 in fine) is as follows: the plaintiff fills the mediation form, and the mediator is selected by lot, drawn from the Roster; then the plaintiff must contact the selected mediator who must then notify the parties sending citations to come to mediation. Mediation process can last for sixty (60) days, maximum. Legal representation by attorney is required. The agreement, or a party willing not to mediate, put an end to the process. In the former, the dispute is settle. In the latter, a note signed by the selected mediator allows the plaintiff to fill lawsuit (the same for “private mediation”.)
Mediators’ fees are fixed: $150 or $300 as a fee for all the process (notwithstanding the number of meetings conducted) for disputes up to $3,000, or more than this figure.
It could be implied that other dynamics of the mediation process are left to each mediator style.
To be listed as a mediator it is a requisite to be a lawyer with a two-year practice, had taken a 52-hours training course on mediation at any approved Institution, and have proper facilities, offices, to conduct mediations.
The Regulatory Authority of the mediation system is the Ministry of Justice (not the Courts.)
