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Chapitre 3

ADR METHODS
AND THE DIVERSITY
OF CULTURES:
THE LATIN AMERICAN CASE

par
Eduardo OTEIZA
Professeur à l’Université nationale de La Plata

I. Difficulties encountered in providing an outlook encompassing different countries


and regions
Drawing a perspective in an attempt to cover all latin american countries involves
minimizing cultural, historical, social, political and economic differences. Thus, any
attempt to generalize and find similarities will unavoidably be somewhat arbitrary
when deciding which the common features are. This undertaking, apart from being
subject to my own natural limitations, assumes the need of describing an aggregate that
is full of different shades and nuances, and thus involves a certain margin of error in
trying to equate different situations. Fortunately, my intervention calls for a single point
of view. It is somewhat soothing to know that the pretension of objectivity has been
minimized. The latin american context I will refer to will reflect that I am using the
Kantian terminology of das Ding für mich. In admitting the subjectivity of my analysis,
the fact that I am talking about things in my opinion and not about things as such,
presupposes that I am writing from the south. This interpretation of the latin american
context comes from someone living in Argentina at the turn of a new millennium. The
deep crisis undergone in the recent past, in order to be forbearing with the present and
to perceive the future with greater faith has undoubtedly influenced the ideas I will
share with you.
In the search of certain uniform features I have tried to respect individuality on the
one hand and groups as a whole on the other, as identities that deserve to be
acknowledged. When working on Latin America, I considered the importance of
considering both collective and individual standpoints in the widest sense. Individuals,
small villages, rural areas, indigenous communities, cities, states and state unions in
their different forms, are torn in the tension of striking a balance between individuality
and uniformity. Taruffo1 and Barbosa Moreira2 recognize the crossroad of this trend
towards localism and minimalism, which exists along with the general movement
towards convergence, regionalization, or, in wider terms, globalization. These
contradictory trends are reflected and experienced in the same cultures and territories;
positions that encourage localism and fragmentation beside others seeking globalism
and uniformity. Within a single country, there are major differences between urban
centers and rural areas and these differences lead to distinct collective behaviors. The
interaction between the idea of individuality and the pursuit of homogeneity will play
a key role in the development of these countries. During the past decades the tension
posed by both movements has increased. On the one hand, identical phenomena are
taking place in the region’s countries while, on the other, there is a struggle for the
acknowledgment of differences.
This report will take into account both trends. I will try to provide an overview on
Alternative dispute resolution methods (ADRs) by pointing out the outstanding features
I observe from Argentina. At the same time, I will try to be respectful of conceptual
individuality. As will be seen, Latin America has been treated as a whole and,
consequently, projects did not take into consideration the individual features of various
identities which would call for specific approaches.
To undertake this analysis will entail a brief description of poverty, the weakness
of the democratic process in these countries and the lack of confidence in the courts in
Latin America. Within that framework, I will examine the conceptual vagueness of
ADRs and how they are understood around the region. My intention is to analyze ADRs
as a public policy issue related to the access to the courts. Finally, I will examine the
impact of financial assistance international policies that encouraged the development
of ADR methods as a way to improve the service of justice and to consolidate the Rule
of law.

II. Latin America. Deceptions and expectations


The transition from authoritative to democratic governments that took place by the
end of the 70's has evidenced vulnerability. The lack of institutional development in
Latin America is characterized by the lack of stable rules and foreseeable behavior3. In
terms of political practice, there is a marked predominance of the executive power over
the legislative one as a consequence of a deeply rooted presidential form of government.

M. TARUFFO, Dimensioni transculturali della giustizia civile, in Sui confini, Scritti sulla giustizia civile, il Mulino,
1

Bologna, 2002, p. 20 and those following.


2
José Carlos BARBOSA MOREIRA, O direito em tempos de globalizaçao, in Temas de dir e ito processual, Oitava
Série, Ed. Saraiva, São Paulo, 2004, p. 275 and those following.
3
Ernesto GARZÓN VALDÉZ, What is wrong with the rule of law?, in Semin ar io en Latinoamérica de teoría
constitucional y política 2000, Editores del Puerto, Buenos Aires, 2001, p. 83. He states that the issue of the relation
between law and democracy in Latin America does not so much lie in the enactment of new Constitutions but on the effective
application of those already existing by means of a legal policy enabling the establishment of a cause-effect relation between
the enactment of rules and the human behavior.
O’Donnell4 denominates as «delegating democracies» those democracies that began in the
1980s. According to him, these democracies are characterized by: (i) a strong delegation
on the executive that may take decisions without control once the election has been
defined, (ii) the attempt to depoliticize citizens except during the brief periods when
their support is sought, and (iii) a loss of the exercise of specific controls between
political institutions. Exploring the causes determining this state of affairs, Alberti5
considers that there is a problem of political culture that attempts against Latin
American democracies. He understands that delegating democracies are not a new
phenomenon but a replication of old practices within new contexts. Alberti finds that
the political culture he calls «movimientismo» is radically opposed to institutional
consolidation; it has a strong hegemonic tendency based on a friend-foe, inclusion-
exclusion logic, which has characterized the political behavior of many Latin American
countries since 19306.
The institutional problems undergone by Latin America have hindered its ability
to create welfare for the population. Poverty is widespread among some two hundred
and twenty five million people7, resulting in one of the largest rates of inequality in the

4
Guillermo O’DONNELL, ¿Democracia delegativa?, in Contrapuntos, Ensayos escogidos sobre autoritarismo y
democratización, Piados, Buenos Aires, 1997, p. 287 and those following.
5
Giorgio ALBERTI, Movimientismo and democracy: an analytical framework and the peruvian case study, in O desafio
da Democracia na América Latina, Denis, Elis, compilator, IUPERJ, p. 253 and those foliowing. See also: J. PRATS I
CATALÁ, L ide r azgos, democracia y desarrollo: la larga marcha a través de las instituciones, Institut Internacional de
Governabilitat de Catalunya, at http://wwv.iigov.org/revista/, who summarizes certain notes regarding the Latin
American past which I think useful to transcribe: No region in the world has had such a vast and intense colonial past
as Latin America: three centuries that continue to condition the present and the future have elapsed. Among colonial
experiences, only in Latin America and the Caribbean did the colonizers disarticulate or destroyed pre-existing social systems
and build new civilizations. The informal institutionality of Latin América as well as its deep civic and political culture can
n ot b e understood out of the colonial legacy context. Although two centuries have elapsed since the declaration of
independence, certain features which are almost idiosynchratic have not been able to be eliminated, which is the same reason
why they can not be abolished by a Decree. Three centuries served to uproot institutions and cultural patterns coming from
the pre-liberal, pre-modern, pre-scientific an d pr e-industrial Europe, to the Counterreformation Europe, which was
centralized, corporative, mercantilist, scholastic, patrimonial, majestic and belligerent, where the idea of freedom does not stem
from a general right but from the obtention of a judicial privilege. The Spanish colonial system has been portrayed as a “huge
net of corporative and individual privileges which depended upon the legitimacy and authority of the monarch in order to be
finally lawful and operative” (Wiarda: 1998). When this net of cronyis m, patr imon ialism and interconnected corporative
bodies intended for the social and political consolidation of the Empire and the vas t an d almost emptied Latin American
territory was disentangled, Latin American founders with Bolívar at the head, faced a hard dilemma: on the one hand,
illustrated ideals, the fight for independence, the wish for freedom, the North American e xample, all leading to adopt the
Republican form of government; and on the other hand, the realistic acknowledgement of the anarchic and destructive trends
experienced by their people. The compromise reached consisted in concentrating power in the Executive Branch, vested with
enormous emergency powers, to the detr iment of the Legislative and Judicial branches, in restricting representation to
landlords, in reestablishing corporative privileges especially in favor of the Army and the Church, and in considering new
control mechanisms in order to keep the poorest classes where they belonged (Wiarda: 1998).
6
The concept of «populism» in terms of the Latin American political democracy may be consulted on at Sergio
ZERMEÑO, El regreso del líder, in Populismo y neopopulismo en América L atina. Los complejos de la Cenicienta,
compilators MACKINNON, María Moria and PETRONE, Mario Alberto, EUDEBA, 1999, p. 363 and those
foliowing. In this regard, see also F. WEFFORT, Nuevas democracias. ¿Qué democracias?, Revis ta S ocie dad, nE 2,
Universidad de Buenos Aires, 1995, p. 93 and those following.
7
See Programa de las Naciones Unidas para el Desarr ollo (PNUD), La Democracia en América Latina. Hacia una
democracia de ciudadanos y ciudadanas, http ://www.undp.org/, 2004, p. 25 and 80.
world. Economic analyses consider that institutional weakness is one of the causes that
lead to the lack of development in most Latin American countries8.
Despite the fact that new Latin American democracies have failed to overcome
poverty and inequality, societies continue in their attempt to respect constitutional
agreements instead of resorting to authoritative experiences. Recent reports show that
six out of ten individuals prefer democracy to other political systems. However, five out
of ten would support an authoritative government if such a government were able to
solve the country’s economic problems9.
This situation has an effect on the rendering of justice by the courts and society’s
perception of them. There is great distrust of the judiciary in Latin America10, and the
support it enjoys varies depending on the domestic situation of each country. Recent
polls show that in Argentina only one out of ten individuals trusts the judiciary. The
countries that show the greatest rate of satisfaction with their courts are Costa Rica,
Uruguay and Brazil. There is a similar distrust of the other branches and, in 2002, only
three out of ten individuals trusted the performance of the legislative and the executive
powers11. I agree with Méndez that the dissatisfaction in connection with latin american
judiciaries is generalized, and that differences only involve the degree of disapproval12.
A significant element to be taken into account in the latin american context, which
must be examined simultaneously with the continuity of democratic governments and
their constitutional charters, which establish the independence of the judiciary and the

8
IDB, Report on the Latin American social and economic progress 2001, La Competitividad Motor del Crecimiento,
Inter-American Development Bank (see at http://www.iadb.org/): Shortfalls evidenced by public institutions are
probably the major cause of lack of competitiveness in Latin American countries... In the absence of a stable and respected
legal-judicial system, incentives intended to assimilate the new technologies which increase long-term investments, gear risks
of default an, trans action costs, may be absent. They can also limit the capacity of the financial system to support the
development of new investment vis-á-vis the possibility for their rights not to be respected. Inefficient governments or
environments fir for corruption may discourage foreign investment and technologies’ transfers, and may deviate the course
of resources from productive activities to activities looking for rent... Similarly, El Foro de Economía Mundial, The Global
Competitiveness Report 2002-2003, Oxford University Press (see at http://www.weforum.org/) states that public
institutions are mostly responsible for the enormous shortfalls in Latin American countries’ competitiveness. According to
the mentioned report, countries like Uruguay and Chile, which experience a high degree of confidence in their Judiciaries,
occupy important positions among the public institutions’ indicators. Among 80 countries, Chile is ranked 20 and Uruguay
19. The incidence of constitutional and economic weakness in Latin America may be analyzed in KÖNZ, Peider,
Rule of law for sustainable developmen t: reflections on the Latin American institutional GAP, Institut Internacional de
Governabilitat de Catalunya (http://www.iigov.org/revista/.
9
Ob. cit. not. 7, PNUD, La Democracia en América Latina..., p. 80.
10
The degree of mistrust amounts to 75% according to the Reporte sobre el Estado de la Justicia en las Américas
2002-2003, Centro de estudios de justicia de las Américas, CEJA, refer to http://www.cejamericas.org/. The
citizenry perception survey may be consulted on in Encuesta Latinobarómetro 2002 - Informe de Prensa, se e at
http://www.latinobarometro.org/.
11
Mass media and the Church receive answers from the population that are 50% favorable.
12
Juan MÉNDEZ, Reforma institucional: el acceso a la justicia. Una introducción, en La (in)efectividad de la ley y la
exclusión en América Latina, compilators Juan E. MÉNDEZ, Guillermo O’DONNELL, and Paulo PINHEIRO, Sérgio
PIADOS, Buenos Aires, Barcelona and México, 2002, p. 224 and following, stating that: it would be inappropriate to
depict loosely the situation of the Judiciaries all along the continent. There are great differences between the countries,
including between regions and jurisdictions of one same country. There are also clear differences of professionalism, including
honesty between the Judiciary of one country and that of another. But in essence, they are differences of degrees... At different
degrees all the branches of the Judiciaries in Latin America are in need for modernization and accommodation to new social
problems.
right to access to the courts including due process, is the adhesion to the Inter-american
human rights convention and the jurisdiction over disputes vested on the Inter-
american court. Signed in San José de Costa Rica on November 22, 1969, the Inter-
-american convention became effective on July 18, 1978, and has been ratified by 24
States13. The number of treaty adhesions or ratifications shows the acceptance to the
protection enshrined in the treaty, which basically spells out certain essential rights and
sets up two agencies with specific jurisdiction to adjudicate on matters related to
breaches by the States of the specified rights. Thus, the Inter-american commission, set
up in 1959 and later formally recognized as a body of the OAS14, along with the Inter-
-american court, which could not be established and organized until 1979, share the
delicate mission of adjudicating on matters involving breaches of protected human
rights in the cases brought either by States or citizens.
For the system to operate fully, where the balance between the roles of the
Commission and that of the court is essential, it was necessary to overcome certain
opposition of some States to acknowledge the jurisdiction of the court. In December
1998 Brazil and Mexico recognized the court’s power to resolve cases involving the
specific responsibility of any State for the breach of the rights protected under the Inter-
-arnerican convention, as of right and with binding force, and the Dominican Republic
did so in February, 1999. This was a clear sign of the court’s strengthening.
Article 8 of the Convention imposes upon the State the obligation of guaranteeing
access to the courts. The guarantees include the right of every person to a hearing, with
due guarantees and within reasonable time15, by a competent, independent and
impartial court or tribunal that has been previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the
determination of his rights and obligations of civil, labor, tax or any other nature, and
to the right to appeal the court’s decision before a superior court or tribunal.
Article 25 deals with the right of access to the courts and due process under the
heading ‘Right to judicial protection’ caption, it states that «everyone has the right to a

13
Those countries having ratified or adhered to the Convention are: Argentina, Barbados, Bolivia, Brazil,
Colombia, Costa Rica, Chile, Dominica, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica,
Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Suriname, Trinidad & Tobago, Uruguay and
Venezuela. Tr i ni dad & Tobago denounced the American Convention on human rights by a communiquée
addressed to the OAS Secretary General on May 26, 1998. Despite having subscribed the Convention on June 1, 1977,
United States has not ratified it. Canada did not subscribe it.
14
The creation of the Committee dates from Resolution VIII of the V Consultive Meeting of Foreign Ministries
of American States, held in Santiago de Chile, in August 1959. It was acknowledged as one of the main bodies of
the OAS at the Charter Modified in 1970. The Committee’s rules of 1979 solve the problem of its competence vis-á-
vis the Convention member-states and that of those countries that despite being members of the OAS, have not
ratified the Convention and are required to respect the rights consecrated in the American Declaration of Human
Rights. See T. BUERGENTHAL, R. NORRIS and D. SHELTON, La protección de los derechos humanos en las Américas,
Instituto Interamericano de Derechos Humanos, Civitas, reprint 1994, p. 44-49. We refer generally to the statements
of professor Héctor FIX ZAMUDIO, Judicial protection of human rights in Latin America and the inter-american Court
of human rights, which can be consulted on in International congress on procedural law for the ninth centenary of the
university of Bologna, Judicial protection at the national and international level, Milano, Giufre Editore, 1991 , p. 435-437
describing the origins and the competence of the Committee.

In the Gene Lacayo case the inter-american Court adhered to the position adopted by the European court by
15

holding that in order to determine the reasonability of a term a «global analysis of the procedure» must be effected.
To such end the following must be taken into account: a) the complexity of the matter; b) the procedural steps
conducted by the interested party; c) the conduct of the courts.
simple and prompt recourse or to any other effective recourse before a competent court
or tribunal, for the protection against acts that violate fundamental rights embodied in
the Constitution, the law or this Convention, even when such violations are committed
by persons acting in the course of their official duties».
These provisions come to strengthen the due process concept by describing the
different situations in which individuals must be afforded access to an impartial court
empowered to decide upon the breach of the rights16 of such individuals. This basic
liberal idea whereby rights must be protected by an impartial jurisdictional body
provided by the democratic State has been subject to analysis by both the Commission
and the court17.
In late 2002, the Inter-american court handed down its first decision in the
«Cantos»18 case holding that the Argentine State had breached the Inter-american
convention. One of the obiter dictum of the Inter-american court in the «Cantos» case
helps understand the nature of access to the courts enshrined as a human right under
the convention. It held that: «Article 8 of the Convention states that every individual has
the right to a hearing, with due guarantees and within reasonable time, by a competent,
independent and impartial court or tribunal established in advance by law, in the
substantiation of any accusation of a criminal nature, made against him or for the
determination of his rights and obligations of a civil, labor, tax or any other nature. This
article enshrines the right of access to the courts. Consequently, States cannot impose
hurdles upon those who resort to the courts or tribunals seeking determination or
protection of their rights. Any domestic rule or measure that imposes costs or hinders
in any manner access to the courts and that is not justified by the reasonable needs of
the administration of justice must be understood as contrary to the referred article 8.1.
of the convention».
In a complex scenario where deep frustrations abound, efforts to consolidate
Constitutional charters where access to the courts and respect of due process play a key
role are essential components of minimal agreements. The rule of law has not been
interrupted and adhesions to transnational rules remain in force. Thus, ADRs must be
analyzed in light of the referred values which are to be abided by and as a tool to
provide greater efficacy to such values.

16
See Juan Carlos HITTERS, Derecho Internacional de los Derechos Humanos, Vol. II, Ediar 1993, Chapter IX
whe r e the author makes an in-depth analysis of the judicial guarantees and due process in the Am e r i can
Convention. The extract of the r e ports of the Commission may be consulted at http://www.wcl.american
.edu/www.wcl.edu.pub /pub/humright/repertorio/, as well as the judgments and consulting opinions of the
Court that lay down the criteria for the interpretation of articles 7, 8 and 25 of the Convention.
17
The cases of the inter-american system referred to herein may be consulted on at http://vvww.oas.org/.
18
Decision dated 11.28.2002, Published in suplemento de Derecho administrativo del 4.4.2003, with comments
by GONZÁLEZ CAMPAÑA, Germán, Juicio internacional a la justicia argentina (tasas, honorarios, costas y plazos en
la mira de la Corte Interamericana).
III. Conceptual imprecision. The coined acronym and the indefinite boundaries between
the ADRs methods
ADR is an English acronym, coined in the United States of America. US tradition
considers that ADRs originated in a conference delivered by Pound in 1906 American bar
association annual convention on the causes of popular dissatisfaction with the
admiriistration of justice19. Given the significant repercussion of Pound’s ideas, the 1976
conference on the reemergence of the implementation of the ADRs bore his name20.
In Latin America, ADRs are referred to as resolución alternativa de conflictos (ADR),
medios alternativos de solución o resolución de conflictos (MASC or MARC) or sistemas alternos
de resolución de conflictos (SARC). The concept of jurisdictional equivalents21 developed
by Carnelutti has been set aside in the search for alternatives to litigation conducted
before a professional, independent and impartial court who is a part of judiciary of the
State and who applies the rules and regulations established by the relevant branches of
government.
Even though there is consensus as to the use of ‘alternative’ as a synonym for the
options available to bringing a case before a court, the categories included within ADRs
entail a certain ambiguity. Methods such as decision or adjudication, negotiation,
mediation, conciliation and arbitration22, may represent categories that are not clearly-
cut. Cover, Fiss and Resnik consider that the difference between these four categories
is somewhat artificial. James Jr., Hazard and Lebsdorf correctly point out that the
parties usually conduct negotiations simultaneously with litigation and that courts do
not restrict their activities to adjudicating cases but also exercise their authority to
mediate between the parties or attempt at a conciliation. Even if litigation ends up with
a winner and a loser, usually a compromise of the interests at stake takes place that
attempts to balance the situation of the parties. Finally, they believe that given the high
percentage of cases that end in an agreement or a voluntary abandonment of the action,
it might be said that resolution through the court system is the exception and not the
rule23.
An example of the relative nature of the categories of ADR methods is the meaning
attached to the terms mediation and conciliation in different countries. In Argentina,
Brazil, Uruguay and Paraguay, the term ‘conciliation’ involves a judge, whereas the
term ‘mediation’ involves the intervention of a third party who is not a member of the
judiciary. In Colombia and Venezuela, the term ‘conciliation’ is used regardless of

POUND, Roscoe, The causes of popular dis s atisfaction with the administration of Justice, see in Journal of The
19

American Judicature Society, Vol. 46, nE 3, 1962, p. 56-56.


20
See: The Pound conference: perspective on justice in the future, St. Paul, 1979. On the origin of the acronym see
in this same sense: Carmine PUNZI, Relazioni fra lárbitrato e le altre forme non giurisdizionali di soluzione delle liti, in
XII World Congress on the law of the procedures, Mexico, sept. 22-26, 2003, p. 122-203.

F. CARNELUTTI, Sistema de derecho procesal civil, translated by Alcalá ZAMORA, Niceto y Sentís Moliendo,
21

Santiago, Buenos Aires, 1944, vol. 1, p. 183.


22
Robert COVER, Owen FISS and J. RESNIK, Procedure, Foundation Press, New-York, 1988, p. 31-36.
23
James Jr. FLEMING, Jr. HAZARD , John LEUBSDORF, Civil Procedure, Foundation Press, New-York, 2001,
p. 344, point to the fact that in the United States, only 7 % of civil cases are resolved through litigation, i.e. resorting
to the court system.
whether a court is involved or not. In Ecuador, Costa Rica and Bolivia the terms
‘mediation’ and ‘conciliation’ are used interchangeably24.
As to arbitration, the Green book of the European Union Committee on ADR
methods25 does not include the term ‘arbitration’ since it understands that given the
inefficiency of court systems methods for easing conflicts that are more consensual than
recourse to a judge or an arbitrator must be sought.
The difficulties in finding the boundaries between conflict resolution through an
impartial third party and the possibility for the parties to resort to mediation as two
clear-cut opposites were analyzed by Shapiro26. He takes the example of the tradition
of Confucius’ ideas and their application in China. Shapiro examines the value of
mediation and its correlation with the value assigned to harmony in Confucius’
philosophy. In this cultural context, when parties are involved in a conflict, the
restoration of harmony is a moral duty more important than determining who is right
and who is wrong. The concept of ‘mediation’ was created based on this tradition.
Shapiro proves that despite the strength of the culture that highlights mediation’s
virtues, in practice, the resolution of conflicts by an impartial third party can not be
eluded. China’s experience, in his opinion, evidences how the notion of ‘mediation’ is
enlarged to empower the purported mediator to make decisions. The mediator in
nominal terms in fact has real decision making power when it becomes necessary to
resolve a conflict.
In a recent study, Faundez27 analyzed dispute resolution systems by applying the
rules of an authority other than the State. He describes how different communities
resort to mechanisms different from those traditionally analyzed. Twenty million
people live in the rural areas of Peru of whom 70 % belong to indigenous communities.
Most of the indigenous population lives in small communities. In the Andean region,
these are called peasant communities and in the Amazon they are called native
communities. His explanations focus on the Calahuyo peasant community that, with a
population of 372 inhabitants, is one of the 86 small peasants’ communities that speak
the aymara language. In Calahuyo, family conflicts related to property and monetary
disputes are heard by the families themselves or by the elder councils. Conflicts are
solved through conciliation by applying social harmony principles. In other Peruvian
villages such as Cajamarca, Peasants’ Rounds to control cattle theft have developed since
1970. Peasants’ Rounds have evolved and their functions are now broader; they have
been involved in family conflicts as well. Judges of the peace were established by the
Peruvian Constitution in 1823. They play an active role in the administration of justice,
different from that of professional judges. They act fundamentally as conciliators and

2 4
Adr i ana POLAN IA, L os me c an is mos de con tr ove r s ias en la Re gión ,
http://WWW.iadb.org/mif/v2/speeches/polania.html. - See also, G. S. ÁLVAREZ, La mediación y el acceso a
justicia, Rubinzal-Culzoni, 2003, p. 193-225.
25
Approved by the Committee in 2000 http://europa.eu.int/abc/doc/off/bull/es/200204/p1 0401 8htm. -
PUNZI, Relazioni fra l’arbitrato e le altre forme non giurisdizionale di soluzioni delle liti, as cited in note 20, p. 163, is in
line with its general narration of the interchangeable use of the terms mediation and conciliation.
26
Martin SHAPIRO, Courts. A comparative and political analysis, University of Chicago Press, 1981, P. 157-193.
27
Julio FAUNDEZ, Non-State justice systems in Latin America. Case studies: Peru and Colombia, University of
Warwick, 2003, http://www.grc_exchange.org/g_themes/ssaj_workshop0303.html.
they are entrusted with handing down decisions on issues related to debts, family
violence, and minor disputes. Faundez found that in Cusco, judges of the peace28 have
enormous support on account of the accessibility and informality with which their cases
are solved. Rural centers for the administration of justice established in Ayacucho in
1997 were created to rebuild civil society by means of greater access to the justice system
after the struggles against Sendero Luminoso.
The different experiences cited by Faundez differ from the mandatory protection
of rights by the State. In many cases, we find methods similar to mediation, in others
no formally State acknowledged right is applied but criteria based on equity principles
or local customs. However, one of the common features shared by the referred systems
lies in the attempt of reaching consensual solutions eluding the State’s authority. In this
sense, they are relevant to the idea of the ADRs.
In order to encompass the several optional methods available to parties to a conflict
under ADRs, the methodology proposed by Blakenbug and Taniguchi29 is useful since
they state ADR methods may be identified as opposed to the process formally regulated
by the State authority, where an independent judge intervenes. This will allow us to
examine options as varied as those examined by Faundez.
I refer again to the tension existing between the minimum expressions which
identify individuality and locality versus those that encourage convergence,
regionalization or globalization. ADRs are in line with the trend that offers several
options and expands alternatives for the resolution of disputes.
The very use of the acronym ADR reveals the reception of the global trend of
presenting alternatives to the court-based resolution of disputes. However, different
communities adapt this trend to their own cultures and social behaviors. Arbitration
may not be a part of the ADR methods available in the European Union system whilst
it is used in Latin America. Judges of the peace may be regarded as equity judges in
certain locations whilst in the Latin America they may become key players to allow
access to a certain type of court, prone to the conciliation of interests and to the
achievement of social peace. I want to underscore the converging nature of both trends
and the need to respect institutions at the local level, which is not always understood
in its real dimension.

IV. Access to justice as an issue of public policy - Solutions must consider substantive
reasons and inequalities
In order to meet the demand for access to the courts, the State must devote some
part of its public revenues to cover the costs incurred as results of the maintenance of
the court structure. Since the State’s ability to fund total costs is insufficient and the cost
of the provision of justice competes with other social needs such as health and

28
There are approximately 4,000 judges of the peace located mostly in rural areas.
29
Erhard BLAKENBURG and Yauhei TANIGUCHI, Informal alternatives to and within formal procedures, in 8th
World conference on procedural law, justice and efficiency, Utretch, 1987, vol. II.
education, priorities must be set. In the opinion of Peña González30, the State is at a
crossroads as to either providing more resources to justice, aimed at expanding it in
order to solve the greatest amount of conflicts possible, or implementing alternative
mechanisms that will substitute for the direct State’s actions. In his opinion, given the
current management routines, the creation of each new court results in a decreasing
marginal utility.
Justice is a public good competing with other equally relevant social demands.
Consequently, it is correct to set priorities and plan strategies that meet social demands
competing vis-à-vis the lack of resources. From the mentioned standpoint, the justice
system, like all the other areas of the State, must optimize its response and for that
purpose, it is reasonable to ask which would be the most efficient option to address it,
since it is an issue of public policy nature. Declaring that the State will comply with its
obligation to guarantee access to the justice system does not suffice. The resources fit to
meet such goal must be envisioned. Within such resources, I include the answers that
may be offered as options to conflicting parties.
Offering access to ADRs on account of their greater efficiency in terms of conflict
resolution implies that their implementation is not only based on the State’s
impossibility of allocating resources which are insufficient for all potential claimers, but
in highlighting that substantive reasons justify them. Thus, it may be said that methods
that leave resolution of disputes in the hands of the parties allow for the development
of solutions that a court adjudicating the matter would hardly device. The intervention
of a magistrate of the peace, who being closer to the neighbors may result in a solution
better than one focused on a debate limited to the statutory side of the conflict.
Arbitration may offer additional advantages to certain persons. The greater flexibility
and expediency, the reduction of costs or the benefit of achieving greater confidentiality
on matters that parties do not want to be disclosed, may justify preference of this
mechanism over a judicial process31.
As Cappelletti32 states, the legal solution to the controversy may encourage
differences and passions, while a conciliatory justice may be more effective; it may
allow for the parties to come closer and find a solution without winners or losers,
privileging understanding and the bilateral modification of conducts.
However, the implementation of ADRs cannot set aside the main duty with which
the State is charged: guaranteeing access to justice and due process. This is an essential
basic requirement of the Rule of law and a basic human right. ADRs cannot replace

30
Carlos PEÑA GONZÁLEZ, Notas sobre la profesión jurídica y el acceso a la justicia, en Seminario Internacional
Nuevas formas de resolución de conflictos y el rol del abogado, La Habana, March 3-4, 1998, Editorial Universitaria de
Buenos Air e s, 1998, p. 15 and those following. The same author develops similar arguments in Notas sobre la
justificación del uso de sistemas alternativos, en Revista Jurídica de la Universidad de Palermo, 2002, nE 1 and 2, 1997, p.
109-132.
31
Juan Enrique VARGAS, Problemas de los sistemas alternos de resolución de conflictos como alternativa de política
pública en el sector judicial, in Sistemas Judiciales, Centro de estudios de justicia de las Américas (CEJA), Año 1, nE
2, 2002, p. 11-19.
32
Mauro CAPPELLETTI, Dimensioni della giustizia nelle società contemporanee, Il Mulino, Bologna, p. 90-93. -
See Vittorio DENTI, Un progetto per la giustizia civile, Il Mulino, Bologna, 1982, p. 317 and those following. -
HITTERS, La justicia conciliadora y los conciliadores, in La justicia entre dos épocas, Librería Editora Platense, Argentina,
1983, p. 159-180.
court based proceedings as the final protection of rights. They may supplement the
State’s response since they are a lawful option, given that in some cases they provide
larger benefits for the parties to a conflict. Presenting the problem as one in which to
decide between a judicial proceeding or ADRs is a mistake. Alternative methods show
a limit to protection and are inadequate in many cases.
The weaknesses of ADRs have been pointed out by Fiss33, when he stated that ADRs
advocates rely on an alleged equality, which most of the times is non-existent. The
disparity of resources between conflicting parties is an element that may result in the
weakest parties’ rights impaired. In the tension of opposite forces presupposed by a
conflict, the weakest party will find itself less protected under systems different from
the judicial one, where disadvantages may not be adequately compensated. Fiss states
that there is no legitimate consent before the mentioned inequality. He states that the
judicial proceeding must be envisioned according to its incidence on the public debate
over general interest issues. By means of north-american law34 examples, which we also
find in other countries under modern democracies35, he underscores the role of the
judiciary in the resolution of social issues that go beyond individual cases.
An adequate public policy of the justice system demands examining into the issue
of inequality among conflicting parties. As clearly developed by Damaska36, the State
may act in a reactive way (or one of laissez faire), or assume an active role (or Welfare
State). The development of a society and the ability or disability of the persons that
compose it to debate in positions of relative equality, are an aspect that deserves to be
considered. In situations where a marked inequality may be observed, by being
reactive, the State accentuates advantages for those better positioned and also
disadvantages in the case of those less favored37. So, a justice system policy must offer
different opportunities that accommodate to social demands. The characteristics of each
society will determine the nature of the options to be offered by the State. Rural or

33
Owen FISS, Against Settlement, in Yale Law Journal, 1984, 93, p. 1073; also see Robert COVER, Owen FISS and
J. RESNIK, Procedure, ob. cit., not. 22. Published in the Spanish language as, Contra el acuerdo extrajudicial, by Revista
Jurídica de la Universidad de Palermo, Año 3, nE 1, 1998, p. 59-70.
34
FISS, ob. cit., not. 31, points to the relevance of decisions such as Brown vs Board of Education (347 U.S. 483,
1954, 349 U.S. 294, 1955) on racial discrimination.
35
In Argentina, for example, in the Sejean case, (Fallos de la Corte Suprema, Book 308, vol. 2, 2268, 1983), the
Supreme Court decided on the inconstitutionality of the legislation that prohibited the dissolution of the marriage
bond, which was the problem affecting a major share of the population.
36
Mirjan DAMASKA, The faces of Justice and State Authority: A comparative approach to the legal process, 1986,
Yale University, translation of MORALES VIDAL consulted on, Andrea y RUIZ-TAGLE, VIDAL, Las dos caras de
la justicia y el poder del Estado. Análisis comparado del proceso legal, Editorial Jurídica de Chile, 2000, p. 137. DAMASKA
wanders whether conciliation or confrontation methods should be adopted for the resolution of controversies. Again, the
answer must come from the nature of the reactive S tate. His idea of self-management basically makes him trust the civil
society in connection with the resolution of disputes for, provided the litigants belong to the same association or the same social
institution, it wil be better for disagreements to be resolved internally. Within that framework, it may be understood that the
resolution of conflicts involves the s e ar ch for intermediate reconciliation or mediation positions between litigants: appeals
based on shared goals or urging to mutual sacrifice in the furtherance or valuable relationships regain sense. Resorting to a
State forum is thought of as the last option, when the less ‘drastic’ private methods have failed. But when an individual takes
his/her case before a judge, this act entails the unwillingness to subordinate such case to shared values and objectives or to
acknowledge an intermediate arena.
37
James Jr. FLEMING, Geoffrey HAZARD Jr. and John LEUBSDORF, Civil procedure, ob. cit., not. 23, p. 344-
350, agree to the fact that ADRs offer more benefits to the parties with the best resources.
urban areas with high poverty levels, urging for the mending of the social fabric,
demand solutions different from those applicable to not-so-ailing average sectors of
society or those responsible for the economic development.

V. Crisis of confidence in the justice system and alternative mechanisms as part of a


reform plan - Initiatives for international assistance and ADRs
At the end of the XX Century, Latin America started a democratic process intended
to return to democratic forms of government. The countries of the region had endured
authoritative experiences and their economies evidenced a clear lack of development.
The renewed effectiveness of constitutional charters, which institutional structure had
been restricted, encouraged hopes related to the equality before the law and the idea
that all the inhabitants had the possibility to access the justice system. Kernel shortfalls
in judicial systems, evident both in their numeric and structure insufficiency, and the
constant affection for formal characteristics in the proceedings, stemming from Spanish
laws rooted in colonial rights and from the legislation in force in the 1900's, evidenced
that it was essential to make a change oriented to offer an effective provision of justice
system services. It could be said that the objective of such goal was to enjoy a better
quality of democratic life by demanding a better administration of justice. At the same
time, delays in the economic development made everybody wander as to how to start
growing again. To such end, a course characterized by the deregulation of economies
and the intent for insertion into globalized commercial interchange was taken. In order
to attain a sustainable economic development, investments demanded legal certainty.
As correctly pointed out by GARRO38, there was more than one reason to be concerned
about access to the justice system. Apart from the hope of fulfilling constitutional
objectives, the demand for certainty from economic agents had to be met.
The demand for more sound rules and for a justice system capable of handling the
conflictivity posed by change from a closed economy controlled by the supremacv of
the State, to an open one where private capital plays a key role was tried to be met by
means of increased judicial budgets and a greater number of courts. Reform projects
were developed with the intention to improve judicial proceedings, the way in which
courts were organized, and analyze the incorporation of ADRs. Based on consensus as
to the need for improving the judicial institution aimed at shoring up the legal activity
in Latin America, the region received financial assistance to implement reforms.
Between 1985 and 1995, the United States agency for international development
(USAID) granted over US$200 million for the modernization of the justice system of
Costa Rica, Honduras, Guatemala, Salvador, Panama, Argentina, Chile, Uruguay,
Bolivia, Colombia and Paraguay39. During the 1990's, the World Bank (WB) took part
of a legal and judicial reform process. Its intervention was originated in the notion
according to which the process had to cover a general scope, encompassing critical40

38
Alejandro GARRO, El acceso de los pobres a la justicia, in La (in)efectividad de la ley..., ob. cit., not. 12, p. 278-303.
39
Jorge CORREA SUTIL, Reformas judiciales en América Latina: buenas noticias para los desfavorecidos ?, i n La
(in)efectividad de la ley..., ob. cit., not. 12, p. 260 and those following.
40
WB Legal Vice-presidency, Initiatives on Legal and Judicial Reform, Edition 2004, in http://www.grc-
exchange.org/info_data.
legal and judicial reforms in order for development to be sustainable. Financial aid for
the region reached US$121 million41. The evaluation of the WB project on legal and
judicial reform led to these conclusions : i) it is a considerable time-consuming process;
ii) the initiative must come from each State as an answer to specific needs; (iii) it
requires a high degree of commitment by governments; iv) it must take a participatory
approach embracing all of the sectors, especialiy the weakest ones and those more prone
to be excluded; v) the transplant of legal systems is not advisable; vi) judicial reforms
are difficult to evaluate in the short term42. Among WB’s conclusions, it may be found
that the legal reforrn does not exhaust itself in the revision of existing legislation and
the introduction of new regulations; measures must also be taken in furtherance of the
adequate operation of institutions and access to the justice system43.
During the 1990s, the transition to democracy was materialized in almost all the
countries of region. At that time, ideas encouraged the opening of markets and trusted
in a greater welfare as a result44. Most of the reforms were aimed at providing business
transactions with clearer rules without paying the necessary attention to political culture
issues which should have been more deeply debated. As later evidenced, reforms urged
for the participation of wide social sectors and a greater commitment by the
governments. At least, the assistance processes that enjoyed the participation of USAID
and the WB enabled to identify the absolutely relevant nature of soundness of the
institutional system.
The program intended to their promotion and implementation that the IDB
undertook as of 1995 through the FOMIN, had a particular impact in the development
of ADRs in Latin America. Eighteen projects for a total hovering US$ 20 million were
financed45 through such sponsorship. The strategy consisted in encouraging the
adoption of mediation and arbitration centers to offer the private sector the possibility
to solve disputes. So, the rest of the countries tried to replicate the model developed in
Colombia46 by means of the Bogotá chamber of commerce, which sponsored the creation
of Arbitration and mediation centers. One of the greatest hits of the program is having
publicized the ADRs in a region where minimum resources in this regard were
available. A great number of persons were trained and the advantages of the ADRs
were informed. One of the challenges consists in gauging the future incidence of such

WB Legal Vice-presidency, Initiatives on Legal and Judicial Reform, Edition 2004, in http://www.grc-
41

exchange.org/info_data, p. 58-67 E.
42
WB Legal Vice-presidency, Initiatives on Legal and Judicial Reform, ob. cit., not. 32, p. 13-14.
43
WB Legal Vice-presidency, Initiatives on Legal and Judicial Reform, ob. cit., not. 32, p. 16.
44
Jorge CORREA SUTIL, Reformas judiciales en América Latina: buenas noticias para los desfavore cidos ?, in La
(in)efectividad de la ley...ob. cit., no t. 12, p. 268 and those following. Applying a critical vision as to the way of
implementing reforms, he states that: a preliminary and not very optimistic conclusion would be that judicial reforms being
currently enforced in Latin America are definitely more linked to the openness of markets that to any other factor. They are
not being provoked by groups at disadvantage and are not targeted to such groups. Only some minor lateral effects for the
benefit of disfavored groups could be expected. However, such conclusion must be somewhat shaded, since too much emphasis
is laid on the judicial reform and too little in the kind of transformation those reforms could ultimately produce.
45
FOMIN - Métodos Alternos de resolución de controversias comerciales: el camino a recorrer para América Latina y
el Caribe, see address of the IDB Chairman, Enrique IGLESIAS, at http://iabd.org/mif/v2/speeches/iglesias.html.
46
In Colombia, the chamber of commerce coordinates 70 centers. The Argentine chamber of commerce is
supporting the development of 32 centers. In Brazil, 45 centers are already operating.
effort. One of the most outstanding weaknesses of the program lies in the uniform
transplant of one identical model into different realities.
Against a complex backdrop marked by an increasing mistrust of the judiciary, a
clear sign that I have already mentioned, a reality that emerges quite clearly, the
condition of the justice system is a matter of concern in Latin America. Summits of
justice ministers or attorney generals since the year 199747 have endorsed the
incorporation of ADRs and agreed that mechanisms allowing for easy and timely access
to the justice system must be put in place. Probably, irrespective of initial goals and
mistakes in the assistance provided, the debate process that acknowledges the urgent
need to overcome the present state of affairs could in itself have been the principal
benefit. Now, everything depends upon the kind of analysis made as to the path taken.
A skeptical look will only perceive errors. Another look, a constructive one, dyed with
a more responsible spirit since behind abstractions we can ultimately find people that
suffer failures and aspire to overcome them, understood as the momentum towards
improvement, will lead to rethink everything as a hits and mistakes account.

VI. Development of ADRs in Latin America. The impact of ADRs support programs
As from the last decade, a change vis-à-vis the ADRs may be observed in the region
and in the orientation of the region’s governments, which tried to strengthen the private
initiative through economic deregulations, fostered their publicity and urged legislative
reforms and the development of institutions encouraging their use. Publicity in
connection with the ADRs advantages and the training of those operating them
determined attention to focus on them and their benefits to be perceived. Independence
gained by them as a result of their retirement from Codes of procedures, which mostly
maintained the influence of Spanish legislation from the 1900's, granted them greater
effectiveness. On the other hand, dissatisfaction for the response of the judiciary
increased the interest in their development.
One of the main features of such movement in Latin America was that ADRs
focused on mediation, conciliation and arbitration. Without intending to conduct a
detailed follow-up of the ADRs experience in the seventeen Latin American countries,
I will only deal with some of the reforms. First, I will briefly refer to mediation and
conciliation and then I will address some common features of arbitration.
In Argentina, as from 1992, the National mediation plan48 was put in place. At an
initial stage, a pilot test was conducted whereby mediation was employed as a
supplement of civil courts. In 1995, a law was passed establishmg mediation as a
mandatory49 pre-judicial instance and its scope of action was set for civil and
commercial courts in Buenos Aires. The following year, the law on mandatory

47
See developments at http://www.oas.org/juridico/spanish/quintareunion_de_moj.htm
48
Order 1480/92 declared mediation a national interest issue and characterized it as an informal, voluntary
and confidential process applicable to conflict resolution.
49
Law NE 24,573. The law provided that mediation would be mandatory during a five-year term. In year 2000,
such term was extended another five years.
pre-judicial conciliation in connection with labor50 conflicts was passed. The National
department of participative methods of the justice system counts with 4,000 mediators
and 180 labor51 conciliators registered. According to official records’ reports, 80 % of
civil cases and 70 % of commercial ones are settled at a mediation52 stage.
The 1991 Colombian constitution refers to the power of individuals to act as
conciliators53. In that same year, the legislation adopted a program to alleviate the justice
system through conciliation under equity54 principles, which was later modified in
199855. Almost 129 centers were created the majority of which depend on universities
and chambers of commerce. Reports evidence that initial momentum has weakened for
the creation of centers has been visibly reduced. At the end of the 1990's the number of
conciliators in equity totaled 1,500, with 93,000 cases heard56. The ministry of Justice is
charged with monitoring the operation of conciliation and arbitration centers.
As of 1993, Costa Rica developed the national plan for judicial reform, within which
the Supreme court launched the Program on alternative conflict resolution. In 1997,
legislation dealing with conciliation, mediation and arbitration was enacted, which
includes a declaration on the right of citizens to an education for peace and for the
resolution of patrimonial conflicts by private57 means.

50
Law NE 24,635.
51
See Reporte sobre el estado de la justicia en las Américas, 2002-2003, ob. cit., not. 10, on Argentina.
52
Data consigned in Reporte sobre el estado de la justicia en las Américas, 2002-2003, ob. cit., not. 10, Report on
Argentina. For an analysis on the relief experienced by courts as a result of mediation may be consulted on in
Gladys Stella ÁLVAREZ, La mediación y el acceso a la justicia, ob. cit., not 24, p. 290-298. As to provinces, mediation
was adopted by the following ones: Chaco, Jujuy, Santa Fe, Santiago del Estero, Mendoza, Córdoba and Neuquén.
In 1994, the Province of Buenos Aires passed law NE 11,453 on family courts and proceedings. Among its
institutions, I want to highlight the role of conciliators or counselors on family law issues that act as an intra-
procedure stage. See Roberto BERIZONCE, Patricia BERMEJO, and Zulma AMENDOLARA, Tribunales y proceso
de familia, Librería Editora Platense, 2004.
53
Article 116. Article 247 of the Colombian Constitution authorizes the appointment of Judges of the peace
entrusted with solving individual conflicts according to Equity principies.
54
Law NE 23 passed in 1991. See Betsy PARAFÁN, and Celia SPAGGÓN C, La justicia comunitaria dentro de
la informalización de la justicia en Colombia durante la última década, in Sistemas judiciales, ob. cit., not. 31, p. 58-77.
55
Law NE 446. Such law also regulates on the operation of the peace justice system.
56
See Reporte sobre el Estado de la Justicia en las Américas 2002-2003, ob. cit., not. 10, Report on Colombia.
57
Law NE 772. See Section 1.
Specific legislation on mediation and conciliation was enacted in Bolivia 58,
Ecuador59, Perú 6 0 and Venezuela61. These examples evidence a trend toward the
adoption of ADRs within the Region. The tendency imposed by the model so
implemented envisioned certain independence of mediation from the judicial instance
and the development of its own techniques different from the ones traditionally
employed by the judges to achieve intra-procedure conciliation. One of the goals of the
reforms was the arrival by the parties to a private settlement over the dispute.
Judges of the peace, which were long-established in Latin America, were mostly
disregarded. The european tradition of pacifying judges from Holland and the idea of
a magistrate of the peace brought by Voltaire in the French Revolution of 1790, also
adopted in Spain by the Fuero Juzgo, that regulated on the role of the peace envoys -pacis
adsertores- who had to achieve peace62 when so entrusted by the king, was widely
accepted in Latin America. In Argentina, judges of the peace gradually lost their
conciliatory role. As judges were required to hold a law degree and were assigned
competence in minor conflicts, their primary objectives were modified. Such objectives,
as explained by Berizonce, were aimed at making conflict resolution less formal, less
specialized, less burdensome and less stiff as to formal requirements63. The 1830
Constitution of Uruguay incorporates the justice of the peace as a necessary conciliatory
instance previous to the legal process. The current wording of the Constitution64 set
forth the mandatory nature of the previous conciliatory instance before a magistrate of
the peace. Despite its mandatory nature, conciliation gradually lost its power and
became a mere formal procedure65. In 1998, the conciliatory competence of judges of the
peace was modified. Legislation empowered the Supreme court to assign courts of the

58
Law NE 1770 of 1997.

The Constitution of Ecuador of 1996 establishes the adoption of ADRs, and in 1997 the law on domestic and
59

international mediation and arbitration was enacted.


60
Law NE 26,876 on mandatory out-of-court conciliation, which in 2001 was only partially enforced. See
Eduardo CASTILLO CLAUDETT, Dossier sobre resolución alternativa de conflictos en América, in Sistemas Judiciales,
ob. cit., not. 31.

The Constitution assigned to ADRs a constitutional status in article 258 by providing that the law will
61

promote arbitration, conciliation and mediation and any other means designed for conflict resolution. Labor organic
law regulates on mediation and conciliation.
62
Volume II, Chapter I, XV.

Roberto BERIZONCE, Derecho Procesal Civil Actual, Abeledo-Perrot, Buenos Aires, 1999, p. 613-631. - Also
63

see Gualberto SOSA, Instituciones de la moderna justicia de paz letrada, Librería Editora Platense, 1993.
64
Article 254. No civil legal action may be commenced unless it is previously proved that conciliation before
the justice of the peace has been previously sought, except with the exceptions provided by law.
65
See Martha JARDI ABELLA, Recientes tendencias en la posición del juez. Informe nacional uruguayo, ob. cit., not.
56.
peace an exclusive competence on conciliation66 related matters. In Peru, judges of the
peace that are not lawyers enjoy a significant importance. There are over 4,000 judges
of the peace that belong to a community that lacks legal formation and intervene in the
resolution of minor conflicts by applying customs and usages67.
As to arbitration, Latin American countries’ legislation prior to the 1990's
incorporated it to their codes of procedures and presented two deficiencies that
hindered their application. First, the arbitration clause lacked efficiency and evidenced
some difficulties at the time of composing the arbitration panel unless the arbitration
clause was executed before a court. Second, the award had to be confirmed by the court
in order to be enforceable.
The Commercial inter-american arbitration committee (CIAC) was created in 1933.
Its activity had been moderate until the last decade, when it sponsored the developrnent
of arbitration before the chambers of commerce of the region’s countries. The main
consequence of the mentioned sponsorship, which was coordinated with the IDB and
WB projects referred to above, has been the creation of centers devoted also to
arbitration. This led to a new form of institutional arbitration to which different public
and private sectors adhered68. Legal reforms were undertaken following the Model law
posed by UNCITRAL. I want to mention the cases of Mexico (1988), Colombia (1989)69,
Perú (1996) and Venezuela (1998)70 as an example of the mentioned reform movement.

66
Law NE 16,995. CALVO CARBALLO, Loreley, Pasado, presente y futuro de la conciliación e n Ur u gu ay,
comment on the scope of the reform in XVII Jornadas Iberoamericanas de Derecho Procesal, Costa Rica, 2000, vol. 1,
p. 285-301. From like author, Jueces conciliadores. Asistencia letrada obligatoria en las instancias de conciliación, arbitraje
y mediación. Cre ación de la instancia de mediación, en Estudios de Derecho Procesal en homenaje a Adolfo Gelsi Bidart,
F undación de Cultura Universitaria, Uruguay, 1999, p. 592-606. See Luis TORELLO, Mediación, negociación y
conciliación, Poder Judicial, Suprema Corte de Justicia, 1997, laying the grounds for the reforms later implemented.
67
Article 152 of the 1993 Constitution. Article 149 enshrines legal pluralism and speaks favorably on the
experience of the Peasants Rounds studied by FAÚNDEZ (ob. cit. not. 27) and judges of the peace. The mentioned
section provides that the authorities of peasant and native communities, with the support of peasants’ rounds, may exercise
jurisdictional roles within their territories according to the principles of customary laws provided the y do n ot violate
fundamental rights of the people. The law sets forth the forms of coordination of such special jurisdiction with judges of the
peace and further instances of the Judiciary. See Reporte sobre el Estado de la Justicia en las Américas 2002-2003, ob. cit. not.
10, Report on Perú.
68
See Roberto BERIZONCE, El arbitraje institucional en iberoamérica, en XVII Jornadas Iberoamericanas de Derecho
Procesal, Costa Rica, 2000, vol. I, p. 125-138.
69
Executive Order 2279 of 1989 was amended in 1991 (Executive Order 2651) and in 1998 (Executive Order
1818). In 2002 a bill of general arbitration was submitted to the Colombian Congress attempti ng to copy the
UNCITRAL Model Law. This triggered heavy debate. The procedural institute in Colombia (Instituto Colombiano
de Derecho Procesal) informed to Congress that the bill was highly inconvenient due to the freedom with which
arbitrators were vested as regards the conduct of the proceeding, they were free to choose the mechanisms they
deemed most convenient. The clashing positions of BERNAL GUTIÉRREZ, Rafael, Reflexiones sobre el arbitraje en
Colombia, p. 253-273 and GAMBOA SERRANO, Rafael, Estado actu al de l ar bitraje en Colombia, p. 275-317 may be
consulted in the publication XXV Congreso Colombiano de Derecho Procesal, 2004. See also the reply to the position
held by BERNAL GUTIÉRREZ formulated by BEJARANO GUZMÁN, Ramiro, El sofá del arbitraje, in Revista del
Instituto Colombiano de Derecho Procesal, n° 30, 2004, p. 237-244.
70
See Ricardo HENRÍQUEZ LA ROCHE, Conciliación y arbitraje. Presente y futuro (Relación nacional venezolana),
in XVII Jornadas Iberoamericanas ... ob. cit. not. 68., vol. I, p. 303-315. A general overview of arbitration in Ibero-
America may be consulted on in Jorge Antonio ZEPEDA, Relato General, in XVII Jornadas Iberamericanas..., p. 9-87.
Brazil amended its arbitration legislation in 1996, law n° 9, 307.
The countries of the region ratified the New York Convention (1958) on the
acknowledgement and execution of foreign arbitration awards with the exception of
Brazil, Nicaragua and the Dominican Republic. The inter-american convention on
international arbitration (1975) remains only to be ratified by Venezuela.
In the field of arbitration, as in the case of mediation, we find a clash of traditions,
ideas and projects. The UNCITRAL Model law represents the trend towards uniforrnity
in a global context were frontiers are becoming blurred. Trade developrnent is in a
worldwide scale and production and business organization forms call for uniform
proceedings. The latin american region is in need of new job opportunities and the
generation of wealth. One of the hurdles that must be overcome in order to attract
investments to the region is the weakness of institutions. The lack of stable rules abided
by throughout time affects foreseeability. The problems faced by the judiciaries are also
a negative element that increases the risks of investments. The advantages of arbitration
lie in the possibility of avoiding the difficulties of litigation. In this sense the countries
of the region should particularly focus on the regulation of arbitration, taking into
account its own traditions, the behavior of the users of the systems and the
independence and qualifications of the arbitrators. Failure to do so involves two
dangers. The first one consists in cost increases or in the lack of investments. The second
one in the risk that escaping from litigation by electing arbitration may bring about a
subsequent escape to international arbitration. This can be evidenced by the increase in
the number of cases brought and resolved by the International court of arbitration of the
International chamber of commerce (ICC).

VII. Conclusion
ADRs and the justice system require to be analyzed together. The justice system
cannot find a solution to all of the conflicts on account of its own limitations and its
inadequacy to restore certain situations. ADRs are simply an alternative to the basic
human right of access to justice and due process. The justice system and ADRs are
complementary and must be used for the benefit of people as an option to mitigate
diverse situations.
Both of them answer to an idiosyncrasy particular to each society. The goal of
uniformity may be frustrated by positions and standpoints as regards reality that must
be respected. Transplanting models without consensus is usually the road to failure.
Vis-à-vis the lack of confidence in the justice system evidenced by the regions’ countries,
the reforms needed must be debated to reach consensus.
Latin America has struggled to maintain the Rule of law. Its greatest challenge now
is to strengthen it. In order to follow that path, the improvement of the justice svstem
and the implementation of alternative options are a priority.