Key takeaways

The content of the reform details the concept of Restorative Justice, which seeks not only to solve the conflict but also to restore those affected in their emotional, material, and social spheres. To this end, it regulates issues to ensure the integration of the parties, avoid future conflicts, help them understand the impact of the decisions made in the face of the conflict, and seek to develop a plan to try to address the consequences of the disputes.

The Law will standardize how ADR must be processed throughout the country, for which both Congress and the states have one year to issue regulatory updates under the provisions of the Law. If they do not comply within that period, the Law will directly apply to them.

In more detail

Main contributions of the reform

• It is envisaged that ADR will be processed through information and communication technology or online systems.
• Regulations are specified on the Public Center for Alternative Dispute Resolution Mechanisms, both of the Federation and of the Judicial Powers of the States of the Republic, as well as specific issues in Administrative Justice. The operation of the ADR Private Center is also detailed.
• Issues of Restorative Justice Processes and Therapeutic Justice Processes are regulated.
• The reform includes details on the Registry of Facilitators and the National Platform of Facilitators, as well as a System of Agreements and the respective National Agreement Information System.
• The non-jurisdictional Online Dispute Resolution procedure is introduced.
• The Law emphasizes processes aimed at producing restorative results, which should include not only the damage reparation but also the responsibility recognition, the restitution of rights, or service to the community under an expectation of non-repetition.
• There is a focus on collaborative and multidisciplinary procedures, depending on the needs of the conflict. There is a trend towards humanizing alternative justice and preventing the risk factors perpetuating conflict.

Specific issues of reform

1. About the National Council for Alternative Dispute Resolution Mechanisms

The Council is the highest ADR public policy authority. Its powers include issuing guidelines for training, evaluation, certification, renewal, suspension, and revocation of facilitators; issuing guidelines for creating the National Platform of Facilitators, as well as the Systems of Agreements and collaboration with institutions to deliver training courses.

The Council must meet in regular session at least four times a year. Their sessions may include facilitators and specialist practitioners, including civil society, business chambers, bars, and professional associations.

Based on the Guidelines issued by the Council, the different Judicial Branches must, inter alia, certify and regulate public and private facilitators, supervise their performance, and promote the use of ADR as a fundamental right in the country.

2. From the Alternative Dispute Resolution Dispute Resolution Centres

The Alternative Dispute Resolution Dispute Resolution Centres are auxiliary bodies of the Judiciary. Among its faculties is to have the necessary infrastructure for the processing and provision of ADR services. They are also required to maintain the Directory of Facilitators and provide technical assistance, among other responsibilities.

All agreements drawn up after processing an ADR proceeding in the private sector must be submitted to the System of Agreements to achieve their legal effects. The Centres, in turn, must submit the information related to the corresponding agreements to the National Information System of Agreements.

3. Facilitators and their Certification

The Law sets out all the duties and obligations of facilitators. A facilitator is any certified natural person who promotes communication and compromise for resolving disputes using ADR. They must determine whether the cases are likely to be resolved by ADR and, if so, conduct the mechanism by the principles and provisions of the Law. They are also responsible for drafting the agreements reached by the parties.

In specific cases, facilitators have public faith. They may also incur civil liability for the agreement's deficient or negligent preparation or registration. In any case, they must maintain the confidentiality of their procedures.

Facilitators may be suspended or revoked from their certification in certain cases established in the Law.

4. From the Registries and the National Platform

The Judicial Powers must have a Registry of Facilitators, which will verify the procedures for canceling the registration of facilitators and the management of the National Platform of Facilitators.

5. On the Processing of ADR

The Law regulates the processing of ADR and specifies that any person, natural or legal, may request its processing before a Public or Private Center and the information that must be contained in its application. Applications that do not derive from a judicial procedure may not exceed three months, with certain exceptions. If they do come from a jurisdictional process, the parties must be informed of the suspension of the procedural deadlines involved, according to the applicable procedural legislation.

The Law contains specific details on the information that facilitators must provide to ADR participants, reporting requirements to jurisdictional authorities, deadlines for processing; details on the meetings between the facilitators and the parties, grounds for early termination of the mechanisms, and the rights of the participants, among other issues.

6. About Restorative Justice and its Processes

Restorative practices or processes will address the individual and collective needs and responsibilities of the parties involved in a conflict, seeking to achieve their integration into their development environment. The objective is to restore the affected person emotionally, materially, and socially; avoid future disputes; help to understand the impact of decisions made in the face of conflict; generate safe spaces for social and community integration; and assist in resolving disputes in the school environment.

Restorative practices aim to produce "restorative results," understood as the recognition of responsibility, the reparation of damage, and the restitution of rights or service to the community, always under an expectation of non-repetition, aimed at meeting the individual and collective needs and responsibilities of the parties. Public and Private Centres, within the scope of their respective competencies, must offer restorative practices. In addition, restorative processes may involve multidisciplinary teams according to the needs of the conflict.

7. Online Dispute Resolution

Online conflict resolution is related in its definitions to the new National Code of Civil and Family Procedures. Issues such as open collaboration, intelligent contracts, automated systems, and decentralized justice systems are defined. In addition, the concepts of entire knowledge and algorithmic transparency are applicable.

The chapter stipulates the possibility of conducting ADR procedures online, which requires the parties to agree to this using an arbitration clause, independent agreement, or before the facilitator.

8. The Convention and the System of Conventions

The Law details the requirements that must be contained in the agreements resulting from ADR procedures. The intervention of a lawyer is necessary for the technical-legal review of the agreement to be recorded.

Agreements duly drawn up, registered, and signed in the System of Agreements shall have res judicata effect.

Agreements that involve the rights of children, adolescents, third parties, victims of violence, or vulnerable persons must also be submitted to the Public Center for Alternative Dispute Resolution Mechanisms for review and validation. Only agreements that involve the obligation to provide maintenance may result in the closure of the registry. The facilitator shall forward the agreement signed by the parties to the Convention System.

9. Facilitators and the ADR process in the administrative field

The requirements in the Law to be a facilitator include, among others, being Mexican, duly passing the evaluations, and, for the Court of Administrative Justice, holding the position of secretary of agreements, designer, or equivalent. They must always adhere to the procedure and provisions in the applicable laws.

The Law specifies how the processing of ADR mechanisms must be requested inside and outside contentious-administrative procedures and the cases in which they will not be processed.

10. The Liability and Sanctions Regime

The heads of the Public Alternative Dispute Resolution Centers and the public and private facilitators are subject to the system of responsibilities for infractions and application of sanctions. The processes of responsibilities will be in charge of the Council of the Federal Judiciary or the corresponding states.

The infractions provided for in the Law are the reprimand, financial penalty, reparation of economic damages, suspension and revocation of the certification, and disqualification, according to the severeness of the conduct.

Relevant transients

The Federal Congress and the states will have one year to issue the corresponding regulatory updates in applying the Law. Failure to do so will result in direct application of the Law.

Once the Head of the Public Center for Alternative Dispute Resolution Mechanisms of the Federal Court of Administrative Justice has been appointed, he or she must summon the persons who will make up the Council of Administrative Justice within a period of ninety calendar days from its designation for its installation. The Judicial Powers, through the Councils of the Judiciary or equivalent instance, must carry out the necessary actions to create and operate the Registry of Facilitators and the System of Agreements in their respective area of competence.

Please get in touch with the Baker McKenzie contacts provided above to learn more and discuss what this development could mean to you.