-Liliana Amione*
Abstract
This article examines the current global challenges of technology implementation in Alternative Dispute Resolution (ADR), highlighting the difficulties of mediating in times of the “new normal” arising from the COVID-19 pandemic. It focuses mainly on the analysis of the Mandatory Pre-Judicial Mediation System, prior to the traditional court process, in the Province of Santa Fe, Argentina.
I. Introduction
On March 11th, 2020, the World Health Organization (WHO) declared COVID – 19 outbreak a global pandemic. Since then, the states had adopted preventive measures to contain and mitigate the spread of the virus and the health impact to safeguard the collective right to public health.
In this sense, the strategies implemented by the countries involved isolation and social distancing, the prohibition and/or less movement and physical appearance to places of public access, and border restrictions on the mobility of people and goods. At the same time, it was necessary to guarantee the normal development of economic activities and the regular provision of goods and services.
These measures were provided on a temporary basis since they restricted the exercise of human rights such as the right to work, to transit, to reside and to leave the territory, and their limitation must always be assessed against the principles of reasonableness, proportionality, temporality, necessity, legality, and be based on reasons of public order, security, and public health, as it emerges from the international and inter-American corpus juris.
That being the case, those measures should not be prolonged in time to avoid a violation of international human rights. Hence, with the passage of time, it became imperative to think how to return to various social, educational, sports and entertainment activities without endangering the life and physical integrity of people.
How could the protection of public health be achieved without violating other fundamental human rights?
Information and communication technologies (ICT) were key tools in the new socialization imposed by COVID-19, and this is how remote work modalities, holding meetings by electronic means, digital signature, digital procedures, no longer seemed so far away and exclusive of a futuristic universe.
Alternative dispute resolution was no alien to this context, and ICT must be received to enable their development in times of COVID-19.
Through the lens of the decisions adopted in the Province of Santa Fe, Argentina within the Compulsory Pre-Trial Mediation System, this article examines the current challenges and prospects of implementing ICT in such a procedure.
II. Alternative Dispute Resolution (ADR).
Alternative forms of conflict resolution are defined as a set of procedures that allow disputes to be resolved without resorting either to force or litigation process.
It should be noted, however, that such methods are not merely an alternative to judicial review. On the contrary, ADR are of substantial importance as elements for the preservation of peace and social coexistence, being closely linked to representative democracy based on the rule of law.
It should not be overlooked that disputes are the main factors in disrupting peaceful social coexistence, and the strengthening of ties of peace depends on their solution. In this sense, the choice of peaceful methods and self-composition of disputes is an aspect whose awareness must be deepened among citizens and stakeholders such as operators of the legal system, public institutions, and private corporations, to name a few.
In the words of Hortensia D. T. Gutierrez Posse de Ariosa \”… States are realities with life, composed of men and women and it is in their hearts, in their convictions, that peace dies or that peace is born. What disturbs them endangers peace; what satisfies them, instead, builds it.\”[i]
The non-adversarial and dejudicialized methods of conflict resolution collaborate in the practice of tolerance, in the learning of coexistence, generating good neighbors who, based on those values, can coexist peacefully, and build peace through their interaction, from the Human Rights paradigm, in which the dignity of the person prevails.
III. Mandatory Pre-judicial Mediation System – Province of Santa Fe, Argentina
a. Regulatory framework: key provisions
In the Province of Santa Fe, Argentina, by Act Nº. 13.151, the mediation system was established as a non-adversarial method for the “non – judicialization” of dispute resolution throughout the province, as a prior and mandatory instance before accessing courts. This legislation has been regulated successively by provincial decrees Nº. 1747/11, 1612/14, 4688/14, 4036/18 and 184/19.[ii]
The implementing authority of the “Mandatory Pre-Judicial Mediation System” is the “Mediation Management Agency”[iii], within the scope of the Undersecretariat for Access to Justice of the Ministry of the Interior, Justice, Human Rights and Diversity of the Government of the Province of Santa Fe.[iv]
The Mediation procedure is mainly structured on the physical attendance of the parties and the registration on paper of the actions linked to its development.
The parties must participate personally, and they may not do so by proxy, except only for those who hold public office or enjoy certain prerogatives, and those who are domiciled more than 150 km from the meeting’s venue.
The procedure must take place in judicial days and working hours, unless otherwise agreed by the parties with the appointed mediator and formalized it in writing.
The mediator is obliged to hold the meetings in its office, previously authorized for this purpose, and to notify the date and time of the mediation meeting in person or by any reliable means, meaning letters, letters with notice of return closed on themselves without envelope and those that may be made by notifiers of the Judiciary.
For his part, the applicant must appear at the Mediator’s office and deliver 2 copies of the mediation request form so that the mediator signs one and returns the other, being notified of its designation from that moment.
Finally, the records of the meetings are delivered in print and must be signed by hand by the mediator and parties involved.
Nevertheless, during the process certain stages can be identified where ICT has been incorporated, citing for example the initial form that can be sent electronically, the draw of the mediator, the notification of said designation to the applicant and mediator through the digital system, as well as the digital preparation of the records.
The mediator is informed of it appoint through the system but that does not constitute its formal notification, which happens when the applicant delivers the mediation request form as mentioned.
b. Mandatory Pre-Judicial Mediation System in times of COVID-19. Implications.
The work scheme described in the previous section, was completely suspended because of the emergency generated by the COVID-19 outbreak, which involved the preventive and mandatory isolation and social distancing throughout the Argentine territory to reduce the risk of contagion and prevent the spread of the virus. [v]
That context highlighted the need to ensure the uninterrupted provision of the Mandatory Pre-Judicial Mediation System during the duration of the health emergency, considering the impossibility of its execution in the regulated way, that is, by physical appearance.
Therefore, the implementing authority of the “Mandatory Pre-Judicial Mediation System” issued Resolution Nº. 5/2020 in which it was established the modality of holding mediation meetings by electronic means, by videoconference or other similar means of transmitting voice or image, in mediations whose number of participants is greater than five (5) persons, including the mediator. In such cases, the obligation to participate by personal appearance was exempted.[vi]
In cases of mediations in which the total number of participants does not exceed five people, including the mediator, the meetings were allowed to be held in person, with physical appearance, complying the relevant prevention and safety COVID protocols, making it possible to hold them in a non-face-to-face manner at the option of the mediator and with the express consent of the parties.
Finally, the mediators were exempted from the obligation to submit printed copies of the records to the implementing authority. It was stipulated that such an exception a would only apply for the duration of the preventive, social and compulsory isolation.
The implementation of this rule brought with it numerous concerns whose clarification was necessary to ensure the proper development of the mediation process according to the principles that govern it and provide security to the role of the mediators.[vii]
IV. Mediation experience in the “new normal”
The term \”new normal\” refers to the new forms of coexistence and new paradigms of social, cultural, economic, civil, and political activities, which requires a context of pandemic, whose implications and particularities are still completely unknown.
It should be noted that the cited Resolution Nº. 5/2020, represents a great advance in the current Mandatory Pre-Judicial Mediation System of the Province of Santa Fe, Argentina, by incorporating ICT to hold mediation meetings by electronic means.
This made it possible not only to resume this procedure but also to guarantee its continuity during the health emergency, acknowledging the importance of it in the self-composition of the conflicts that arise in a modern and complex society.[1]
However, the fact of limiting its application during the ambulatory and social distancing restrictions, that were ordered in the context of the epidemiological situation due to COVID-19, demonstrates a contradiction with the paradigm of digitalization.
Precisely the said context involved the acceleration, without return, in the implementation of digital media, whose use will not cease once the virus no longer exists.
Mediation in a non-face-to-face, virtual, online, online mode -or whatever denomination is used in reference to it – should be provided permanently and definitively. On that basis, efforts should be made to build regulations and statutes to promote and guarantee it.
In line with this premise, the requirement to hold meetings in the non-face-to-face mode only when all participants have the necessary technical means and have given written consent to this end, reflects the outstanding debt in terms of digital democratization.
In the same sense, the historically adversarial academic training of law professionals, generates resistance to alternative dispute resolution whose value is not acknowledged over traditional legal processes. Currently, such lack of receptiveness has deepened in relation to the use of electronic means within mediation, since it is argued that it is not possible to reach an agreement under that modality in comparison to conventional mediation. In changing such thinking, the professionalization of both mediators and ICT training of operators of the legal system are essential.
V. Conclusion
The COVID-19 pandemic has meant a conjunctural change that has impacted on the traditional patterns of activities and services worldwide as well as on the legal provisions that should regulate these current dynamics.
We are witnessing new paradigms that force us to rethink the way of interacting, challenging the main forms of social relationship such as face-to-face contact, the exchange of information through material support as a primary resource, the physical appearance to the labor, educational, sports, recreational and cultural establishments, among others.
For those reasons, electronic signature, digital signature, electronic notifications, to submit writings and various documentation in digital format, are tools that must be implemented with a vocation of permanence in both the public and private sectors.
As far as States are concerned, they are facing the challenge of governing in urgency, in immediacy, through modern, creative regulations that provide rapid responses and effective administrative, legislative, and jurisdictional action at all levels of government in circumstances that, to date, have ceased to be exceptional.
Precisely, the processes of change and modernization that were being planned in the public sector had to be implemented immediately because of the pandemic context. In this sense, the public budget becomes fundamental to ensure the necessary resources to guarantee both sufficient technological tools and real access to them.
The adoption of technology and the shift from Alternative Dispute Resolution (ADR) to Online Dispute Resolutions (ODR) specifically in the field of Mandatory prior to Courts Mediation in the Province of Santa Fe, Argentina, represents a challenge itself.
From my point of view, its approach requires the address of a series of factors which are interdependent. Firstly, a real and strong conviction about the importance of alternative dispute resolution (ADR) as appropriate forums for accomplishing dialogue-based and consensus outcomes. To this extent, it will be possible and sustainable to shift to Online Dispute Resolution (ODR) in a context which is characterized by the maintenance of a safe distance, the prohibition of physical contact and the mandatory use of masks.
In addition, political support in institutionalization of dispute resolution processes and implementation of ICT in them, which must be accompanied by appropriate regulations that ensure the availability of the necessary human and material resources. Another element of importance to be considered is the training of mediators and legal professionals in the use of ICT and in their articulation in agreement-based ADR/ODR.
Finally, one crucial aspect is the digital democratization considering the socio-economic diversities of the population to guarantee real access to the system and not affect the citizen choice of self-composition methods for addressing their differences.
[i] Gutierrez Posse de Ariosa, Hortensia D. T. Algunas consideraciones sobre la solución pacífica de controversias internacionales, Editorial Universidad de Buenos Aires, pág. 34. Translated by Liliana Amione. Original text: “…los Estados son realidades con vida, compuestos de hombres y de mujeres y que es en sus corazones, en sus convicciones, que muere o que nace la paz. Lo que les perturba, pone en peligro la paz; lo que los satisface, en cambio, la construye.”[i]
[ii] Promulgated by Decree No. 2476/2010, which declares the use, promotion, dissemination, and development of non-adversarial and non-judicialized methods of conflict resolution to be of provincial public interest.
[iii] AGEM: acronym in Spanish for Agencia de Gestión de Mediación.
[iv] According to article 2 Decree No. 1747/2011.
[v] National Executive Power, DNU No. 297/2020, as amended by DNU No. 325/2020, 355/2020 and No. 408/2020
[vi] Resolution No. 05 dated May 22, 2020, of the Secretary of Justice of the Ministry of The Interior, Justice, Human Rights and Diversity.
[vii] Mesa de Trabajo entre los Centros de Mediación de los Colegios de Abogados de la Provincia de Santa Fe, mediadores/as y la Subsecretaría de Acceso a la Justicia del Ministerio de Gobierno, Justicia, Derechos Humanos y Diversidad.
* Liliana Amione is a lawyer and a mediator based in Argentina. This blog post is a translation of the Spanish Blog Post which won an award in the Blog Writing Competition organised by ODR Expo Latin America and Ex Curia International. The original blog post can be accessed here.