Mexico and civil, family and commercial mediation: A search for complementary routes to the state courts

Abstract

Mexico is a federation organized into 31 states and a Federal District (Mexico City), almost every one of which has legislative sovereignty for a significant number of matters, including family matters. For practical considerations, this paper will only refer to the laws that deal with mediation in Mexico City, stressing the sometimes substantial differences between its legislation and that of the rest of Mexico. With this in mind, the Alternative Justice Law of the Mexico City High Court of Justice (MCHC), is the main law that regule this subject. Thus, in the ordinary laws of the Federal District, mediation is upheld in: the Alternative Justice Law of the MCHC; the Mexico City Code of Civil Procedures; the Mexico City Code of Criminal Procedures and the Juvenile Justice Law for the Mexico City. Likewise, it has effects in matters regarding the Mexico City Civil Code, the Mexico City Registral Law and the Organic Law of the MCHC. Mediation inMexico finds its legal basis in theMexican Constitution, specifically in Article 17, paragraph four, which establishes that the law will provide alternative conflict resolution mechanisms. Likewise, Article 18, paragraph six, of the Constitution states that alternative justice procedures shall be used whenever possible in cases of juvenile justice in conflict with criminal law. In Mexico, mediation in courts-the most widely used form-has been in force since 1998 when the State of Quintana Roo reformed its constitution and laws to include it. To date, there are Mediation Centres or Alternative Justice in 29 states, and only 3 states do not have Mediation Centres: Guerrero, San Luis Potosí and Sinaloa. All the laws that govern mediation in Mexico contemplate the existence of an agreement or settlement. Some laws give them similar force of res judicata, while for other laws, agreements serve as the basis for the legal action. The binding force of the mediation settlement has been strengthened by recent reforms in the matter of 19 June 2013 and 8 August 2013. It is clear that the mediation settlement or agreement is res judicata and that only an administrative complaint or an Amparo trial can be attempted to go against its execution. Both remedies are lay down against the rulings of a judge ordering the execution of a settlement, but not against the settlement itself or its contents. Even though in the case of non-compliance, mediation settlements reached through public and certified private mediators are enforceable in national Mexican courts, the real problem lies in actually recognizing and enforcing said settlements in an international context. Most of the conventions drafted at the Hague Conference of Private International Law lead to co-operation. Co-operation among administrative and judicial authorities may be needed to help facilitate the enforceability of the agreement in all the States concerned.