ARTICLE
A new Mediation Law
On April 15, 2010, the Argentine Congress enacted Mediation Law No. 26,589 which will come into force on August 4, 2010. The Law definitively sets forth the mandatory mediation proceeding prior to the commencement of any judicial proceeding in the jurisdiction of the City of Buenos Aires and, additionally, provides for new requirements that must be complied with in these mediation proceedings.
May 31, 2010
The main terms of the new law are the following:
Formal matters
The mediation minute issued and executed by the mediator which must be filed when the complaint is submitted with the courts must be certified by the Justice, Security and Human Rights Ministry pursuant to what the regulation of the new law will determine (section 3).
Confidentiality
The new law extended the scope of confidentiality to the content of papers and/or any other material which the parties may have prepared during the mediation proceedings and sets forth that confidentiality does not require express agreement of the parties (section 8).
Interdisciplinary performance
It provides the possibility that the mediator participates with the assistance of professionals who are familiar with the fields related to the conflict subject to the mediation, and registered in a Registry which will be established. The assistance of these professionals, who will act under the responsibility and direction of the mediator, must have the previous consent of the parties (section 10).
Fees
The law provides that the intervention of the mediator and the professional assistants is in principle of an onerous nature. A basic fee for the mediator is provided and will be fixed pursuant to the regulation of the new law (section 35). The fees of the attorneys of the parties will be fixed pursuant to the Fees Law and according to the guidelines established in section 1627 of the Civil Code.
Free-of-charge mediation
People who can prove that they do not have economic resources may request mediation proceedings, which will be carried out in the mediation centers of the Justice Ministry and the public mediation centers (section 36).
Appointment of the mediator
Apart from the existing appointment methods (agreed by parties, proposed by the claimant, at random) the judge who intervenes during the judicial process could send the file to a mediation proceeding. In that event, the mediator will be appointed at random, unless otherwise agreed by the parties (section 16, subsection d).
Summons of third parties
The consent of all the parties is required to proceed to the summons of third parties. If the third party fails to present self for no justified reason, the third party will not participate in the subsequent mediation.
Power of judges to derive the judicial process to mediation
The new law provides the possibility for judges to derive the judicial process to mediation. Judges could order this at the hearing set forth in section 360 of the Procedure Code or “when they deem it convenient” that the circumstances justify it. The legal terms in the judicial file will be suspended for 30 days from the notice to the mediator made by any of the parties and will resume once the 30 day term is due. This may be extended by the agreement of the parties (section 17).
Effects regarding statute of limitation and expiration (“caducidad”)
In the event of the mediation agreed by the parties or proposed by the claimant, the suspension proceeds from the date of notice of the first hearing to the defendant or from the holding of the hearing, whichever may occur first. In the mediation at random, the suspension proceeds from the date of appointment of the mediator by the judge. In all cases, the legal terms will resume 20 days after the date when the closing mediation minute is at disposal of the parties (section 18).
Closing of the mediation process because parties do not appear – Fine
The claimant is entitled to start the judicial process if the other party does not appear at the hearing. The party which does not appear must pay a fine of 5% of the basic salary of a national judge of a lower court (section 28).
Term to carry out the mediation
The legal term to carry out the mediation will be of 60 calendar-days from the last notice to the defendant or third party. In the event of evictions and enforcements (in which mediation proceedings is optional), the legal term is reduced to 30 calendar days.
Expiration (“Caducidad”) of the mediation
Mediation will expire if a year passes without the judicial process being initiated (section 51).
Judicial fees
These will comprise, in addition to the expenses derived from the judicial process, the expenses derived from the mediation proceedings. The unnecessary expenses will not be refundable and the excess may be reduced by the judge (section 53).
Expiration (“Caducidad”) of injunctions
The mediation proceeding or complaint must be filed within the term of 10 days from the injunction ordered prior to the proceedings. Regarding the mediation proceedings, the legal term to file the complaint will be renewed once the term of 20 days since the date that the mediator executed the mediation minute certified by the Justice, Security and Human Rights Ministry which proves that the parties have not agreed has passed (section 54).
Enforceability
The agreement executed by the mediator certified by the Justice, Security and Human Rights Ministry will be enforceable, unless the rights of a minor and/or disabled would be challenged. In these cases, judicial approval would be required.
Notwithstanding that the law will come into force on August 4, 2010, there are several matters that are yet to be defined through the regulation of the Executive.
Formal matters
The mediation minute issued and executed by the mediator which must be filed when the complaint is submitted with the courts must be certified by the Justice, Security and Human Rights Ministry pursuant to what the regulation of the new law will determine (section 3).
Confidentiality
The new law extended the scope of confidentiality to the content of papers and/or any other material which the parties may have prepared during the mediation proceedings and sets forth that confidentiality does not require express agreement of the parties (section 8).
Interdisciplinary performance
It provides the possibility that the mediator participates with the assistance of professionals who are familiar with the fields related to the conflict subject to the mediation, and registered in a Registry which will be established. The assistance of these professionals, who will act under the responsibility and direction of the mediator, must have the previous consent of the parties (section 10).
Fees
The law provides that the intervention of the mediator and the professional assistants is in principle of an onerous nature. A basic fee for the mediator is provided and will be fixed pursuant to the regulation of the new law (section 35). The fees of the attorneys of the parties will be fixed pursuant to the Fees Law and according to the guidelines established in section 1627 of the Civil Code.
Free-of-charge mediation
People who can prove that they do not have economic resources may request mediation proceedings, which will be carried out in the mediation centers of the Justice Ministry and the public mediation centers (section 36).
Appointment of the mediator
Apart from the existing appointment methods (agreed by parties, proposed by the claimant, at random) the judge who intervenes during the judicial process could send the file to a mediation proceeding. In that event, the mediator will be appointed at random, unless otherwise agreed by the parties (section 16, subsection d).
Summons of third parties
The consent of all the parties is required to proceed to the summons of third parties. If the third party fails to present self for no justified reason, the third party will not participate in the subsequent mediation.
Power of judges to derive the judicial process to mediation
The new law provides the possibility for judges to derive the judicial process to mediation. Judges could order this at the hearing set forth in section 360 of the Procedure Code or “when they deem it convenient” that the circumstances justify it. The legal terms in the judicial file will be suspended for 30 days from the notice to the mediator made by any of the parties and will resume once the 30 day term is due. This may be extended by the agreement of the parties (section 17).
Effects regarding statute of limitation and expiration (“caducidad”)
In the event of the mediation agreed by the parties or proposed by the claimant, the suspension proceeds from the date of notice of the first hearing to the defendant or from the holding of the hearing, whichever may occur first. In the mediation at random, the suspension proceeds from the date of appointment of the mediator by the judge. In all cases, the legal terms will resume 20 days after the date when the closing mediation minute is at disposal of the parties (section 18).
Closing of the mediation process because parties do not appear – Fine
The claimant is entitled to start the judicial process if the other party does not appear at the hearing. The party which does not appear must pay a fine of 5% of the basic salary of a national judge of a lower court (section 28).
Term to carry out the mediation
The legal term to carry out the mediation will be of 60 calendar-days from the last notice to the defendant or third party. In the event of evictions and enforcements (in which mediation proceedings is optional), the legal term is reduced to 30 calendar days.
Expiration (“Caducidad”) of the mediation
Mediation will expire if a year passes without the judicial process being initiated (section 51).
Judicial fees
These will comprise, in addition to the expenses derived from the judicial process, the expenses derived from the mediation proceedings. The unnecessary expenses will not be refundable and the excess may be reduced by the judge (section 53).
Expiration (“Caducidad”) of injunctions
The mediation proceeding or complaint must be filed within the term of 10 days from the injunction ordered prior to the proceedings. Regarding the mediation proceedings, the legal term to file the complaint will be renewed once the term of 20 days since the date that the mediator executed the mediation minute certified by the Justice, Security and Human Rights Ministry which proves that the parties have not agreed has passed (section 54).
Enforceability
The agreement executed by the mediator certified by the Justice, Security and Human Rights Ministry will be enforceable, unless the rights of a minor and/or disabled would be challenged. In these cases, judicial approval would be required.
Notwithstanding that the law will come into force on August 4, 2010, there are several matters that are yet to be defined through the regulation of the Executive.
This insight is a brief comment on legal news in Argentina; it does not purport to be an exhaustive analysis or to provide legal advice.