Expansion. Sustained and strong. These are the words that best describe the current status of mediation in Chile. Until 2017, most mediations in Chile were concentrated in the area of family law, where the use of mediation to resolve family disputes has been long established. However, since 2018, a strong wind now advances developments in mediation and ADR in Chile. Many factors explain such developments and can be categorized as follows:
- A growing fiscal deficit, that is forcing the state to make courts more efficient
- A critical situation in the juvenile justice system
- A renewal of civil procedure code reform
- A reform of environmental evaluation procedures
- A new consumer law reform
Due to its fiscal constraints, the state must generate alternatives illustrated by the following:
- Banks and retail companies mostly use the civil courts. The vast majority of cases are debt collection.
- Labor courts are in crisis. The judiciary is unable to manage the large backlog of cases. The government is working to implement a more extensive use of mediation to reduce the number of trials, with all their associated costs. Recent labor reform has fostered the role of ADR, especially the use of arbitration in union-enterprise relations.
- The system of juvenile justice requires change, due to the lack of opportunity for victims to participate or be properly compensated by offenders. A project is underway to modernize and separate juvenile justice from the child protection system, to enable a mediation process between young offenders and victims for minor cases and some specific misdemeanors. This mediation process will be used to provide an appropriate punishment for young offenders.
- Consumer law reforms have been undertaken, following tumultuous legislative discussion and a subsequent trial before the Constitutional Court. The laws now enacted, recognize the role of mediation in consumer matters, focusing on how providers and consumers behave in the mediation process, conducted under the administrative agency in charge of consumer protections (SERNAC).
- A new education law establishes a mandatory team of mediators at every school in Chile in order to prevent bullying, and teach and train students the techniques that allow students to mediate or facilitate controversies between classmates.
- An environmental evaluation procedure for projects is now in the process of modification. The government is promoting an early evaluation process with an intense dialogue stage at the beginning of a project. In parallel, a private-public consortium, called “Valorminero Alliance,” has proposed public policy guidelines, including a proposal to establish a new private agency to foster ADR, associated with local communities, to manage: 1) The administration of a roster and accreditation of mediators and facilitators, 2) The design of ADR rules associated with environmental conflicts, and 3) The control of an independent fund to finance complete mediation procedures, especially for communities.
Mediation and ADR in Chile will continue to develop and is only a matter of time, patience and effort.
By Patricio Cury Pastene, Senior Fellow-Chile, Weinstein International Foundation