Important ADR Developments in Ecuador
Ecuador has witnessed important developments in ADR during the past twenty years. Mediation today is broadly used for the resolution of legal disputes. Other ADR mechanisms have also grown, including arbitration and dispute boards.
The Arbitration and Mediation Act, enacted in 1997, marked the starting point of modern mediation in Ecuador. Before 1997, indigenous communities included a form of mediation as part of their justice system. This allowed for the peaceful resolution of local disputes, but mediation was not used for any other type of controversy.
Since 1997, mediation has grown in acceptance and recognition by the legal community and the general public. It has been acknowledged by the Constitution since 1998 and incorporated into several pieces of legislation. As a result, mediations have steadily increased over the years. Today, there are several ADR providers, and mediation is broadly used for the resolution of increasingly complex disputes in various subject matters.
Ecuador´s mediation has two features that distinguish it, compared with other countries. The first is the strength of the Mediated Settlement Agreement (MSA). The MSA is considered a final judgment that can be automatically enforced within Ecuador, without the need for any further approval. Private parties are empowered to administer their own justice. Recent legislation has also acknowledged the recognition of foreign MSAs, so that both local and transnational mediated settlement agreements are enforceable.
The second feature involves mediation with the State. In some civil law countries, mediation cannot be used to resolve disputes that involve a public entity. Ecuador has designed a coherent legal framework, however, which allows the government to participate in mediation and reach a settlement. Mediators have designed processes that consider settlement barriers common to public functionaries, including fear of the consequences of certain decisions and budgetary issues, among others. Through mediation, many highly complex legal disputes with high stakes have been successfully resolved, preventing national, as well as international litigation.
Ecuador has developed the use of mediation over the years, and its practice is interesting as a potential model for other countries in the region to consider. However, it still faces important challenges. These include: the professionalization of mediation, so that it can become a successful profession for practitioners, the expansion of mediation to subjects that have traditionally been considered outside of its scope, and the enhancement of mediation attributes in order to build a culture of peace.
Arbitration in Ecuador
Ecuador has a long practice of domestic arbitration, first with the issuance of the Commercial Arbitration Law on the 1960s and subsequently, with the Arbitration and Mediation Law of the 1990s. Lately, more controversies related to investment contracts are being directed to arbitration. There is also an initiative to harmonize actual law to the UNCITRAL model law, in order to improve domestic and international arbitration with actual standards.
Regarding other ADR mechanisms, Ecuador has explored the possibility of using dispute boards for the management of construction and public procurement conflicts. However, this mechanism has not yet been recognized by legislation.
Ecuador has also designed a peace justice system, by which a respected member of a community acts as an equity judge to resolve local controversies.
By Ximena Bustamante, Senior Fellow-Ecuador, Weinstein International Fellow