Mediation in Ecuador

Mediation in Ecuador is recognized in the Political Constitution as one of the alternative methods for the solution of conflicts. Due to the satisfactory results obtained with its use, it is increasingly used in disputes. commercialcivil, family and other matters.

Assisted negotiation

Mediation in Ecuador is a negotiation assisted by a neutral third party, called mediator, whose task is to guide the parties in conflict to identify, clarify and delimit the conflicting points, and based on a clear identification of the controversy, the interested parties themselves arrive at a solution, without the mediator deciding for them or issuing a resolution regarding the conflict.

In search of a solution

This mechanism may be accessed when the parties, in a contract, have agreed that, in case of disagreements, they will first seek a solution through mediation. A mediation process may also be carried out when any natural or legal person, even without having foreseen it in a contract, requests it, in which case the other party will be summoned, indicating the date and time of the hearing. Likewise, when an ordinary judge orders, at any stage of the case, ex officio or at the request of a party, that a mediation hearing be held before a legally registered mediation center and provided that the parties agree to it. There is room for mediation, as a stage of an arbitration process, before the arbitral tribunal is set up. The Labor Code also provides for a mandatory mediation stage once a conflict has arisen between the employer and the workers, and before the Conciliation and Arbitration Court is constituted.

Confidentiality

The mediation is confidential, both the parties and the mediator must maintain due confidentiality of the agreement formulas that are proposed, however the possibility remains open for the parties, by mutual agreement, to waive confidentiality. It is important to emphasize that all the elements of judgment that the parties expose in the mediation hearing, cannot be invoked within the trial.

As a result of the sessions held between the parties and the mediator, a total or partial agreement may be reached, on an absolutely voluntary basis between the intervening parties. In the event that the parties reach an agreement, it must be recorded in a Mediation Act, which once signed will be binding and will have the effect of an enforceable judgment and res judicata, which will be enforced in the same way as a final judgment, if necessary.

Valuable alternative

Mediation is presented as a valuable alternative to the congestion that currently exists in the ordinary justice system, due to the fast and timely results that can be obtained, which has an impact on the costs that must be incurred to solve the conflict, which are significantly lower than carrying out a judicial process. In addition, by its nature, it tends to reduce the confrontation between the parties in conflict and commercial relations can be maintained, which can continue to be fruitful.

Because of the valuable contribution that mediation makes to conflict resolution, the Quito Chamber of Commerce has a mediation center that provides services to both its members and non-members.

Mediation in Ecuador

With regard to the points that can be dealt with by Mediation in Ecuador as a matter to be settled in a mediation, by way of example, which in our legislation are found in a dispersed manner, we can point out the following:

Non-Tradable Matters

On the other hand, the points that the doctrine and the legal system establish as prohibitions to settle or compromise, are also several and are scattered throughout the legislation, there is no rule or codification that clearly establishes what they are, for this reason, I quote some of them:

1. The action to accuse and request punishment for crimes: Crimes of public action, whether of official instance or of private instance, are not susceptible to mediation, because they would infringe on the common good and public order, indemnities arising from criminal offenses of private action can be dealt with in mediation.
2. The validity or nullity of the marriage: The civil status of persons is not subject to mediation, but it is possible to compromise on the consequences derived from that status, such as the effects of the marital partnership.
3. Things that are out of commerce: The Code of Commerce and other concordant laws establish that what is out of commerce cannot be susceptible of transaction.
4. Rights that cannot be the subject of a convention: This is another legal prohibition regarding what cannot be the subject of any legal act.
5. The answers relating to parental authority, to the husband's authority, nor on the family status itself, nor on the right to claim the status that corresponds to persons, either by natural filiation, or by legitimate filiation.
6. The eventual rights to a succession: With respect to the agreements of future succession, which cannot be negotiable, we have the waiver of a future succession, disposition of a future succession; and, institution of an heir.
7. The succession of a living person: It is not possible to compromise with respect to the succession of a person who is still alive, furthermore there are degrees within the succession, that is legitimate, fourth of improvements and of free disposition.
8. The obligation to provide alimony: Mediation in Ecuador may fall on the value to be paid for alimony, but not on the right to recognize it or not.
9. The salary of assistance or salvage, if the agreement is made on the high seas or at the time of stranding: This is given by vices of consent, and nullifies any act that is given in such circumstance.
10. Workers' unwaivable rights: There is an express legal prohibition on workers' rights, which are unwaivable.
11. Rights of others or third parties: One may dispose of an asset or right, as long as one has dominion over it or the respective authorization of the owner, that is to say, if there is a valid representation, one may mediate with respect to the rights of others, as long as it is a subject matter that can be negotiated.
12. National assets: The Civil Code establishes in Article 604 as national assets those whose domain belongs to the Nation as a whole, the same article cites examples such as streets, squares, bridges and roads, the adjacent sea and its beaches, perpetual snow-capped mountains and areas of territory located more than 4,500 meters above sea level.
13. Taxes or actions in which the State acts with imperium power: Taxes are not susceptible to mediation, since it is an obligation imposed by the State, with its imperium power.
14. Regulations, laws and other norms: Laws, regulations and in general all types of norms are not subject to transaction, since they are issued by a competent authority and of general compliance, not for specific cases, nor can their publication or repeal be mediated because they violate public order.
15. Others that the special laws determine for each case, which prohibit the mediation or its negotiation, as examples we have the goods or rights that do not exist; already concluded litigations; future crime, quasi-delict, fraud or fault; the domain of individualized premises of real estate, which are not subject to the horizontal property regime; acts that without meeting the requirements of the promise, tend to generate obligations of a legal act.

Mediation in Ecuador