Mediation in North America and Ecuador

In Ecuador the Mediation agreement has the exact same value as a final judgment issued by a Judge. The Arbitration and Mediation Law of Ecuador establishes that “the mediation minutes, in which the agreement is contained, have the effect of a final judgment [1] and “res judicata [2]” and will be enforceable in the same way that final judgments are enforced, … and the Judge who handles the enforcement [3] can not accept any motions or pleadings, except for those which are originated after the mediation agreement has been signed [4]”.

This gives Mediation in Ecuador an additional value, since the disputants know that once they settle, the mediation agreement will be equal to a final judgment issued by the judge. In this way, parties feel that they have justice in their own hands.

In other countries, such as the United States of America or Canada, the mediation agreement is just considered a settlement, but does not have the same value as a final and definitive judgment. For this reason, many parties may feel discouraged. They might think that they need to battle to enforce the agreement and therefore a sense of closure is not perceived.

According to the latest version of the Uniform Mediation Act (UMA) [5]: “If the parties conclude an agreement settling a dispute, that settlement agreement is binding and enforceable ... [the enacting State may insert a description of the method of enforcing settlement agreements or refer to provisions governing such enforcement.” [6]

Once this Act is approved by all states, it would provide the United States of America with a very important tool to help enforce mediation agreements. Other countries should try to create legal mechanisms to make these agreements totally enforceable.

For now, a possible solution to this issue would be for the parties to include within the agreement a provision on what would happen if either of them does not comply with it [7]. This will give the parties the security that their time has been invested in reaching a settlement that is possible to enforce.

LEGAL SYSTEMS

In international business relationships, parties could have different legal systems: There are two mayor law mechanisms in force now:

the common-law system [8]
civil-law system [9].

Whereas civil-law judges resolve disputes by referring to statutory principles arrived at in advance, common-law judges focus more intently on the facts of the particular case to arrive at a fair and equitable result for the litigants [10].

Mediation offers the parties the possibility of sitting together to solve their differences without having to learn about the other party’s law mechanisms [11].

Nevertheless, it is important that the Mediator knows about these differences in the legal systems in order to make the final agreement enforceable in both countries. The lawyers of both parties should work together with the Mediator to get this issue straight and to avoid future problems in the enforcement of the agreement.

Literature:

Judgment that may be appealed to the executive but not to a higher court; judgment which has been fully carried out. See Guillermo Cabanellas de las Cuevas y Eleonor C. Hoague, “Legal Dictionary, English-Spanish, Spanish-English”, volume 2, Buenos Aires: Heliasta (1998).
Matter decided; thing decided by a court which was issued a final decision against which there is virtually no recourse. See Idem.
Execution of the judgment. See Idem.
Article 47, paragraph 4, “Ley de Arbitraje y Mediacion (Arbitration and Mediation Law)”, issued on September 4, 1997, Ecuador.
The UMA was drafted jointly by the American Bar Association’s Drafting Committees and the National Conference of commissioners on Uniform State Laws (NCCSUL) in the United States of America.
Article 14, Appendix A of the UMA (Uniform Mediation Act) Model Law as adopted by the United Nations Commission on International Trade Law -- UNCITRAL at its 35th session in New York on 28 June 2002 and approved by the United Nations General Assembly on November 19, 2002 at http://www.law.upenn.edu/bll/ulc/mediat/2003finaldraft.htm#TOC1_18
Lynn Parish, “After the mediation, what?” Canadian Business and Current Affairs, Legal Resource Centre, University of Alberta Law Now, at Lexis Nexis: http://www.lexis.com/research (March 2003).
The common law is based on the principle of deciding cases by reference to previous judicial decisions, rather than to written statutes drafted by legislative bodies. This system of law prevails in Britain and in those countries, such as Canada and the United States, which were originally colonized by English settlers. See “common law”, Microsoft Encarta Encyclopedia Standard 2004 © 1993-2003 Microsoft Corporation. All rights reserved.
In civil law systems, all laws are made by legislators and contained in comprehensive written codes (books of statutes) rather than made by judges through their decisions, See “civil law” in “commonly used legal terms”, Microsoft Encarta Encyclopedia Standard 2004 © 1993-2003 Microsoft Corporation. All rights reserved.
See “common law”, Microsoft Encarta Encyclopedia Standard 2004 © 1993-2003 Microsoft Corporation. All rights reserved.
Dr. Luis Miguel Diaz & Nancy A. Oretskin J.D., “Mediation furthers the principles of transparency and cooperation to solve disputes in the NAFTA Free Trade Area”, Denver Journal of International Law and Policy, Volume 30, Number 1, 87 (Winter 2001).

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