LA CONCILIACIÓN PDF

# LA CONCILIACIÓN ## SUMMARY - Alternatives no jurisdiccionales para resolver conflictos. - La conciliación y sus posibilidades: - Antecedentes históricos de la conciliación - La conciliación en Argentina - Modalidades de la conciliación - Naturaleza jurídica de la conciliación. -...

# LA CONCILIACIÓN ## SUMMARY - Alternatives no jurisdiccionales para resolver conflictos. - La conciliación y sus posibilidades: - Antecedentes históricos de la conciliación - La conciliación en Argentina - Modalidades de la conciliación - Naturaleza jurídica de la conciliación. - Fundamento de la conciliación. - Resultados de la conciliación. - Beneficios que reporta la conciliación en sede jurisdiccional. - Oportunidad para la audiencia de conciliación. - El procedimiento en la audiencia de conciliación. - Efectos del acto conciliatorio. ## I. ALTERNATIVAS NO JURISDICCIONALES PARA RESOLVER CONFLICTOS - The crisis that the process suffers as a peaceful way of resolving disputes between men is evident. - No one escapes the crisis that the process suffers as a peaceful way of resolving disputes between men. Notable experiences such as the intrinsic slowness in the system and the increasing burden on a daily basis, the difficulty in accessing. Moreover, it becomes evident a certain mistrust in men of justice that damages the image and discredits the transcendent instance that the jurisdiction proposes. - It is true that the statement is not a present reality but the product of an evolution in the mistakes that, seeking to strengthen the system, led it to extreme unsustainable changes, if there is not a radical transformation. - In this sense, the geometric increase in cases, the budgetary poverty that personalizes the allocation of resources, the plethora of professionals that is increasingly more disturbing due to its number and resulting quality, among different records of various concern. The emphasis on the alternatives designed to achieve the same security and efficacy as the jurisdictional route promotes is clear. - Institutions such as arbitration, mediation, and mediators arise, without forgetting other instances such as economic incentives (agreements that are favored between the parties with the risk of assuming large costs) or complaints filed with institutionalized bodies that assume the defense of interest. ## II. LA CONCILIACIÓN Y SUS POSIBILIDADES - Conciliate means reaching an agreement between opposing interests, it is harmony established between two or more people with dissenting positions, the Latin word conciliatio that means the composition of spirits in difference. - The intention of resolving peacefully the problem that confronts opposing wills is present in each of these precisions, an agreement that can be achieved within or outside the same process, and before or after it has been promoted. - The question posed by the conciliation lies in its utility with respect to the efficiency that is expected from it. - In effect , if conciliation is rapid pacification, it could be argued that justice of the case would be absent in that act. - The negotiated decision would work on the basis of bargaining and convenience that are alien to the protection of the right that the jurisdiction has in principle. - The bilateral waiver, Bentham said, should be discouraged because the State is interested in the justice being fulfilled in all its extent, and conciliation hides, in reality, a market where the one who bargains the most wins. - The position discourages the value of the figure, but the historical answer is concise and demonstrates the appropriateness of its establishment with certain necessary adaptations that it will be appropriate to establish. ## 1. Antecedentes históricos de la conciliación - The oldest records show that ancient civilizations, always present in the spirit of men, were willing to sacrifice their extreme positions to achieve lasting agreement that would allow peaceful coexistence without effort and in harmonious logic. - Precisely for this reason, conciliation took shape in societies gathered under the authority of a patriarch or a family leader who settled in fairness. - The ancient Athenian society requested that conflicts be settled without the need to go to court. - For this purpose, Thesmothetae were commissioned with dissuasion and persuasion of the troubled spirits in crisis to reconcile them through transaction or negotiated arbitrations. - We receive arbitration judges from Roman law. - Arbitration judges from Cicero 's time who went to equity to settle disputes . - The study of hitters on the subject adds that In the French Revolution, based on the ideas inspired by Voltaire, Rousseau and Montesquieu began the idea that the new codification based on enlightened rationalism -unlike the laws of the ancient regime -did not need great interpretations to be implemented since it dealt with rules of extreme clarity inspired by reason, in such a way that their application to a concrete case did not require specialized judges of law, but simple citizens of good faith and with a certain culture. - the Spanish Law of Judicial Procedure of 1855 established intra-judicial conciliation in a hearing prior to promoting the lawsuit. - Article 201 said: "Before initiating a lawsuit, conciliation must be sought before the competent judge, ", a provision that the law reformed in 1881 maintained excepting proceedings verbal, declarative actions that were proposed as incidents or derived from voluntary jurisdiction, those which concerned the State and its institutional projections, those which concerned minors and incapacitated people for the free disposal of their goods, those which were filed against unknown or uncertain individuals, or against absentees without a known residence, or who are domiciled outside the territory of the court where the lawsuit must be filed, actions of civil liability against judges and magistrates, and universal, executive, eviction, interdicts and provisional food lawsuits. - In summary, conciliation has been of particular interest for possible transactions matters, it is necessary to note that it has been designed as an act prior to the process, and even before it, as a possible preventive and remedial hearing for interests and rights being faced. ## 2. La conciliación en Argentina - The Assembly of 1813 established the Tribunal of Concordia, as a mechanism of restorative and conciliatory justice. - Its purpose was to determine whether the facts presented in the respective claims gave rise to judicial intervention and, if so, its purpose was to induce a hearing for agreement that would avoid the prosecution of the conflict. - The provisional statute of 1815 repealed the method, but it served as a notable precedent for its utility, to the point that it indicated that the first instance judges before whom proceedings were brought must invite the parties to the transaction and conciliation of them, by all possible means before going on to know judicially. - This tendency towards amicable composition was accepted in every adjectival regulation made by law. - Law 14,237 (reforming the old code of judicial procedures of the Federal Capital), the Law 17,454 (which gives life to the Civil and Commercial code of the Nation) and the recent reforms such as Law 22,434 have established, the possibility of conciliation, in any state of the process, ordering the personal appearance of the parties. ## 3. Modalidades de la conciliación - The need to clarify the modalidades that admit the conciliation once established the object that institutionally accounted for. - Conciliation can be procedural and be established during a process or while moving towards it; or be pre-procedural, and in that case, be outside the jurisdictional notion to be considered as a mechanism for composition through individuals or institutions properly backed. - extrajudicial conciliation usually is called pre-processual conciliation because it tends to resolve the conflict before reaching the court. - The objective here is to observe the operation of compositional formulas through management, that guides mediators-conciliators that are designated by the parties by common agreement, or from organizations properly institutionalized. - The intervention of a third party in the conflict does not grant jurisdictional character to the procedure, because the conciliator takes part by the direct will of the parties and not by the will of the State that predeternmines it as a natural judge. Similarly, the conciliator that works outside the process does not exercise any heterocomposition because it takes place , as Alvarado Velloso said, "in the case of the absence of an agreement between the parties regarding the person of the third party that will resolve the conflict: it occurs in the judicial process that the claimant can begin even against the will of the respondent, who nevertheless will be bound to him by the mere will of the law." - The good offices that the conciliator offers to equitably resolve the conflict does not turn what has been done into a process but it's a voluntary procedure that seeks to mitigate intense temperaments and reforms proposals of self-composition that encourage offers of autonomous resolution, and not the formula that the mediator promotes. - However, the phenomenon does not have this only characteristic because it is a negotiable right and the parties can agree that the third person has influence and resolving power that they can accept without right to appeal or admitting that their proposal is of simple approach to the conflicting interests generating an alternative solution to the peace. - Therefore extrajudicial conciliation presents these modalidades: - As an activity of good office of a third person who limits to trying to bring the parties closer together based on the prudent attitude of wise men, whose attitude is not expressed in recommendations of mandatory follow up. - As a mediator, conciliation manifests itself in the activities and diligence that the third party offers, proposing settlement agreements that the parties can follow. - Unlike above, he directs the dispute and seeks agreement, but he does not decide per se, because the solution of the controversy remains available to the parties. - You should not confuse these discouraging attitudes with the work that arbitrators and amicable composers exercise, because they have a different scope sketched out from the forms of the trial. - In some way they are judges of conscience who resolve according to their knowledge, understanding, prudence, and skill used, being their pronouncements, properly, judgements that the opposing parties must respect by the submission voluntarily made. - Extrajudicial conciliation analyzed in the legal frame that offers comparative law shows possibilities of different generation. - Sometimes it is imposed as a prejudicial condition and obligatory in a certain type of issues and processes; in other, it continues in the disposal of those interested, it is optional, but effective and useful to resolve without the crisis and judicial fatigue, problems of singular significance and presence. - In Spain, the act of conciliation was imposed as a genuine pre-requisite of admissibility of the claim, whose fulfillment had to be examined by the judge before giving course to the petition, until 1984 that the law of judicial procedure was reformed it was regulated with a facultative character. - This preventive act is a self-composition mechanism that is offered to the parts. If the objective of bringing closer together and agreement is achieved in the settlement, the settlement becomes withdrawal, submission or transaction. - Characterized doctrine mentions that the current facultative character to which conciliation pre-processual now returns is due to the fact that the act had become a mere formality, in a genuine obstacle that it was necessary to save inside the race of obstacles in which the civil process had become lost. - In reality, the history of conciliation is the history of a great illusion broken . - France suffered the same backlash, because from the great conciliation exercised by the justice of peace it was turning to the stage of the process in reason of successive changes that abolished first the same conciliation and then the justice of peace. - The compulsory nature of conciliation before the process motivates ardent opinions against it. Some argue that they constitute real obstacles to access to justice without any limitations of any kind and that their ineffectiveness is demonstrated by the numerous legal systems that abandoned their course -preventive or pre-procedural, to set it up inside the legal proceeding. - Others, in direct contradiction point out that the comparative law is a manifest spokesperson of the trust that is placed in this institution in Africa, Asia or the same Europe and the United States where each establishes the way to establish in the communities a body suitable for the resolution of lesser conflicts of a civil or criminal nature in those cases in which the parties have the availability of law. - They tend to congest the jurisdictional work and to act as agents interested in seeking out fast ways to resolve conflicts. - For its part the voluntary conciliation before the process, has germinated in institutions of multiple purposes in the quest of approaching solutions to conflicts raised by interpretations of the rights of the consumer, diffuse interests, family matters, labor issues , etc. - The same inspiration, but in a framework of undiscriminated competition , assume parajudicial organizations such as the Colleges of Lawyers and ombudsman, etc. - Procedural conciliation : Conciliation inserted in the scope of the process develops a specific modality of the purposes that inspire the procedural law: to reconcile without sacrificing interests. - The pacification provoked by the judicial activism in base to the audience was and is a mechanism directed to soften exacerbated feelings, avoiding the prolongation of a lawsuit that has anticipated responses without the need for obtaining them from the final sentence. - Position the conciliation as an act of the process, appropriate and effective, seeks to achieve that destiny of settlement of controversy without tying up the differences that lead to continue the litigious state. - On the other hand, the presence of the judge in the hearing against sensibilities different in the minds of the participants, it is not pure willful action but an element of prudence and advice that allows to know a certain stance against the events. - It is also installed in the process and the judge can order or not the appearance to the settlement, because if the parties can not be obliged in relation to the object of the dispute, it would would be useless and unhelpful to promote the means to resolve the dispute, if it is also it is prohibited to dispose it because it is not a negotiable issue. - We think that this is on the right path for conciliation, an power act for the judge and a right absolutely directive for the parties. ## III. NATURALEZA JURÍDICA DE LA CONCILIACIÓN - Couture raises an interesting question which affects the understanding of the system. It consists in resolving whether conciliation is an act of the process (or procedural), or if it is an agreement between parties where there may be bilateral waivers and, in that case, transaction properly said. - The nature of the conciliatory act should be differentiated from the resulting act that can have different responses depending on how the parties have arranged it (for example transaction, abandonment without costs, mutual and partial acknowledgements, strict conciliation, etc.) - Similarly, distinguishes between the place where conciliation is established as a stage of the process or prior to it; from those systems , like ours , that regulate it as a mere faculty of the judicial body. - From these distances set by the same organization, it arises that when the conciliation is imposed as a previous stage to the introduction to the process, its preventive nature tends to identify it as an autonomous process. - In this way, it would be possible to confirm that there is a process of conciliation independent because it has parties, it has an organ that intervenes and pacifies (for example the justice of peace) and achieves a result that is useful and effective to the interests of the participants. - Guasp calls it "a process of conciliation " to special cognitive processes for legal reasons, through which it tends to eliminate the birth of a main process later, also of knowledge, through the attempt of an agreement or a peaceful arrangement between the parties. - In his view , it would be a particular process because there is a judicial demand that provokes an authentic judicial intervention. The fact of not resolving the bottom of the problem does not deprive it of singularity because the destiny of conciliation is the peaceful agreement. Furthermore, the characterization that the Law of Judicial Procedure in Spain makes, calling an act to this type of processes of elimination, does not prevent assigning it a procedural character since , against the legal name is the systematic positive positioning which if it is embedded in the contentious jurisdiction and , therefore, within the manifestations of strict procedural. - In short, the procedural autonomy of conciliation would be obtained from the speciality of its object. - That is to say that it is not the material object that disputes the litigation but the agreement reached from the act of agreement. It would be a typical case of speciality for reason, not of material law, but of procedural law. - Others, in contrast maintain the thesis of that conciliation responds to a manifestation of voluntary jurisdiction. It would not be a genuine process because the absence of a demand united to the non-existence of pleading and litigation, that trigger the sentence or a judicial resolution, would lead to its assumption as an act of the procedure by which the parties that have a dispute among whom there is disagreement reach an agreement or an agreement that precisely avoids the litigation." - The effects of this agreement would be similar the ones obtained transactionally, a circumstance that makes a certain doctrine to think that the act would be purely conventional, but without undermining judicial activity because the judge has an active participation and the arrangement is made in the scope of the process and these characteristics allow us to maintain that conciliation is the fruit of the jurisdictional activity contentious. - Now well ,the synthesis of these positions reflect, in some way the institutional destiny that is assigned to procedural law and, specifically, to that current manifestation of the judicial function. - In short, either the justice is achieved by exclusively resolving conflicts, or it is allowed to also achieve that objective, when the institution is useful and effective, reaching peaceful solutions in intersubjective conflicts. - Evidently, pre-procedural conciliation (but jurisdictional) has a procedural basis because it is installed as a pre-requisite of admissibility of the suit when it is set up as mandatory. - If it were, in its place, optional, it also would not lose its condition as an act of the process because if the parties are in a position to compromise their interests and decide to do so before a judge and not as a private deal, justly that intervention gives meaning, utility and effectiveness, to the same act of agreement. - For its part, if the composition is achieved in a hearing (intraprocedural conciliation), without hesitation at all it is obtained the same conclusion. - For example, the article 36, paragraph 4 of the Code of Civil and commercial Procedure of Argentina establishes that Judges and tribunals can, at any time , order the personal appearance of the parties to try to conciliate or to require explanations that they deem necessary for the object of the litigation , without the mere proposal of formulas for conciliation being prejudicial. ## IV. FUNDAMENTO DE LA CONCILIACIÓN - Once again the procedural act that assumes conciliation could appear as a contradiction of its own terms and purposes. - If the agreement is formulated as a natural and independent process, it would be illogical to consider it as such, because the decision to go to a judge to resolve a dispute of interests assumes the failure of previous negotiations that tend to avoid justly the litigation. - It would be like saying that conciliation is a process which tends to eliminate the later process, a circumstance that highlights the difficulty to understand it as an independent process. - On the other hand, if conciliation is interpreted as an procedural act, it is possible to conclude a clear and precise purpose, to reach a voluntary agreement in the difference of claims without the need to exhaust a judicial instance that, generally, is long and tedious , and does not respond to the spirit of the man anxious to achieve the recognition of right. ## V. RESULTADOS DE LA CONCILIACIÓN - Established the character of the conciliatory act, let's observe the results that can be obtained. - Favored as a stage of the process amicable agreement is conveyed in different possibilities such as the three typical forms of settlement: abandonment, transaction and submission, while the hearing takes place in the plane of an executive process there are similar modalities such as remission, waiting, forgiveness or novation of debt. - Any of these forms agreed responds to decisions that are made by those who assume them. - If it is manifested as recognition of one party to the other it may find a submission expressed or voluntary compliance with the plaintiff's claims; if it were an agreement that tends to avoid the process (e.g.: forgiveness, waiting, abandonment, etc.) the consequent statement of the judge homologating the act will determine the legal meaning assigned to self-composition. - Each assumption challenges the scope that should be given to that consequence (result of conciliation) in relation with the activity that the parties and the judge fulfill. - This condition shows that when we talk about conciliation , it is not thought of in the strict sense of the term, but in a broader sense that tolerates the declination of interests, the absolute submission and the same transaction or waiver reciprocal to preceding irre-ductible points. ## VI. BENEFICIOS QUE REPORTA LA CONCILIACIÓN EN SEDE JURISDICCIONAL - In previous paragraphs we superficially mentioned the discussion that problematizes the introduction of the conciliatory act in judicial or administrative jurisdiction. - Experiences of comparative law are interpreted differently, concluding in auspicious or disillusioned results, both for one system or the other. - Denti reflects that there is no common identity among countries that enables to state common characteristics and propose homogeneous systems. - On the other hand, Cappelletti (also Vescovi, Hitters, Morello, among others) maintain a common denominator installed in the trend toward non-contentious conciliatory forms. - Disagreements also arise when it comes to occupying the role of the State in these discussions. - Calamandrei said that conciliation by public bodies that resolve disputes between particular parties was a typical case of public administration of private law which, without any objection , it could be entrusted the judicial bodies. - In truth , domestic experience shows that the intention towards conciliation in public establishments ("e.g.: administrative claims ; appeals before the Ministry of Labor in labor disputes, Arbitration Committees of the Grain Exchanges, Values, etcetera.) have disparate responses and their effectiveness depends a lot on the dissemination and knowledge that the particular has of the possibility . - Lack of information generates the question, and as it moves the adventure into the unknown, the possible risk to face , difficulties to understand and trust in what is not known. -In short, the key is in the knowledge of rights. The benefits that the system can show. - Convinced of these deficiencies , and taking into account the popular expression "a bad settlement is better than the best lawsuit ", which is an incontrovertible reality, we think that , for the moment , it is not convenient to open the conciliatory alternative to instances that are not jurisdictional. - Moreover, as it is necessary to regain the confidence of the citizen in justice, its perfection is appropriate. ## VII. OPORTUNIDAD PARA LA AUDIENCIA DE CONCILIACIÓN - The time spent to hold the conciliation hearing has great importance because it incorporates the requirement of the opportunity suited to the purposes that are sought to be accomplished. - Different systems that have been set up to establish conciliation as a stage of the process have addressed this issue of great significance, in such a way that they appear as forms of it: - A preventive activity, established as optional for the parties on having a body of the State ready to compose the conflict over the basis of bringing closer together with its good offices the interests that collide (e.g.: Justice of the Peace conciliators, etc.) - The prejudicial activity, established as a requirement of admissibility of the claim, where parties are obliged to submit their claims to the same judge that must decide on the material reason for the process, that will try to settle disputes without reaching the final sentence. - Activity held in any stage of the process (e.g.: article 36, paragraph 2, section a, Argentine Law ) generally rules as an attitude discretionary of the judge, or available to the petition of the parties.