Alternative dispute resolution (ADR): potential new prerequisite for filing a civil lawsuit.
The Anteproyecto de Ley de Medidas de Eficiencia Procesal del Servicio Público de Justicia [Preliminary Draft Law on Procedural Efficiency Measures for the Public Justice Service] was approved on December 15, 2020 and has already been submitted to a public hearing but it remains to be submitted to Parliament.
The measures in the draft bill include a new requirement for filing most civil and commercial lawsuits which is worth highlighting here: the plaintiff must first attempt to negotiate with the defendant by making a binding offer; by offering to go to mediation, conciliation or the neutral opinion of an independent expert; or by seeking a negotiation through lawyers.
Until now it has not been compulsory to attempt to negotiate prior to suing, although when the plaintiff has sent a request to the defendant, this fact is taken into account in order to assess good faith. However, the new regulation aims to encourage more thorough action than a simple request given that involves offering negotiation rather than a mere ultimatum.
In our view, if this regulation is approved it would encourage mediation, which would in turn reduce the volume of lawsuits in the courts. However, it could also place a significant burden on plaintiffs due to the delays it entails and the current lack of definition of the regulation, thus it will be necessary to examine the final text of the law that will be approved in due course.
Dispute Resolution Area