Alternate dispute solution methods
Introduction
To establish a peaceful social environment, it is necessary. To prevent these social conflicts, it is important to establish a peace education, since this can create future and adequate alternatives for the existence of a charity that society needs to develop. When we talk about peace we not only refer in the negative sense, that is, in the absence of personal violence, war, terrorism and disturbances, rather, in this present work we will focus on peace in the aspect of the human being, since Peace is not only conceived if it is not in relation to others, mainly because of human behavior. (Gomez & López, 2018).
According to María Carmen Buqué, (Barcelona, 2003) we must understand peace as the creative transformation of conflicts, and their key words are, knowledge, imagination, understanding, dialogue, solidarity, integration, participation and empathy. This is why this work will talk about how alternate methods of dispute solution as a peace tool, that is, the methods with the culture of peace are related. They will mention and describe what are the alternate methods recognized in Mexico and how they relate and how to reduce conflicts.
Developing
According to the author Emilia Iglesias Ortuño (2003), conflicts are situations in which two or more people enter opposition or disagreement because their positions, interests, needs, desires or values are incompatible, or are perceived as incompatible, where they play a role Emotions and feelings are very important and where the relationship between the parties in conflict can be strengthened or deteriorated according to the conflict resolution process.
For the reduction of conflicts in the daily life of the human being, it has been tried to implement the education of the culture of peace, even thus avoid all kinds of violence, since peace can be understood as the creative transformation of conflicts, with the purpose of formulating a solidarity, humanistic and harmony culture. (Torremorell, 2003). The Royal Spanish Academy (2018) defines peace as a situation in which there is no armed struggle in a country or between countries, as well as the relationship of harmony between people, without confrontations or conflicts.
Norwegian sociologist and mathematician, Johan Galtung, also author of books and articles regarding the sociology of peace, was one of the best known people regarding the theme of the study of peace known as Irenology. Irenology is defined as peace or peace studies are denominations for an academic discipline, part of political science and sociology, which deals with the multifactorial study of international conflicts and peace threats. (Cabello Tijerina, 2013) The objective of Johan Galtung is summarized in the thesis "peace with peaceful media" that as a horizon of research and peace -oriented actions represents a new and renewed anthropology that puts his confidence in man, A true change of peace paradigm by violent means to peace by peaceful media, gradualness in the achievement of peace and a non-violent project for its coherence between means and ends. (Cabello Tijerina, 2013)
In summary, the purpose of Galtung is that violent cultures and violent structures cannot be solved by violence, since this would lead to new violent structures and also reinforce a war culture. The way to break this vicious circle is to put a culture and a peace structure before where there are the necessary mechanisms to solve conflicts by non -violent means. The contribution made and of non-violence as a practice to generalize in the management and transformation of conflicts. (Cabello Tijerina, 2013)
Peace culture and alternate methods of dispute solution
According to the United Nations, (1998), the culture of peace consists of a series of values, attitudes and behaviors that reject violence and prevent conflicts trying to attack their causes to solve problems through dialogue and negotiation between people, Groups and nations. The dialogue and negotiation that refers to the definition issued by the United Nations, is a main tool to reach peace, since with dialogue, empathy, nonviolence and creativity are encouraged to overcome the conflict. Dialogue and negotiation can be intervened by a neutral and impartial third party for the solution of a conflict.
The third article, Incited D, of the Declaration and Program of Action on a Culture of Peace of the United Nations Organization, establishes that the full development of a culture of peace is integrally linked to the possibility that all people to all to all The levels develop skills for dialogue, negotiation, consensus formation and the peaceful solution of controversies. (Nava Zetina, 2013) This article is clear in establishing that to promote the culture of peace it is necessary for people to have the necessary powers to dialogue, negotiate and solve the controversies peacefully. Because the article mentioned in the previous paragraph, it is recognized that the alternate methods of dispute solution is linked to the culture of peace, since in these methods the negotiation, mediation, conciliation and arbitration is used in which it is used the dialogue and in its case an impartial third to guide and direct the parties to a favorable resolution for both.
Alternate dispute solution methods
In addition to the alternate methods of dispute solution encourage the culture of peace, it is necessary to establish that these methods are also implemented by the crisis of justice that exists in our country. This crisis of justice affects the culture of peace since the alternate methods of dispute solution are not carried out indirectly, due to the elements that will be explained below. The crisis of justifies in all areas of law, the legal processes contradict the essence of the same, the norms have dilated their social sense, the achievement of justice is not expedited and the stages of its execution are slow, so it is seriously Generate comprehensive reforms to give it dynamism. (Fix-Fierro, 2002) In addition to the foregoing, the crisis of justice violates the rights of Mexicans in receiving a prompt and expedited justice by those who apply the laws is considered.
The elements that give rise to the justice crisis are the following:
- Insufficiency: the Judiciary, in charge of resolving the litigation, does not have sufficient capacity to resolve them, causing delay in
files and breach in procedural terms.
- Difficult access to justice: the costs of justice are high and, therefore, there is inequality in society since not everyone has access to justice.
- c) Ignorance: society has no knowledge of alternate methods to solve its conflicts, there are no long -term public policies that promote alternate media, translating into conformism and lack of preparation.
- d) Lawyers: Legal litigants or consultants only think of the economic benefit, without thinking that solution benefits society.
- e) The rest of the professionals: the other professionals who believe that by not knowing the laws, problems cannot be solved.
However, before addressing and developing the issue, I allow myself to point out that article 17 of the Political Constitution of the United Mexican States recognizes in favor of Mexicans the possibility that conflicts can be resolved through alternative mechanisms of dispute solution, by What they can choose a procedure in which the same people, without the need for a third jurisdictional intervention, solve their problems.
The following constitutional isolated thesis issued by the Second Collegiate Court in Civil Matters, which to letter says: “Access to alternative dispute solution mechanisms, as a human right as a human right, as a human right, as a. Enjoys the same dignity that access to the jurisdiction of the State. Articles 17, second paragraph, of the Political Constitution of the United Mexican States, 8 of the American Convention on Human Rights and 14 of the International Pact of Civil and Political Rights, recognize in favor of the governed effective access to the jurisdiction of the State , which will be entrusted to courts that will be expeditious to impart justice, issuing their resolutions in a prompt, complete and impartial manner; In that sense, the Federal Constitution in the aforementioned article 17, fourth paragraph, goes further and in addition to guaranteeing access to the previously established courts, recognizes, as a human right, the possibility that conflicts can also be resolved through mechanisms Alternatives of dispute solution, as long as they are provided by law. Now, as for the alternative dispute solution mechanisms, the idea that the parties of their own problem (litigation) and, therefore, they are the ones who must decide how to solve it, so They can opt for a broad catalog of possibilities, in which the process is one more.
Alternative media consist of various procedures through which people can resolve their controversies, without the need for jurisdictional intervention, and consist of negotiation (self-composition), mediation, conciliation and arbitration (heterocomposition). In that sense, among the considerations expressed in the exposition of reasons of the constitutional reform to the aforementioned article 17, of June eighteen, two thousand and eight, it was established that the alternative mechanisms of dispute solution ‘are a guarantee of the population for the Access to a prompt and expedited justice … will allow, first of all, to change to the paradigm of restorative justice, will promote a more active participation of the population to find other ways to relate to each other, where personal responsibility is privileged, respect for respect for another and the use of negotiation and communication for collective development ‘; Given this normative context, it must be concluded that both judicial protection and alternate dispute solution mechanisms are established in the same constitutional level and with the same dignity and have as its object, identical purpose, which is, to solve the differences between the subjects that are under the empire of the law in the Mexican State."
From the previous isolated thesis that the Magna Carta de México in its numeral 17 enshrishes the right of access to a prompt and expedited justice, so that the alternate mechanisms of dispute solution, allowing an active participation in the population to relate between Yes, aiming to solve the differences between subjects. Likewise, according to the Law of Alternate Mechanisms for the Solution of Controversies of the State of Nuevo León, it establishes that alternative mechanisms are the procedures other than ordinary justice that allow to prevent, address and solve controversies voluntarily and collaboratively.
Alternative mechanisms will be implemented in person or in which cases in which it is appropriate, at a distance through the use of information and communication technologies. It is important to note that alternate dispute solution mechanisms are based on the principle of autonomy of the will of the parties, since if one of the arts is not interested or simply does not want to solve through these mechanisms, you cannot reach to an arrangement through these techniques. Now, for a better understanding I allow myself to mention and describe the alternative solution mechanisms recognized and used in Mexico, being negotiation, mediation-conciliation and arbitration.
The negotiation
Negotiation is a process during which two or more parts with a common problem, through the use of diverse communication techniques, seek to obtain a result or solution that satisfies in a reasonable and fair way its objectives, interests, needs and aspirations. In the negotiation there is a negotiator who must have the skills of creativity, touch, seriousness, language, persuasion, communication capacity, analysis, professionalism among others. (Gomez & López, 2018). In other words, the parties in a controversy establish direct conversations between them, without the participation of third parties in search of a solution to the disagreement. (Vallarta Brown, 2016)
Mediation-conciliation
Mediation-conciliation is considered the alternate mechanism of more important controversies within others, due to the participation of people in the conflict and the results obtained. (Gomez & López, 2018) The Law of Alternate Mechanisms for the Solution of Controversies of the State of Nuevo León of the define as the voluntary alternative mechanism by which the intervening ones, in free exercise of their autonomy, seek to build and propose solution options to the controversy, in order to achieve a total or partial solution. The facilitator during the medication promotes communication and mutual understanding between the intervenings. The author José Luis Vallarta (2016) defines mediation when one or several people help the parties in the dispute to reach an agreement, participating in the conversations, reconciling the opposite points of view and placating the resentments that accompany all controversy.
The Law of Alternate Mechanisms for the Solving of Controversies of the State of Nuevo León defines conciliation as the voluntary alternative mechanism through which one or more facilitators called conciliators intervene facilitating communication between the participants in the controversy and proposing recommendations or suggestions that they help achieve a solution that ends it, totally or partially. The doctrinal difference between these two methods, mediation and conciliation, is that conciliation aims Conflict solution options that meet their needs or interests.
Arbitration
However, the Law of Alternate Mechanisms for the Solving of Controversies of the State of Nuevo León establishes that arbitration is the alternative mechanism by which the parties decide of a certain legal, contractual or non -contractual relationship, in which an impartial third party intervenes, calling arbitrator, which resolves the controversy by issuing an award. It is a more formal alternate method, since it requires the application of a regulation, to resolve a conflict in this way it is necessary that there is an express manifestation either in an arbitral clause or an arbitration agreement.
As you can see each method uses communication, dialogue and an impartial third to direct the parties to find a solution or in turn it is the one to propose the solution or decide how to resolve the conflict in the case of arbitration.
conclusion
In conclusion, alternate dispute solution methods also called alternate dispute solution mechanisms are a tool to promote the culture of peace. As mentioned above, the objective of peace is to transform conflicts, through knowledge, imagination, understanding, dialogue, participation, etc. A way to encourage the culture of peace is through procedures within the alternate methods of dispute solution also called alternate mechanisms for dispute solution, which are negotiation, mediation, conciliation and arbitration.
With this, methods are implemented by dialogue and communication so that the parties find a solution either for themselves, or with the help of an impartial third party which directs them to find a solution or in turn this impartial third party proposes a solution, instead , in the arbitration the parties to a procedure in which a third party solves the matter. The important thing about alternate methods as a peace tool, is that they promote values such as honesty, solidarity, participation, integration, empathy, respect, communication, among many more so that the parties find a solution that satisfies their need, interests or claims, if the need to lose or win, that is, that only one fulfills their need and interest while the other does not get anything.
Although these procedures are recognized for justice to be taught promptly and expeditiously, long -term public policies are needed for alternate means of dispute solution, since there are various factors such as insufficiency, difficult access To justice, ignorance, lawyers and other professionals who give rise to there is a crisis of justice.
By virtue of all of the above and to close with this subject, alternate methods of dispute solution are tools to promote peace, since through different mechanisms not necessarily judicial conflicts can be resolved in a quick, reasonable and acceptable conflicts where the Parties can decide for themselves or with the help of odd third parties such as resolving the conflict, satisfying their interests and needs.
Bibliography
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