Mediation in Ecuador is an informal, non-binding and private means of discussing and hopefully bringing a dispute to a close via settlement by and between the parties at issue, so as to prevent the need to go to an Ecuadorian Court to seek a legal judgment from an Ecuadorian judge. The parties to any Ecuadorian mediation proceeding set a meeting with an approved disinterested independent third party, whose charge and specific intention is to if possible, arrive at a mutually acceptable resolution between the parties of any dispute, that will bring the matter to an uneventful and satisfying finale, without the need to make use of the Ecuadorian Courts and thus not become ensnared in the Ecuadorian legal system.
It is of specific note that no party whom participates in an Ecuador mediation proceeding is required to accept or reach a resolution during the mediation, and absolutely nothing of what is said (or unsaid) during the mediation enters into any Ecuadorian court record in the event that the parties to the mediation don’t agree on a mutually acceptable solution to their dispute. Instead, and as first stated above, the Ecuadorian mediator’s only job and hope is to assist the parties to come to a mutually acceptable resolution, if possible, and assuming that each party to the dispute shows up to the mediation meeting (which itself doesn’t always happen and in any case isn’t punishable, sanctioned or otherwise have any effect on any Ecuadorian legal case resulting there from any such failure of either party to show up to the mediation). Generally, for Expats residing in Ecuador, having an Ecuadorian Lawyer be at their side so as to arrange, coordinate and handle their mediation, is the most reliable and surest way of processing a mediation in Ecuador to the point of a well prepared, completely proper and most successful possible conclusion, whatever that might be in each individual and unique case.
And so, in the remainder of this article, I shall cover the different kinds of legal matters that can generally be processed via mediation, the opportunities that mediation provides, and what actually happens during mediation.
What Types of Legal Matters are able to be Mediated in Ecuador?
The parties to most legal cases or disputes are permitted to avail themselves of mediation in the vast majority of civil matters. However, circumstances that don’t take the form of a potential legal case can also be processed via mediation. Such as, an argument with the owner of the house next-door as to a tree that grows on the border of both properties, or the amount of illumination emanating from a neighbor’s path or roof lighting system, aren’t usually the kinds of disputes that warrant the filing of a legal case against another, at least not in Ecuador..And so, as per any of those type matters rearing its ugly (though less than litigious) head, one party requesting that both sides head to mediation so as to resolve their disagreement, is usually par for the course. Thus, almost any type of non-criminal matter that you can think of is (or at least can be) ideal for mediation. That said, in my experience as an Ecuadorian lawyer, the most common type of disputes in Ecuador, and those which are best resolved through mediation, are typically ones that involve tenancy matters, disagreements between neighbors, business/debt issues, family matters, employment situations, etc. In Ecuador, it can usually be written into a contract or even be a requirement at law that mediation first be attempted in the case of certain type disputes, prior to the dispute proceeding to become an actual Ecuadorian court case (though once again as first stated above it isn’t required for the parties to reach an agreement at the mediation and even showing up to the mediation isn’t required if one or more parties to the mediation have no interest in doing so for whatever reason).
Opportunities Provided by Mediation
For a number of reasons, mediation in Ecuador can be highly desirable in comparison to pursuing a court case in Ecuador against another. The potential opportunities afforded by mediation in Ecuador are as follows:
- Privacy – Generally, whatever the parties state at any mediation is required to be held in the strictest of confidence and therefore not ever able to be utilized by either party in any type of possible future legal case (whether with regards to that mediation’s matter of issue or a future one). Ecuadorian lawsuits, however, are in fact typically public record and researchable/reviewable by third parties.
- Lower Cost – Matters settled during mediation usually cost a mere fraction in comparison to the combination of attorney fees and court costs which are paid in any type of formal litigation in Ecuador.
- Speedy Processing – Ecuadorian legal cases can be litigated over the course of years so as to ultimately obtain a judge’s final decision (that not even counting Court Appeals in Ecuador), whereas mediation is usually over and done within a matter of minutes to hours in a single “sitting down together” of the parties.
- The Decision is Made by The Parties – No Ecuadorian judge makes the determination of who is right, wrong or how much/what one side has to pay or do for the other – rather, the parties are able to determine that together.
- Communication Occurs Between the Parties – As opposed to only using their lawyers to do so in a long and drawn out Ecuadorian court battle, the parties can and will be encouraged to speak with one another during mediation, and done so most advantageously while having their Ecuadorian attorney at their side throughout the entire mediation.
What Happens in the Mediation
During any Ecuadorian mediation, one can expect as follows to transpire:
- Explanation of Process – The Ecuadorian mediator provides an explanation of the requirements and process that will occur during the mediation.
- Opening Statements of the Parties – Each party will have several minutes to introduce themselves and the position they have/take with regards to the dispute.
- Confirmation of the Dispute – The mediator will pose certain questions to the parties collectively, so as to best understand the reason(s) for their dispute and the potential for a mutually agreeable resolution thereof.
- The Caucus – The mediator will hold separate (individual) meetings with each party to the dispute, so as to learn what each side wants and is/isn’t willing to compromise with, so as to determine any/all area(s) of potential agreement(s) between the parties.
- Negotiation – The mediator will do their best so as to assist the parties to come to a mutually acceptable agreement or settlement (if/when possible).
- Signed Agreement – In the case that the parties can come to a mutually acceptable agreement, the mediator will type up the agreement in documentary form and the parties sign the agreement so as to memorialize it. Any Court in Ecuador having jurisdiction over a legal matter will generally always honor such form of executed document resulting from mediation that is/was performed in Ecuador.
And so, given the prospect that any potential lawsuit in Ecuador can (and usually will be) costly, time consuming and wrought with aggravation, the Ecuadorian mediation process is a fine, honorable and well tested way of resolving disputes between parties whom would likely otherwise fight it out in the Ecuador Court system and have sleepless nights in the face of the certain uncertainty that any such Ecuadorian lawsuit usually otherwise entails.
Sara Chaca (Attorney ‐ Abogada) is a seasoned Ecuadorian Lawyer, who principally serves Expats in making their moves to Ecuador, as well as for any legal issues that arise or become actionable for her Expat clients to undertake in their new lives here in her beautiful country. Sara resides in Cuenca with her family, which consists of her American husband and 2 daughters (as well as her parents and siblings), and when not working, she enjoys spending time with her family in Cuenca’s majestic Cajas Mountains and local parks & fairs of Cuenca, plus visiting the coast as well as the many gem towns of Ecuador. Sara’s personal email address is firstname.lastname@example.org, and her personal cell phone number is 099.296.2065. Sara has a less than 24 hour first response policy, in that if you email or call her, she WILL return your first email or first phone call in less than 24 hours (more typically closer to 24 minutes). Most importantly, all first time consultations with Expats for any type Visa or Legal matter(s) are always FREE OF CHARGE.