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RECOMMENDATIONS AND CHALLENGES FOR THE NEXT 100 YEARS

Santiago, January 29, 2019


In the coming months, the Ministry of Justice will release a new version of the New Civil Procedure Code bill.


In view of this, a group of academics and professionals from various public and private institutions convened by the Justice Studies Center of the Americas (JSCA) and the Universidad Diego Portales (UDP) and Universidad Alberto Hurtado (UAH) Law Schools discussed the design, scope and premises of this governmental decision.

 

With a view to the future and thinking about the type of civil justice that we want to have for the next 100 years, we discussed the opportunity to introduce civil dispute resolution mechanisms that are separate from and complementary to the judicial process in the context of the current discussion of Civil Procedure Reform.
Below we present a set of recommendations that we believe are necessary in order to move towards comprehensive civil justice in Chile.


1. The goal of civil justice should be the strengthening of democracy and the rule of law.


2. One of the main objectives of civil justice should be to provide access to justice for the protection of rights and dispute resolution to everyone. This is a challenge that involves collaboration between all three branches of government and the promotion of education to strengthen a culture of prevention and the effective enforcement of rights. To that end, there is an urgent need for inter-institutional dialogue and dialogue with civil society and among the various stakeholders in the system (judges, attorneys, legislators, Ministry of Justice officials and professionals who work in conflict management, among others).


3. A broad vision of civil justice requires that we consider not only the work of the courts in this area, but also the work of local police courts because they have a significant amount of jurisdiction over civil matters and a broad presence.


4. From this perspective, all civil conflicts must be addressed and resolved by civil justice regardless of the amount involved or their complexity. This includes a wide range of disputes, such as those that develop between neighbors, within communities, among multiple parties, and those involving collective and social issues.


5. The civil justice that will be in place for the next 100 years must be built on the foundation of a broad offering of dispute resolution mechanisms that includes judicial process and other collaborative formulas such as mediation and conciliation.


6. Collaborative mechanisms must be available at all times, before and during the development of a judicial process and even during the execution stage. The parties must be able to approach them on their own initiative as well as through referrals that originate in the judicial system.


7. There is a need to build an adequate and effective incentives system to encourage the use of collaborative mechanisms, privileging negotiated outcomes over judicial process as well as an efficient system for ensuring that the agreements can be fulfilled and enforced.


8. The regulation of alternative mechanisms must be carried out with a focus on integration and coordination with the judicial process and should be included in the Civil Procedure Code.


These recommendations are endorsed by the following individuals:

  1. Boris Fiegelist, Professor of Alternative Dispute Resolution, Universidad Andrés Bello and Universidad de Concepción
  2. Carlos Silva, professor, Universidad Alberto Hurtado
  3. The Chilean Private Mediators Network represented by its president, Isabel Ramos
  4. Enrique Letelier, Professor of Procedure Law, Universidad de Valparaíso
  5. Felipe Viveros, mediator, Mediale Comprehensive Mediation Center, university lecturer on dispute resolution
  6. Gladys González, mediator
  7. Gonzalo Fibla, research attorney, Justice Studies Center of the Americas
  8. Gonzalo Frei, professor, Universidad Alberto Hurtado
  9. Isabel González, Director of the Universidad Central Mediation and Arbitration Center
  10. Lidia Poza, judge, Ninth Civil Court of Santiago
  11. Lorena Espinosa, research attorney,
  12. Macarena Vargas, Professor of Procedure Law, Universidad Diego Portales
  13. Marcela Fernández, professor, Universidad de Valparaíso Law School
  14. Marco Fandiño, Research and Projects Director,
  15. Mirtha Ulloa, professor, Universidad Alberto Hurtado Nathalie Walker, Pro
  16. fessor of Procedure Law, Universidad Adolfo Ibáñez
  17. Paula Correa, professor, Universidad Diego Portales Mediation Legal Clinic
  18. Rafael Silva, attorney, Supreme Court Research Office
  19. Professor of Procedure Law, Universidad Diego Portales
  20. Rodrigo Silva, Attorney, Supreme Court Research Office
  21. Rosa María Olave, Universidad Alberto Hurtado
  22. Rosario Falco, Alternative Dispute Resolution Unit, Labor Directorate
  23. Rossana Garay, Mediator and member of the Mediation Unit, Education Department
  24. Trinidad Álamos, Secretary General of the National Arbitration Center’s Executive Committee
  25. Viviana Muñoz, judge, Fourth Local Police Court of Santiago

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