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Chapter I
ALTERNATIVE MEANS OF DISPUTE RESOLUTION

Alternative means of conflict resolution,

They show us a new paradigm to confront and manage conflicts
in a peaceful and harmonious manner.
Only with the maximum of our will will we move towards a better world.

Together we will make it possible!

Enrique Pérez Rico.

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L.T. I.1 General aspects of alternative means of conflict resolution

Living in a community, no matter how small it may be, is not easy. The greater the number of
people in a group, the tendency to have differences between them is greater. The growth of a
population has the consequence of increasing conflicts of harmony. , and among the probable
causes of this phenomenon we can mention, among others: job shortages, the economic crisis,
the lack of education, the disintegration of the family unit, lack of values, etc.

Faced with this situation, the demand for solutions to conflicts through the traditional system of
delivery of justice has increased considerably, which is why the courts in most cases have been
exceeded in their effectiveness. To address this deficiency, has increased the number of courts as
well as the personnel who work in them, however, this action has not been enough to meet the
needs of a continuously growing population, so it is necessary to take into account new options to
prevent and where appropriate, resolve controversies and conflicts.

The trend in various countries is the use and application of alternative self-composition methods to
the traditional process (ordinary trial) so that the parties satisfy their interests without the need for
a third party to decide what is best for them, that is, The parties involved in conflict situations
participate directly in the solution of the conflict, taking into account their own interests, as well as
considering those of the other party.

Although a variety of alternative means of prevention and/or resolution of disputes and conflicts
could be mentioned, both formal and informal, the most common are mentioned below, these
being the following: friendly composition, mediation, conciliation, negotiation and arbitration.

With the implementation of the aforementioned means, the aim is to open the administration of
justice with citizen participation.

Yo I.2 Social environment of alternative means of conflict resolution

At the beginning we must consider and understand the relationship that exists between alternative
means of dispute and conflict resolution (MASC) and its social environment.

In accordance with Article 2 section IX. The Alternative Justice Law for the State of Baja California
defines alternative means as: mediation and conciliation procedures, as well as the restorative
process, which will allow individuals to prevent disputes or, where appropriate, achieve solutions
to them, without need for intervention by the jurisdictional bodies, except to guarantee respect for
the agreement or agreement adopted by the participants, and for its enforced compliance in the
case of the agreement.
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To relate the above to the social environment, it is vitally important and necessary to know what is
considered as such.

The social environment, also known as the social context, is everything that surrounds us and
facilitates our way of living, encouraging our daily activities to be carried out in the most
appropriate way possible, such as tools, media, institutions, individuals or events. social that
provide or intervene in our living conditions and that are presented to us daily, which are as
changing as our chores are, the same elements that surround us and determine our quality of life.

The culture of peace is gaining greater strength every day among various civil
organizations and citizen groups that, faced with the wave of community, family, civil and
commercial conflicts that have increased in our country, have taken on the task of proposing
forums, conferences, workshops and dynamics that help achieve social change, all this regardless
of the violence of armed groups.

Little by little, coexistence in harmony is gaining its space, the challenge is not easy at all,
however, the effort made by the authorities of the three levels of government (Federal, State and
Municipal) little by little is being reflected, not as We would like to, but we are moving forward, we
need a constant media campaign that manages to penetrate all corners of society to make the
population aware of the benefits offered by alternative means of resolving disputes and conflicts.

People and people long to have a peaceful coexistence, where equality of opportunity is
considered a maxim in their way of living socially, and therefore achieve social peace; We know
that social peace is not an act that occurs on its own, it has to be built and achieved through effort,
collaboration, participation, understanding, tolerance, communication and respect.

Respect for our fellow human beings is essential to be able to advance in the pacification of social
coexistence; as long as we continue to violate the rights of those around us, it will be difficult for
us to achieve the common good.

The primary objective of the use of alternative means of resolving disputes and conflicts is to
cushion and, at the time, deactivate the negative emotions and feelings that are caused by
interpersonal confrontations, which in most cases are produced by a lack of communication, the
same means that are well used and applied by professionals, will have a positive effect on society,
transcending people's behavior patterns, - a well-informed and well-intentioned community or
group is an organization with social responsibility.

Considering the human being as a person who can develop individually without the coexistence of
others, would be a mistake, since throughout history it has been proven that the human being by
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nature is social and that his participation in group, needs its environment to evolve satisfactorily,
the interpersonal relationships to which it is exposed and that are needed are elements that help
shape its way of living, its way of thinking and being appreciative, its experience of coexistence is
not acquired at a certain age, this occurs from birth in family interaction, later their incursion into
educational establishments is added, this within the sphere that surrounds the community to which
they belong and is at the same time in the society in which they live. finds himself immersed and
in which he has to live.

Coexistence as a social catalyst is the axis on which each and every one of the activities of the
human being revolves, in which the person's ability to adapt to changes and to interact in a group
is constantly tested, thus interweaving a social network, forming a community in which mutual
respect and active and positive participation should prevail so that the common interest of well-
being flows.

Human interaction is in constant movement, it is never static, since the very behavior of the
human being provokes it and makes it complex, to such a degree that its movement places it at a
constant risk of adaptation which does not always result in a positive way. Therefore, coexistence
is also constantly being reconstructed in order to achieve social peace and avoid, as far as
possible, the conflicts that could arise.

The paradigm that each individual has about things and life is different, which is why it is quite a
challenge to maintain social peace. Let us remember that coexistence is the product of a
socializing process in which the main actor is the human being.
With the application of alternative means for the resolution of controversies and conflicts, a divine
process is not proposed to prevent and solve difficult situations, it attempts to bring people
together so that through dialogue and understanding they can be placed in a position that benefits
everyone. clarify, prevent, and, where appropriate, overcome conflicts, rescuing harmony in
society.
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For the prevention and resolution of controversies and conflicts, the full disposition of people is
required, that is, their willingness to resolve the situation, being empathetic and assertive in their
participation, constructive dialogue is vital to confront and seek a solution, Otherwise it would be
difficult to find a positive and peaceful response for the parties in conflict.

Among other aspects favored in the social context and in the development of people with the use
of alternative media are:

Positive continuity to social relationships.

• It helps a personal, group and social transformation.
• Helps improve ways of dealing with conflicts.
Strengthens pacifying and constructive communication.
•
• Coexistence is triggered by the actions of people, an attitude that is not always ideal for
maintaining peaceful coexistence, however, trying to bring alternative means of resolving disputes
and conflicts to the greatest number of people so that they can be themselves who resolve their
differences, it is quite enriching, as well as positive and motivating, to move the feelings and
emotions of one person so that they understand another, it is a task that is not achieved so easily,
activating alternative means is taking a step forward and leaving atavisms to resolve
controversies, activates the dormant abilities of the human being and puts into practice the
awakening of good coexistence, resulting in an improvement in personal life.

Alternative media are presented as something positive, which have been used since primitive
times, a variety of cultures have had people and philosophies in their societies who were
responsible for resolving conflicts in a friendly manner, in South Africa Ubuntu is a philosophy.

According to the sensagent dictionary1 He makes several references to the term Ubuntu, which I
transcribe below:

A person with Ubuntu is open and available to others, supports others, does not feel threatened
when others are capable and good at something, because he is sure of himself since he knows
that he belongs to a great whole, that he It decreases when other people are humiliated or
belittled, when others are tortured or oppressed. Desmond Tutu .2

Ubuntu is seen as one of the founding principles of the new republic of South Africa, and is
connected to the idea of an African Renaissance. Ubuntu is the fundamental philosophical
concept that provided the basis for the Truth and Reconciliation Commission (South Africa),
chaired by Desmond Tutu at the time of South Africa's democratic transition. The idea of public
1 consult http://diccionario.sensagent.com/Ubuntu%20(filosof%C3%ADa)/es-es/
2 http://faculty.ccp.cc.pa.us/FACULTY/jhoward/southafrica/ubuntu.htm
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recognition of crimes against humanity in the context of apartheid facilitated a unique process of
amnesty and nation-building. Ubuntu is, for that reason, often translated as: "I am because we
are."
Parallels and similarities can also be established with various concepts to express and strengthen
the interpersonal or community bond, particularly those of other peoples organized in horizontal
societies and not in central and hierarchical states:

❖ Rohayhu which translates from modern Guaraní as "love" or "friendship", Pierre Clastres
(1974), but more broadly it is "the life of the tribe and its will to live, solidarity among equals."
❖ the Ayni, pre-Columbian principle of the Andean peoples (the word is Quechua) of
economic and social solidarity between communities.

This idea of "humanity" ( humanity in English) means that the Ubuntu philosophy can be applied to
other areas such as sports or business; even to leadership, because to ensure that a social group
moves following the values of Ubuntu, it is essential that its leader is also an Ubuntu leader, as
commented by Albert Figueras (2010) and whom I quote:

Origin and meaning. Mental attitude prevalent among the natives of the southern tip of Africa,
arises from the popular saying "umuntu, nigumuntu, nagamuntu", which in Zulu means "a person
is a person because of others."

The above makes us reflect on how behavior based on hope and the future can influence our lives
and our society, without burdening us with the past that causes us negative experiences and
regressions, how extraordinary the use of alternative media can be. of dispute and conflict
resolution if they are adopted as a way of life and managed appropriately, whether formally or
informally.

The alternative means of conflict resolution (MASC), to manage the possible solution of conflicts,
place the parties in controversy or conflict face to face, so that they are the ones who conclude
what were the causes or reasons that triggered the event, places them In the position that they
are proactive in finding a solution and not looking for blame, the MASC are projected towards the
future and not in the past, it avoids confrontation and is based on the parties being the ones who
find the most suitable solution that satisfies the needs. interests and needs of those involved,
discarding as soon as possible the negative positions of the parties, negative positions being
understood as all behavior that prevents the solution of the setback as soon as possible.
Alternative dispute resolution methods are presented as an option for access to citizen
justice without the strict and rigid application of the legal norm, leaving it within the reach of the
individual to determine how they can resolve their conflicts with the participation of those affected,
in the understanding that it does not replace positive law, leaving its application safe in the event
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that an agreement or agreement is not reached, in addition to the fact that not all conflicts and
violations of positive law are susceptible to the application of the MASC.

1.3 Crisis of Justice

In order to give our opinion on this topic, we must take into account, first of all, the definition of
each of them.

Crisis : Difficult or complicated situation.

Justice: Constant situation and perpetual willingness to give each person their right, live honestly,
do no harm to anyone and give each person what is due to them. (Roman Law, Ulpiano).

The observance and application of justice in our country is quite complex and in some
cases deficient, so we are not exempt from social discontent, resulting in the existence of a crisis
in social peace, as palpable in the present. The little importance that had been given to citizen
coexistence, harmony and social justice was evident, however, as a result of the disagreements
expressed by the population in relation to the administration of justice, and burdened by acts of
corruption, influence and impunity of some politicians, officials, as well as people with economic
power, has caused citizens to raise their voices in protest.
Forums, conferences, citizen consultations, as well as meetings to seek social peace and
respect for human rights have been evident throughout the country, but one thing is the saying
and another thing is the action of such a wonderful philosophy. In response, the State has
implemented constitutional modifications that quell part of the crisis in the administration of justice
that we have suffered for so many years.
The efforts made by city councils, as well as by governments, both state and federal, in the
face of criminal acts, are a reflection of their lack of effectiveness in wanting to impose their
authority; they have even had to resort to the famous trust tests within its institutions, this
government attitude must be recognized by making public the corruption that exists within its
police forces.
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We cannot speak of an efficient administration of justice, it is enough to remember the famous
documentary called “alleged guilty”, in which the deficiencies we have, both in compliance with
due process, are revealed and made public, both nationally and internationally. , as well as in the
preparation of the elements of the judicial apparatus, be it judge, agreement secretary, public
ministry, investigative agents, etc.
In criminal matters, in the traditional process, the fabrication of witnesses was (and possibly
continues to be) a custom that did not seem to matter to the person in charge of dispensing
justice; the inquisitorial stance of the public ministry was an aberrant attitude that, without caring
that the alleged was innocent, he was treated or treated as a true criminal from the beginning of
the preliminary investigation, now an investigation folder until the sentence was handed down,
even currently the actions of the personnel in charge of carrying out the investigations, sometimes
they have nothing of investigation, much less of veracity (with the exception of some cases), it is
worth mentioning that with the implementation of the new adversarial criminal system, the
atavisms that have so affected the credibility in the administration of justice will be changed.
In civil, family, commercial, etc. matters, there are matters in dispute
that are sometimes won or lost due to fatigue and not due to the application
of the law, that is, the prompt and expeditious application of the law is
conspicuous by its absence, priority is given to it. to the matters in which the
litigant shows greater “interest”, it is also recognized that in some states of
the republic progress has been made in the matter, however, we still find
people who, more because of their relationships and political influences than because of Their
abilities and knowledge occupy positions or positions of judicial responsibility and that at a certain
moment serve particular interests in the administration of justice, a situation that is totally unfair
and far from what a society expects from its representatives.
To affirm that our system of administration and administration of justice is at a stage in
accordance with the needs of all Mexicans would be totally wrong, that sentences are handed
down with the observance of due process would also be wrong, unfortunately we have become
accustomed to seeing and hearing (not listening) how matters are litigated through the media,
creating the citizen grand jury through public opinion. Legal norms have been created for the
protection of journalists, legislators, officials, etc. As if all Mexicans were not equal, as if the lives
of some were worth more than those of others.
Our reality is palpable, Mexican society demands a better administration of justice, that is
equitable, a better Mexico is demanded, in which the opportunities to obtain protection from the
authorities truly manifest themselves. Many Mexicans believe that it is time to take the big step
towards judicial modernity and its application, to make changes in background that
benefit coexistence and social peace.
With independence of what former it is also just to highlight that
in Mexico we are
moving forward, moving from an inquisitorial criminal system, in which writing predominates as a
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way of litigating, to another accusatory and predominantly oral criminal justice system,
constitutional changes that open the way to alternative means of resolving disputes and conflicts
and that give the guideline to delegate part of the administration of justice to the hands and power
of citizens; The state's monopoly on the matter has ceased to be so in certain matters, the
implementation of oral trials today is a reality in the Mexican Republic, abbreviated trials,
restorative justice, and other reforms and additions to our justice delivery system It gives us new
hope in terms of the administration and delivery of justice, greatly reducing the crisis discussed.

1.4 Multidisciplinarity and Interdisciplinarity in the MASC

One of the main benefits of Mediation and all alternative dispute resolution methods is
multidisciplinarity and interdisciplinarity, it is a true encounter between different professions and
disciplines.3 .
The application of mediation and MASC is based on the fundamental premise of the direct
participation of people in the solution of their conflicts. This shows that the application of
alternative methods is a matter of knowledge of their benefits and characteristics, therefore, it is a
matter of cultural nature.4 .
I agree with what was stated by teachers FRANCISCO GORJON AND KARLA SAENZ, the
application and use of MASC are a matter of culture, we must learn to live with conflict and take
advantage of the opportunity it gives us to make the best of the situation. The participation of
specialists in the subject regardless of their profession of origin clearly and effectively tells us that
multidisciplinarity and interdisciplinarity are evident, substantially taking advantage of the best of
the profession of origin of each of the specialists at the time. to participate in mediation,
conciliation, negotiation or arbitration.
The multidisciplinarity of alternative dispute resolution methods is a characteristic that gives
them success and positive results; they reflect the essence of the different professions or
disciplines that science originates.5 .
Every action in life involves a movement of the framework of human rationality, of the
interdisciplinarity of things, since it is linked to a countless number of facts and actions in life. 6 .
The MASC are multidisciplinary because different disciplines intervene to resolve the
conflict; for example, the handling of alleged medical negligence involving lawyers and doctors 7 It
is interdisciplinary because the elements of one discipline are applied to another. This is the tool:
3 Gorjón Gómez, Francisco Javier and Sáenz Garza, Karla. Alternative Dispute Resolution Methods. Ed. CECSA,
Mexico, 2006. Q. 11
4 Gorjón Gómez, Francisco Javier and Sáenz Garza, Karla. Alternative Dispute Resolution Methods. Ed. CECSA,
Mexico, 2006. Q. 11
5 bidem
6 Mnookin, R. et al. Mediation. An interdisciplinary response. Ed. EUDEBA, Argentina. 1997
7 Valle González, Armando. et al. Medical Arbitration. Theoretical foundations and case analysis. Ed. Trillas, Mexico,
2005
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a system of thought that, although it belongs to one, helps the other. 8 ; In other circumstances, the
mediator uses theatrical art, using body language to persuade and direct the mediation process. 9 .
In this regard and emphasizing interdisciplinarity, Aiello de Almeida 10 affirms that the goals
proposed in the training of mediators have been formulated around the contributions provided by
law, psychology, sociology, philosophy - especially ethics - and international relations - in
particular its systematization to structure its methods. negotiation-. We must not forget the
contributions of politics, history and economics, which link alternative methods with actions aimed
at achieving peace between countries in dispute.

8 Aréchaga, Patricia et al. About the Mediation clinic, case reports. Ed. Historical Bookstore. Argentina, 2004, p. 22.
9 Young, Peter. The new paradigm of NLP . Ed. Uranus. Barcelona, 2002.
10 Aiello de Almedia, María Alba. Mediation and some key aspects. Ed. Porrúa, Mexico, 2001, p. 18.
See http://blogdemediacionmonterrey.blogspot.mx/2009/02/multidisciplinariedad-e.html
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1.5 Alternative Means of Conflict Resolution, also known as Alternative Dispute
Resolution Methods (MASC).

Classification of means of conflict resolution

Self-protection or self-
defense Self-composition Heterocomposition
• The conflicts are • Only the will of the • Main feature
solved by the direct action of parties will be what ends the the third
the parties. conflict. • The third is the judge,
• You are judge and • That will can who decides through the judicial
party to be unilateral (acquiescence and process, with the formalities and
the time. withdrawal) or bilateral demands contained in the
• Respond to the form (transaction and conciliation). procedural rules.
primitive way of resolving • Many times the • In this form of
conflicts (guided by instincts parties renounce the magnitude conflict resolution is located in
of revenge or survival). of their claims in areas of the ordinary judicial process
• For example, war achieving a solution. (and in our own opinion ,
eye by eye, tooth by tooth. • can operate arbitration and amicable
prior to the judicial process, composition.)
during and after it.
• It is located in this
form of conflict resolution to:
• The negotiation
• Themediation and
• Theconciliation.

They are all those means or mechanisms other than the ordinary judicial process, aimed at
resolving a controversy or conflict between two or more parties, through an agile, efficient
procedure and with full legal effects when it comes to a judicial action; This is not the case
when it comes to an extrajudicial or informal action, both actions aim to reach a solution through
the will and consent of the parties themselves that originated the controversy or conflict,
regardless of whether or not there is the intervention of a third, as long as the controversy can be
resolved by these means.
Before, during or after a controversy or conflict, the ideal is for the parties to be informed about the
MASC, its benefits and its scope, so that they can attend to and conceptualize the conflict as best
as possible, and in this way they can find a prompt solution and satisfaction of your interests and

I.6 What are MASCs?

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needs.

What is intended with the use of the MASC is to find a faster and more dynamic solution to the
controversy or conflict, and thus avoid a judicial process which would be more exhausting, time-
consuming and costly for both parties, since the costs/benefits Sometimes they are not
proportional to the economy of the parties in conflict.

Confidentiality must be absolute, with reservation of everything acted and agreed upon, only the
parties interested and immersed in the conflict can grant the respective authorization for the
disclosure of what was discussed if they require it for their interests, otherwise they must be taken
the measures necessary to the case, for example, when it comes to information related to medical
formulas, patents, production formulas, etc.

To resolve disputes or conflicts, there are several alternative means, each of them has its reason
for being and its application, although there will be times when the parties will be the ones who
decide the means they consider most convenient to address their setback; Below are the most
common ones:

• Arbitration
• Negotiation
• Conciliation
• Mediation
• Friendly composition
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❖ Arbitration:

Through this means, the parties involved in a conflict transfer the

power and authority to resolve a controversy or conflict to an arbitrator
or arbitration court, which issues a decision called arbitration award,
that is, it is a third party who decides the solution, through this
mechanism there is a winner and a loser. A situation that, in my
personal opinion, is far from the intention of self-composed means of
conflict resolution, since one of the premises of the latter is win-win.
Although there are authors who consider arbitration as an alternative self-composition
means, I differ from this position since it is a third party who decides, which is why I position
it as a heteronomous procedure and not self-composition.
In this process, the result is based on the past, that is, the evidence is a determining factor
for the arbitrator to rule and issue his side, while the other self-composing means work as
agents of reality and assumption without necessity. that the parties provide any evidence,
another distinct characteristic is that related to the flexibility presented by the means of self-
composition. In arbitration, although the so-called consensual arbitration exists, it is also
governed by a previously established procedure and this must be respected just like the of
strict law; Given the characteristics that arbitration observes, I dare to equate it with the
procedure of a summary civil trial, which is heteronomous and not self-composed.

Although it is true, there is the will of the parties when accepting this means, it is also true
that the parties cannot abandon the procedure without having legal consequences as
happens in other alternative means, unless the withdrawal is expressed by the will of both
parties.

Even though it is heteronomous, it is still alternative and different from the ordinary trial; its
advantages include speed, economy, efficiency, reserve and suitability.
The decision (award) that is adopted is similar to a judicial ruling and is susceptible to
incidental remedies for its execution or annulment, which at the time can be resolved as to
its origin through an amparo.

It is basically reached in three ways:

1. By law: (no longer voluntary).

2. Because there is an arbitration clause agreed in a contract; either
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3. By agreement of wills after the emergence of the controversy or conflict.

❖ Negotiation or direct settlement :

It is a MASC, by virtue of which two or more people intend to

manage the solution of their controversy or conflict by themselves,
or possibly intend to prevent a conflict in the future, the above
without the intervention of a third party, that is, only
The interested parties intervene, and they may have legal representation at the time of
negotiation. The total collaboration of the parties is required to grant mutual concessions
and achieve an agreement that fully or partially satisfies the interests of those involved.

The commitment reached by the parties is established in writing in a transaction document,

which is signed after the parties have reached a consensus on the disputed facts or rights,
it being mutually agreed that the reason for the controversy or The conflict has been
resolved, without the need to resort to a judicial process.
One of the characteristics of this means of dispute or conflict resolution is usually its
efficiency and effectiveness, in which excessive expenditure, both financially and in time, is
avoided, compared to an ordinary judicial procedure.

❖ Conciliation:

Means by which two or more people in conflict attend to and manage the
setback by themselves and with the help of a third party called a
conciliator, the third party, who through the communication it promotes,
aims together with the parties to find a possible solution. solution of their
disputes, this third party must be a person specialized in the matter, who
at all times must be neutral and impartial, may propose settlement
formulas to the parties but must not impose them, the parties will always be free to decide
what that benefits their interests, they may choose to take advantage of any or all of the
conciliator's proposals, without this being mandatory. In criminal matters, the conciliator
usually focuses more on repairing the damage than on the relationship (without this being a
rule).

Let us remember that in our country (Mexico) conciliation, among other provisions, is
observed in the Federal Labor Law, which was reformed in 2019, which
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contemplates work conciliation centers; which is different from what is intended in the State
Alternative Justice Centers (JSCA).
❖ Mediation:
By virtue of this means, a third party called a mediator, unrelated
to the controversy or conflict, assists people who are immersed
in a controversy or conflict so that together they co-construct a
peaceful solution to the setback, the mediator must be trained to
listen. actively to the parties, detect their interests,
de-escalate emotions, balance power and pave a path in
which they themselves, through communication and empathy, find solutions that satisfy
their needs.

The job of the mediator is that he must do everything within his possibilities, using the
appropriate techniques and tools to ensure that the parties converge on the core points of
the controversy or conflict, attending to them in an empathetic way to find consensual
aspects. , pretending that the paradigm of each of them can have points of positive
coincidence; The mediator will always be in search of the agreement of the will of the
parties so that they reach an agreement or agreement that ends the controversy or conflict.

The mediator does not propose solutions.

❖ Friendly composition:

Another means by which the solution of a controversy or conflict can be

managed is amicable composition, through it, and with the intervention of
an impartial third party, called friendly composer, vested with power
through a mandate issued by the parties. immersed in a conflict, is the one
who decides the result.

This means, like arbitration, because it is very similar in that there is no negotiation
between the parties in the solution of the conflict, and since their will is not evident in the
result, I consider that it does not comply with the maximum of win-win such as mediation,
conciliation and negotiation.

After making general mention of some alternative means of resolving disputes or conflicts,
we note the importance they could have when they are

They are considered and used in an appropriate way, especially in societies, groups,
institutions, guilds, etc.; associations where controversies or conflicts occur day by day, and
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that making use of the application of the positive norm through ordinary trials becomes
more complicated as time goes by, the excessive expenses caused by submitting to long
trials and the waste of time are determining factors in leaving endless conflicts on hold,
which sometimes cause us greater harm, -then then-, why not take advantage of the
magnificent opportunity that alternative means of conflict resolution offer us?, and In this
way, we seek a peaceful solution to some conflicts and thus seek harmony.

As mentioned, what is intended with alternative means of conflict resolution is to achieve

consensus of the will of the parties, an aspect that is not easy to achieve and even less so
when a society has not been prepared for it. this.

As a society we have been educated so that conflicts are settled in court, and to act in such
a way that whoever does it to me pays me; Although it is true that there are and will be an
endless number of conflicts that will have to be resolved in the courts, it is also true that
another part of conflicts can well be resolved with the use of the MASC.

To raise awareness in a society about MASCs and their use, active work is necessary, their
constant dissemination, as well as their benefits, orientation about mediation centers, how
they work and, above all, the preparation of the people who intend to do so. use of MASCs.

Yo I.7 The decision to use an alternative process

Forgetting atavisms and changing our way of thinking and acting is an attitude that takes
time, requires all our disposition and, above all, knowledge of what is new, although the use
of MASC is nothing new, it can be mentioned that its use regulated is from the reform of
constitutional article 17 (2008).

In the State of Baja California, the Alternative Justice Law was published in 2007, which
tells us that we actually had the implementation and application of the MASC not long ago.

Questions about the effectiveness of the MASC have been raised, and sometimes without
foundation, unfortunately among the professionals who most question its application and
effectiveness are some old school Law graduates, perhaps due to lack of knowledge on the
subject, its function and their usefulness, or because they consider them a competence in
their professional practice, which results in a decrease in their income, a totally wrong
aspect, to the extent that professionals know the benefits of the MASC, they will realize that
it is one more tool. which is counted on so that its clients can quickly and effectively resolve
their conflicts, without having to face the judicial apparatus with all that it entails.
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Investing in preparation and updating to specialize in the new system of delivery of Justice
is a responsibility of the professional to be a good professional. On the other hand,
fortunately, associations and bars of lawyers have become interested in the subject, they
have become given the task of informing and training to be able to prepare and guide their
clients so that they consider the possibility and decision of using an alternative process to
the traditional one; that is, the use of the MASC through the alternative justice centers with
Judicial headquarters.

It is necessary to explain and motivate citizens in general what the alternative means
consist of, their benefits, and how the mediation centers work, definitely that the success in
the use of the MASC rests on the will of the parties and the particular circumstances of
each matter, let us remember that not all conflicts are mediable, and especially in criminal
matters.

Yo I.8 Reasons for the use of MASC

In Mexico, as in other countries, necessary measures have been taken and continue to be
taken to implement modernity in the administration of justice. Based on my experience as a
trial lawyer, I have perceived that in the majority of the cases that I have represented, the
courts have been overwhelmed in the matters they have to attend to, meeting the needs of
a society that demands quick and expeditious justice is complex, and in these
circumstances, the government's concern is evident from the very moment it prepares and
trains its officials and employees of the judiciary to attend to and resolve matters as soon as
possible and according to their possibilities, with the implementation of the MASC, Mexico
seeks to obtain and satisfy, among other aspects, as commented by the MC José Benito
Pérez Sauceda in his doctoral thesis “Alternate Conflict Resolution Methods: Alternative
and Restorative Justice for a Culture of Peace.” (2011):

• Need to improve the jurisdictional apparatus to provide better service.

• Decongest the judiciary from the overload of matters that it suffers today
to be in a position to attend to matters with the importance they deserve.
• Expand access to justice with the direct participation of citizens.
• Possibility of deciding which mechanism is the most suitable for the peculiarities
of the conflict.
• Social transformation and citizen participation in conflict resolution.

Y specific to the MASC process

O
Another factor that must be considered with the use of MASC is the direct benefit that
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users have, making them participate in the solution of their conflicts, is taking them into
account, giving them the opportunity to find the most appropriate solution for themselves.
their interests.

• The MASC mechanics allow:

• A solution where everyone can win.
• Greater speed – less time.
• That the parties dialogue without fear that what they say could be used
later against him in a trial.
• Confidentiality, an aspect that is not considered in the ordinary trial.
• The process can be interrupted or canceled without any penalty or punishment.
• Lower cost – greater economy – compared to what a process would imply
Ordinary.
• Flexible method, the parties or specialists can agree on the MASC that they deem
more convenient depending on the particular circumstances of the case, such as:

⮚ The relationship between the parties.

⮚ The culture of the parties.
⮚ The position of the parties in the controversy.
⮚ The psychology of the parties.
⮚ The desire of the parties to maintain a relationship (neighborhood, business, etc.).
⮚ The soundness of the legal position of the parties, etc.

I.10 The MASC in Mexico

On June 18, 2008, the decree that reforms article 17 of the Constitution was published in
the official gazette of the federation, an event that gives way to citizens having at their
disposal the use of alternative mechanisms to the ordinary trial to deal with to resolve their
controversies or conflicts, this, without considering the treaties
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international ones that exist and in which the use of alternative media is reflected, in our
country little by little the MASC are positioning themselves by virtue of the effort that the
government has made.
A new vision regarding the application and distribution of justice has been launched, with
the creation of alternative justice centers (JSCA) throughout our country.

Addressing the roots of controversies and conflicts is, among others, one of the purposes of
the MASC, and in this sense, our authorities have proposed to carry out a crusade in
pursuit of pacification, respect for human rights and the administration of justice social.

Currently in our country there are congresses, presentations, working groups, conferences,
etc., related to the MASC, in which the progress, achievements, updates and achievements
that have been achieved are discussed; The training of personnel to make them specialists
in the subject is another area that is attended to on a continuous basis.

Media dissemination is a part that, at least in the State of Baja California, has not been
highlighted in a substantial way to make the community aware of the benefits and
advantages offered by the MASC.

There are different matters in which alternative means are used, including: criminal, civil,
family and commercial, neighborhood, school, business, community, etc.

In criminal proceedings, the various States of the Republic have

reformed systems that contemplate the possibility of addressing
and managing conflicts caused by crimes that are pursued at
the request of a party (complaint) without the need for forceful
action by the Attorney General's Office.
this, through the alternative criminal justice system (SEJAP),
thereby avoiding the initiation of an investigation folder, (previously a preliminary
investigation), as long as the parties reach an agreement on reparation for the damage, in
the crimes considered. serious cases, the possibility of resorting to restorative justice
becomes evident.

In civil, family and commercial matters, the trend in the number of disputes or conflicts that
are attended to through the alternative justice centers of the State of Baja California
(JSCA), regardless of whether they are treated through conciliation or mediation, Every day
it is increasing, this, according to the personnel who work in said centers.

In Baja California, there are currently offices of Alternative Justice Centers in the cities of
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Mexicali, Tijuana and Ensenada, where civil, family and commercial matters are attended
to, in addition to providing guidance, advice and referral.

L.T. I.11 Legal basis of alternative means

The implementation and observation of alternative mechanisms or means in our country is

based on our Magna Carta, and it appears, as I mentioned in previous paragraphs, that by
decree published on June 18, 2008, article 17 was reformed. constitutional and fraction of
this says to the letter:

Political Constitution of the United Mexican States

Article 17. No person will be able to take justice for themselves, nor exercise violence to
claim their right.

The laws provide for alternative dispute resolution mechanisms. In criminal matters, they
will regulate its application, ensure the repair of damage and establish the cases in which
judicial supervision will be required.

Without specifying in what matters these mechanisms may be foreseen and what they are,
an allusion is made to the corresponding criminal matters.

Political Constitution of the Free and Sovereign State of Baja California

Article 7.- The State of Baja California fully abides and guarantees to all its inhabitants the
individual and social guarantees enshrined in the Political Constitution of the United
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Mexican States, as well as the other rights granted by this Constitution.

The laws will indicate those cases in which trials will be predominantly oral, as well as their
procedure.
People will have the right to access alternative means of justice to resolve their disputes, in
the manner and terms established by the respective laws.

Alternative Justice Law for the State of Baja California

Article 4.- Alternative means will be applicable only in matters that are susceptible to
agreement, that do not contravene any rule of public order or affect the rights of third
parties.

Article 5.- Alternative means may assume the modalities of mediation or conciliation.

Article 8.- In criminal matters, mediation and conciliation between the offended party and
the accused may be carried out with respect to conduct that could constitute crimes
prosecutable by complaint and in those cases indicated by the Code of the matter,
however, the payment of compensation for the damage , as a legal consequence of the
crime, may be subject to alternative means at any stage of the procedure.

Mediation and conciliation may be carried out by the Public Ministry, who will comply with
the procedure regulated in this Law. The Agents of the Public Ministry who, under the terms
of this Law, are going to serve as official mediators, must obtain proof of specialized training
in mediation and conciliation.

Baja California Criminal Procedure Code

Alternative means of terminating the process

Chapter I
Reparatory agreements
Article 195.- Definition. - A reparatory agreement is understood to be the agreement
between the victim or offended party and the accused that results in the solution of the
conflict through any suitable mechanism that has the effect of concluding the procedure.

Law of the Comprehensive Justice System for Adolescents of the State of Baja
California H. Congress of the State of Baja California Secretariat of Services
Parliamentarians Coordination of Editorial and Parliamentary Record Last
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PO reform No. 43, September 28, 2012

SECTION III
ALTERNATIVE JUSTICE

Article 43.- Priority use of alternative justice. - The authorities will apply alternative
forms of justice as a priority.
The processing of alternative justice processes, provided that it is not contrary to the rules
provided for in this chapter, will be developed, in accordance with the provisions of the
Code, the Alternative Justice Law for the State of Baja California, the International Treaties
and other applicable laws.

Article 44.- Obligations of the Public Prosecutor's Office and the Guarantee Judge. - From
its first intervention, the Public Prosecutor's Office or, where appropriate, the Guarantee
Judge, will urge the interested parties to use alternative forms of justice in cases where
appropriate, and will explain the effects and available mechanisms.

Article 45.- Origin.- Reparatory agreements will proceed with respect to the commission of
all criminal acts, with the exception of those crimes considered serious as provided for in
Article 92 of this Law and will only proceed until before the opening order is issued. at oral
trial.

The Judge, at the request of the parties, may suspend the process for up to fifteen days so
that the parties can negotiate, mediate or conciliate. If the negotiation, mediation or
conciliation is interrupted, any of the parties may request the continuation of the process.

Article 46.- Approval of agreements.- All reparation agreements must be approved by the
Guarantee Judge.

The Guarantee Judge will not approve reparation agreements when he has well-founded
reasons to believe that any of the parties involved were not in equal conditions to negotiate
or had acted under duress or threat.