In Mexico, mediation is formally recognized under the General Law on Alternative Dispute Resolution Mechanisms (Ley General de Mecanismos Alternativos de Solución de Controversias; “General Law”), published in January 2024. This law establishes a framework for various alternative dispute resolution (ADR; or MASC in Spanish) methods. It outlines mechanisms like negotiation, conciliation, arbitration, and mediation. Mediation is specifically identified as a voluntary procedure where parties come together to settle disputes, whether entirely or partially. This process is facilitated by an impartial third party, known as the mediator or facilitator. The essence of mediation lies in its focus on peaceful resolution and the prevention of future conflicts.

The General Law defines the roles of facilitators, collaborative lawyers, and the institutions responsible for overseeing these processes, such as the Consejo Nacional de Mecanismos Alternativos de Solución de Controversias (National Council of Alternative Dispute Resolution Mechanisms). The law aims to promote access to justice, efficiency, and fairness in resolving conflicts outside of traditional court proceedings.

A significant portion of the law details the requirements, responsibilities, and sanctions for facilitators and those involved in ADR processes. It outlines procedures for certification, training, and supervision, as well as provisions regarding confidentiality, impartiality, and the handling of conflicts involving children or vulnerable groups. The law also specifies the functions of various entities and institutions, including the establishment and operation of both public and private centers for ADR and the creation of a national registry of certified facilitators. Online dispute resolution is also addressed, with a focus on transparency and procedural fairness. Finally, the law addresses the enforcement of agreements (convenios in Spanish), handling sanctions, and transitional provisions for implementing the new legislation.

Mediators in Mexico serve as neutral facilitators who help parties navigate the mediation process. They are required to be certified, either for public or private practice. Their responsibilities include fostering effective communication among the disputing parties, helping them to articulate their interests, and guiding them toward a mutual agreement. The recently enacted law obliges mediators to assess whether a conflict can be effectively resolved through mediation, ensure compliance with relevant legal frameworks, validate agreements, and inform parties about the implications of the mediation process. This guarantees that the agreements reached are not only effective but also duly recognized under the law.

In the context of facilitating and mediating agreements between parties, the facilitator or mediator may employ public faith to enhance the credibility and authenticity of the process. Public faith ensures that the documents and agreements are recognized as legitimate and trustworthy, allowing the facilitator or mediator to certify copies of the original documents and attest to their accuracy. This legal recognition not only strengthens the agreement but also provides assurance to all involved parties that the facilitator or mediator is acting within the bounds of the law, thereby fostering a more effective and reliable mediation process. Through the application of public faith, the facilitator or mediator can help to promote transparency and confidence among the parties involved, ultimately contributing to a smoother resolution of disputes.

Mediation, arbitration, and litigation are distinct dispute resolution mechanisms in Mexico. While mediation is collaborative and non-binding, allowing parties to find solutions with the mediator’s help, arbitration acts as a formal process where an arbitrator delivers a binding decision post hearing. Arbitration resembles litigation in its formality, but it is generally more expedient and less expensive. Litigation involves court proceedings, and resolutions may be time-consuming and costly. Given current judicial reforms in the country, mediation is increasingly viewed as an accessible and non-adversarial method compared to the more rigid structures of arbitration and litigation, allowing for reconciliation and relationship preservation.

In Mexico, mediation is governed by specific rules and regulations at both the federal and local levels. Key legal frameworks include: the Federal Civil Code (Código Civil Federal) — this code outlines the general principles of mediation and ADR in civil matters; Judicial and Administrative Regulations — various states have their own mediation laws addressing specific procedures, training of mediators, and types of mediation (e.g., family, civil, commercial); Publicity and Confidentiality — the law emphasizes the confidentiality of the mediation process, ensuring that discussions and agreements reached are not disclosed outside of the mediation context, except as agreed by the parties.

The General Law stipulates specific regulations for mediation in Mexico. It sets forth requirements for mediators, emphasizing ethical conduct, confidentiality, and impartiality. The structured mediation process typically encompasses several phases: an initial meeting, joint sessions, potential caucus sessions, and formalization of the agreement through a convenio. This framework ensures that the mediation process is voluntary, facilitating a swift and amicable resolution of disputes while transitioning agreements into legally binding documents.

These regulations aim to promote mediation as an effective, efficient, and collaborative means of resolving disputes, reducing the burden on the judicial system. For specific local regulations, it is advisable to consult regional legal resources or experts in the jurisdiction in question.

Mexico is actively promoting mediation as a viable alternative to conventional court proceedings. The enactment of the General Law showcases the intent to relieve burdens on the judicial system and promote quicker, cost-effective resolutions. The law endorses a culture of dialogue, emphasizing peaceful dispute resolution. The initiative is driven by the need to alleviate litigation loads and reduce associated costs while fostering a systemic change in conflict resolution perspectives.

The country faces a process of effective implementation of the General Law, which ultimately aims to standardize mediation processes in Mexico. Among the challenges are the lack of a culture of peaceful conflict resolution, the misconception that mediation is less effective than litigation, and the scarcity of resources in some mediation centers. Additionally, there is still skepticism among some lawyers and parties involved regarding the ADR approach. Despite these challenges, public policies related to justice increasingly promote mediation.

However, the implementation of the law is uneven. There are some states that have been developing and working on ADR for years and have well-recognized private centers, such as Alinea Group, who have over 20 years of experience creating collaborative synergies to enhance and optimize results. There are also states that have launched public ADR centers that provide services to the population. Notable cases include Jalisco and Nuevo León, where both public centers offer services of great effectiveness and quality.

The current legal framework at the federal level does not explicitly state that courts can compel parties to participate in mediation. However, it does require judges to inform the parties about the possibility of using mediation as an alternative before issuing a ruling. The judicial authority must inform the parties of their right and the possibility at any time, up until before the issuance of the judgment or resolution that concludes the proceedings, to go to the Public Center for Alternative Dispute Resolution Mechanisms to resolve their conflict by entering into an agreement.

The courts can encourage the promotion of more collaborative and less adversarial conflict resolution methods, but they cannot penalize a party for not committing to a mediation process. Currently, there are positions both in favor of and against establishing mediation as a procedural requirement, meaning exhausting mediation before being able to go to court. This approach would reinforce the importance of mediation within the Mexican legal framework, allowing these alternatives to become a real option for dispute resolution.

The legislation states that ADR mechanisms, including mediation, are subject to the principle of voluntariness. That is, the participation of the parties in ADR mechanisms is done by their own free and voluntary decision.

Mediation can take place before or during judicial proceedings. Before a trial, it can be initiated by the parties involved or suggested by a judge as an option for reaching an agreement. During the proceedings, the judge may also recommend mediation to address and resolve certain aspects of the case, thereby seeking to facilitate mutual understanding and contribute to a quicker and more efficient resolution of the dispute. The specific case will depend on the subject matter, as some issues that involve the authorities acting ex officio do not allow for mediation.

Mediation is particularly effective in family, commercial, and labor disputes where the parties seek a quick and collaborative solution. In Mexico, there are limitations on bringing cases through a mediation process in criminal matters. The criminal mediation law states that it will be applicable in cases provided for by the relevant procedural criminal legislation, from the start of the criminal procedure until before the opening order for trial is issued or before the conclusions are formulated.

The General Law does not explicitly exclude any type of commercial dispute, so it can be subject to mediation if the parties wish it. However, if any type of crime was involved, it would be necessary to refer to criminal legislation and determine whether the case could be resolved through mediation. It is necessary to define the specific case; that is, if there is any type of impact on the public treasury or any crime that cannot be resolved through mediation, a judicial process has to be followed.

Mediation offers a more collaborative and less adversarial approach to resolving commercial conflicts, allowing parties to maintain control over the process and the outcome. This can result in more creative and satisfactory solutions for both parties compared to traditional litigation methods. The confidentiality of the mediation process can also be a significant draw, as it allows companies to resolve their differences without the public exposure that comes with a trial. Therefore, it is advisable to consider mediation as a viable option before opting for more formal legal proceedings.

Increasingly, contracts and agreements include mediation clauses. However, the initiation of disputes and the enforcement of mediation clauses often occurs in a judicial setting. In this sense, there is an opportunity for legislation to mandate mediation clauses as standard procedure.

The inclusion of mediation clauses in contracts and agreements can not only facilitate the resolution of disputes more quickly and efficiently but also reduce the burden on judicial systems, promoting a more agile business environment. These clauses can establish clear procedures for mediation, including timelines and methods for selecting a mediator, providing a reference framework that both parties can follow in case of disagreement. Additionally, by encouraging ADR, business relationships between the parties can be preserved, which would be more challenging in an adversarial litigation context. Therefore, mandating the use of mediation clauses could be a significant step towards modernizing contractual practices and promoting a more collaborative dispute resolution culture.

A significant change included in the General Law issued in January 2024 was that previously, agreements reached in mediation should be recognized by a judge, granting them binding and enforceable status. Now, mediations become legally binding when the parties sign an agreement, or convenio, prepared by the facilitator. Public and private facilitators — including mediators — now have public faith to formalize agreements, certify copies of documents, and issue certified copies of agreements and other documentation.

Generally, it is essential to complete training and certification programs in mediation and to be registered in the corresponding registry. The General Law establishes the general requirements and the framework for conducting training and certification processes by the judicial powers of both the states and the Federal Judicial Power. The underlying reason for issuing this general legislation is to ensure that mediators have a minimum standard of knowledge and skill to carry out conflict resolution.

The biggest challenge is the implementation of standards, as capabilities among the states vary significantly.

To be able to act as a mediator or facilitator of ADR, 120 hours of training is required, which assesses the mediator’s:

• knowledge of current legislation and the principles guiding ADR mechanisms;
• ability to identify and assess the causes and effects of conflicts to propose appropriate solutions;
• capacity to select and apply ADR tools that promote peaceful conflict resolution in changing contexts;
• skill in applying ADR models in real situations for conflict resolution;
• ability to conduct ADR processes using technology;
• knowledge of communication techniques and principles of neuroscience to facilitate conflict resolution;
• skill in managing complex situations faced by a facilitator;
• ability to draft agreements that meet validity and enforceability requirements;
• knowledge of ethical responsibilities and an inclusive approach in ADR; and
• ability to apply practical and critical analysis to intervention situations in conflicts.

The new legislation enacted in the General Law establishes the National Council of Alternative Dispute Resolution Mechanisms as the governing body for public policy. It is made up of the heads of the Public Centers for Alternative Mechanisms at federal and state level. However, specific regulation will largely depend on the provisions of each state and the respective councils of the judiciary and higher courts of justice. Currently, the National Council is working to develop general guidelines that establish a minimum standard to regulate the activities of mediators throughout the country.

It is expected that in February 2025, local legislation will be fully harmonized with the general rules that must be followed at the national level. In case the states do not update their legislation, the General Law is applicable. ADR will gain importance in Mexico since judicial reform initiated by the legislative and executive branches has weakened the judicial career and subjected the positions of judges and magistrates to popular vote, which creates uncertainty about the quality of rulings and judicial independence. Mediation will certainly see increasing demand for resolving conflicts and accessing justice.

In Mexico, mediators are subject to the codes of ethics corresponding to each specific institution or profession, as there is currently no uniform ethical code governing mediation activities throughout the country. This situation has created a gap in the regulation and standardization of mediators’ conduct, which poses a challenge for the profession. It is an outstanding issue that requires attention and effort from the National Council, which must work on creating a regulatory framework that includes clear and coherent ethical guidelines for all mediators, thereby promoting trust and effectiveness in mediation processes.

In the Mexican jurisdiction, there is no unique model for conducting mediation processes; the principle of flexibility and different methodologies prevail to adapt to various contexts. However, it is common for mediators to include a preparatory stage, where the mediator explains the process and establishes the basic rules, followed by the presentation of the parties, in which each party presents their version of the conflict. Issues and interests are identified, resolution proposals are generated, allowing the parties to put forward creative solutions, and the process culminates with the agreement, where the consensus reached is formalized through a settlement or convenio.

The General Law recognizes different models and methodologies for conflict resolution, meaning it does not limit itself to a single model or specific steps. This allows each facilitator to first decide which mechanism will be used to resolve the conflict and propose it to the parties; and secondly, it allows the principle of flexibility and voluntariness of the parties to prevail, adapting the solution to the conflict according to the needs of those involved.

The practice of mediation is on the rise due to the saturation and cost of judicial instances. For the past 26 years, ADR mechanisms have been available in Mexico, although the results obtained so far are quite limited. Currently, only 5% of all cases are resolved, both at the local and federal levels. In five years, the introduction of the requirement of admissibility in labor matters has achieved a resolution rate of 75%. This suggests that the lack of the requirement of admissibility represents an obstacle to carrying out mediation.

There is a lack of awareness and understanding of mediation and its benefits. Many people, including some legal professionals, hold misconceptions about this process. One of the most common ideas is that mediation will completely resolve the judicial backlog and eliminate litigation, creating the perception that it could put an end to the work of litigating attorneys and the functions of the judicial system.

Additionally, in certain sectors, mediation and ADR mechanisms are viewed as incompatible or even adversarial to the judicial system, which hinders the adoption of these practices. This misconception can obstruct the promotion and development of mediation as an effective tool for conflict resolution.

Advantages of mediation:

• Empowerment of parties. Mediation allows the parties involved in a conflict to take control of the resolution process. They can express their needs and develop their own solutions, leading to more satisfactory outcomes.
• Self-determined settlement. Unlike court rulings, where decisions are imposed, mediation facilitates a self-composed agreement. This often leads to solutions that are more tailored to the unique circumstances of the parties involved.
• Faster resolution. Mediation processes are typically quicker than court proceedings. This speed can significantly reduce the time taken to resolve disputes.
• Cost effective. Mediation can be less expensive than litigation. The savings in legal fees, court costs, and time spent on proceedings can be substantial for all parties.
• Alleviates court burden. By resolving disputes through mediation, the judicial system is relieved of some of its case load. This contributes to a more efficient court system, allowing judges to focus on more complex cases.
• Public faith for facilitators. With the new legislation provided in the General Law, facilitators are granted public faith for specific situations. This adds credibility to the mediation process and the agreements reached.
• Easier achievement of res judicata. The concept of res judicata, which refers to the finality of a judgment, can be achieved more easily and economically through mediation, reinforcing the binding nature of agreements made.

Disadvantages of mediation:

• Lack of standardization for facilitators. One of the main downsides is that there is no uniform standard for mediators. This inconsistency can lead to varying levels of quality and professionalism in mediation services.
• Opportunities for professionalization. The lack of standards indicates a clear area for improvement in the professionalization of mediation as a practice. Establishing qualifications and training for mediators can enhance effectiveness and public trust.
• Broader legal practice issues. The absence of standards in mediation reflects a more extensive issue within the legal profession in Mexico, highlighting the need for overall systemic improvements.
• Perception of judicial intervention. There is a common belief that, to enforce an agreement reached in mediation, parties must still resort to the courts. This perception may discourage individuals from fully engaging in mediation as a viable resolution option, fearing it may not provide the necessary legal backing they desire.

Weighing these advantages and disadvantages, interested parties as well as judges and lawyers can better assess the role of mediation in resolving disputes and determine necessary improvements to enhance its efficacy and reputation.

Some states, like Nuevo León and Jalisco, have implemented technological tools to conduct remote online mediations. However, there are still limitations as parties must go to the offices of the state Public Center to use these technological means, which undermines the practicality offered by technological platforms. Currently, the Center for Alternative Dispute Resolution Mechanisms of the Federal Judiciary is working on the implementation of platforms and systems that enable progress in the provision of online services.

Mexico is not foreign to technological development and the use of platforms and artificial intelligence to facilitate parts of the mediation process. It is expected that in the coming years, this will be commonly applied to ADR processes. The General Law provides for two national platforms: one for the registration of facilitators and the National System of Information on Agreements. These tools represent the first step toward formally introducing technological tools into ADR in Mexico.

In Mexico, mediation has gained importance in recent years as an effective alternative for conflict resolution. The number of cases resolved through mediation has increased in many regions, especially in areas such as family law, commercial disputes, and community conflicts. As a result of the General Law, there is now also the possibility of turning to the Federal Judiciary through the Center for Alternative Dispute Resolution Mechanisms as a new auxiliary body of federal justice.

The General Law does not explicitly mention artificial intelligence applied to mediation. However, it is permissive in this regard. It does provide for the mandatory use of platforms for both the registration of facilitators and electronic systems for the control of agreements. The national platforms and systems are managed by the Federal Judiciary through the Center for Alternative Dispute Resolution Mechanisms with the support of the Federal Judicial Council. Furthermore, it is considered that ADR — including mediation — can be processed using information and communication technologies or online systems.