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On June 30th, 2022, the Colombian Congress issued the Law 2220 of 2022. The main object of this Law is to create a Mediation Statute. This Law entered in force since 30th December 2022 according to its article 145.
The Mediation Statute has several effects since its enforcement. These include the derogatory of several legal provisions related to mediation issues and, also derogating as a whole Law 640 of 2001. This was the previous mediation law known because of its regulations regarding the most important aspects of mediation as an alternate mechanism of conflict resolution.
The Mediation Statute is composed of 146 articles divided between 11 chapters and titles. It regulates the object, scope of application, principles, proceeding, the authorized legal practitioners, the mediation before notaries, the mediation before policemen, and the mediation before the labor and administrative jurisdiction, among other things.
This Mediation Statue, furthermore, brought within several legal developments as the following:
On the first place, the Statute compiles all legal provisions regarding the mediation mechanism in one document. Meaning that, since the enforcement of this Law, there are no scattered legal provisions. The new Statute creates a real legal document provided with principles for interpretation to apply it properly.
On the other hand, the Mediation Statute in its article 6 sets forth several alternatives on which the mediation proceeding can take place. The mediation parties can decide within the mediation solicitude which of the forms will be used by them either virtual or presential. This states in line by promoting the virtuality in the mediation practice. Notably, the Statute protects principles as technological neutrality and guarantees data protection according to Law 1581 of 2012.
Among others, the Mediation Statute introduces an expansion regarding the mediation matters to all of those that are not prohibited by law. One of the general principles of this Statute consist in that every issue that is tradable can be subject of mediation. Also, will be subject to mediation every right under the owner´s disposition.
However, regarding the administrative jurisdiction, the Mediation Statute states that, only the issues stringent listed are subject of mediation as long as the general interest or public patrimony are not affected.
Regarding the labor jurisdiction, the Statute sets forth that any mediation will proceed as the certain and non – questionable rights are not affected, confirming that this will not be a requirement before starting a judicial proceeding.
According to the abovementioned, the Statute expands the mediation as a requirement to fill any claim to every issue that is not prohibited by law.
The Mediation Statute also modifies some of the Colombian General Procedural Code and the Colombian Administrative Code regarding the initial hearing. One of the stages of this hearing was to provide a mediation. Within the new Statute, if the parties did not come into a mediation, this mediation stage can be stepped out. Nonetheless, the parties, the Public Ministry or even the judge can ask for a mediation hearing according to article 131 of the Statue.
Also, there are some other changes within this Mediation Statute that the previous legal provision (Law 640 de 2001) did not provide such as:
(i) Through article 133, the Statute creates the National Mediation System (“Sistema Nacional de Conciliación”). Within this system the Ministry of Justice and Law will implement a mediation public policy. The object of this policy is to coordinate actions and efforts to promote and enforce the development of the mediation mechanism. The System is composed by the Ministry of Justice and Law as the principal entity and the National Mediation Council as the operative entity (among others). This is a step forward to relieve the courts and to guarantee access to justice as a fundamental right.
(ii) Article 46 of the Statute sets forth that the public justice officials that have the faculty to mediate must comply with several studies to become a mediator. The Ministry of Justice and Law and the General Procuracy (“Procuraduría General de la Nación”) must provide this training to their mediators. Against the general believes, this is necessary because the abilities to become a good mediator are meant to be learned.
(iii) Article 25 of the Statute faculties notaries to create a mediator center as long as it complies with the legal provisions of the Statute.
As a conclusion, this new Mediation Statute introduces some changes that are considered as an advantage and step forward within the ADR methods. This, more than to compile every legal provision in one legal document, provides certain tools that allows the justice administration to be more efficient.
