In these last months, the pandemic of the “Coronavirus – Covid 19”, has evidenced the fragility of the essential sectors of our country, among others, health, education, economy, justice; thus the justice sector has been completely paralyzed until now, despite having authorized the exceptional processing of critical and urgent matters¹, which however did not solve the fundamental problem that seeks “the efficient service of justice administration”.
This situation warns of the urgent need for the justice system of our country to adapt to the changes, technological advances and information technology that are taking place worldwide and to leave aside the traditional system with which have been fulfilling their functions so far, since it has contributed little to the efficiency of the service of justice.
Thus, one of the problems that has arisen in the Justice system as a result of the pandemic, is the one referred to the Conciliatory Justice embodied in the Extrajudicial Conciliation, which according to its Law and Regulations requires the participation of the parties in conflict², as opposed to the Arbitral Justice³. This fact has generated the Extrajudicial Conciliation to be completely paralyzed for initiated procedures and, in addition, the impossibility of initiating new procedures given that there is an express order of mandatory social distancing; therefore, it is necessary to implement the processing of the extrajudicial conciliation procedure with virtual hearings.
Taking into consideration the problems described above, it is convenient to point out that a group of representatives of various Conciliation Centers accredited in the country, have requested in April of this year to the Ministry of Justice “Directorate of Extrajudicial Conciliation and Alternative Settlement Mechanisms”, to issue new guidelines for the application of the Virtual Extrajudicial Conciliation, a request that is awaiting the corresponding Ministerial Resolution by the MINJUS.
In this regard, some aspects to be taken into account for the guidelines apply to Virtual Conciliation will be detailed.
1.- Importance of Extrajudicial Conciliation?
Extrajudicial conciliation is an alternative means of conflict resolution with legal relevance, by means of which a neutral and impartial third party “Conciliator” assists the parties to find a satisfactory solution, by means of a conciliation act that is of mandatory compliance. Its main advantage is for being a fast and inexpensive procedure, whose agreement is binding on the parties.
An important aspect to take into account is that, in this period of sanitary emergency and quarantine, a series of conflicts have arisen for various reasons (e.g. breach of lease contracts, alimony, evictions, tenancy, payment of penalties, visiting arrangements and others), which can be solved by the parties without the need to require judicial intervention; being necessary for this purpose the application of the Virtual Extrajudicial Conciliation, proposed to be implemented.
2.- Is the use of technology compatible with the Virtual Extrajudicial Conciliation?
The Conciliation Law and its Regulations are not in opposition with the use of new technologies and computerized means of communication to achieve its purpose “conflict resolution”; in this sense, remote work is being implemented and applied in different public and private services of the country, with the purpose of continuing the service of justice, therefore the Extrajudicial Conciliation is not exempt from such application and the use of technology for the procedure of Virtual Extrajudicial Conciliation is fully compatible.
3.- Are there precedents of virtual conciliation in Peru?
In our country in 2019, the National Institute for the Defense of Competition and Protection of Intellectual Property – INDECOPI, made available to citizens the virtual platform “ConciliaFácil”; whose purpose is that consumers and suppliers can reach an agreement through digital media, regarding conflicts or claims that may be presented in the consumer relationship. This is a means in which the claim is made virtually to Indecopi (virtual form) and appointments for conciliation are established through the platform and will be made under a mechanism similar to a video call, such as Skype or zoom platform, which guarantees the validity of the presence of the parties. The agreements are of obligatory compliance, and non-compliance has the same sanctions as if it were a face-to-face conciliation.
4.- Does Virtual Extrajudicial Conciliation exist in other countries?
In other countries, virtual extrajudicial conciliation is already being applied in order to avoid delaying people’s access to justice. For example, in Argentina, Resolution 2020-121-APN-MJ issued by the Ministry of Justice and Human Rights on April 23th, 2020, has authorized the holding of virtual hearings by electronic means while the health emergency lasts.
In the case of Colombia, this country has been applying Virtual Conciliation for years, in effect by Decree 1829 issued by the Ministry of Justice and Law dated 27-08-2013, regulating among others the use of technological means of virtual hearings for conciliation and arbitration.
5.- What guidelines could the proposed Virtual Extrajudicial Conciliation have?
The access and processing of the Virtual Conciliation Procedure would be as follows:
5.1.- The conciliation center shall advertise and promote its services, functions, benefits of conciliation; through a mechanism of dissemination in social networks, pages of public interest, etc.; with indication of the conciliable matters, requirements such as: personal data, matters to be conciliated, conciliatory proposal, personal data of the person with whom it wishes to conciliate, attachments if applicable, professional fees and form of payment (electronic), and other legal requirements of unavoidable compliance.
5.2.- The applicant(s) shall send an email or whatsapp to the conciliator center with the advertised requirements.
5.3.- The conciliation center, using the same electronic means, will notify the person against whom the conciliation is requested with the original proposal, indicating date and time for the conciliation hearing, specifying that it will be initiated virtually, indicating the electronic means to be used according to the particularities and possibilities of the parties involved. It will indicate the scope, purpose and benefits of the conciliation.
5.4.- The hearing may be carried out through the use of video or conference of the Google Hangouts meet program, Zoom platform or by Whatsapp through video calls; it must be recorded in audio and/or video; as it will serve as support for its validity, legality and conformity of the parties in substitution of the physical record.
5.5.- Concluded the virtual conciliatory hearing, with the total agreement, partial agreement or lack of agreement; shall send to the parties by the same means of communication used, if there is an email, the audio and/or video recorded, which in CD shall be attached to the minutes that shall be subscribed in its registry and/or book of conciliations, as a sign of its completion and conformity.
6.- OF THE CONCLUSIONS:
It is clear then that our justice system requires an integral reform, in the case of the Extrajudicial Conciliation it needs to be promptly adapted to the changes, technological advances and computerized means as explained, having to be implemented in a virtual manner; This will allow not only the continuity of the conciliatory processes in process paralyzed by the pandemic that afflicts the country, but also presents many more advantages such as dispensing with the presence and physical concurrence of the parties, being able to perform the same from any place where it is, even from outside the country; also generating savings of money, time and effort; freedom of access of any citizen, among others.
1. Read Administrative Resolution No. 115-2020- CE-PJ dated 03-16-2020.
2. Law 26872 and Supreme Decree No. 014-2008-JUS – as amended.
3. Arbitral justice: conflict through arbitration, which according to its regulations is not prevented from continuing with the proceedings, including virtual ones, bearing in mind the rules established by the arbitration centers and/or by the ad hoc arbitration tribunals, as the case may be.
