Unrest in Chile: Fostering dialogue through Mediation and ADRs

On November 14, 2018, Camilo Catrillanca, a 24-year-old indigenous man, was killed by the police in unclear circumstances in southern Chile, causing widespread public outrage. The incident exacerbated what is known as the “Mapuche Conflict,” a dispute that has confronted the Mapuche people with and the Republic of Chile for more than a century.[1] Almost a year later, on October 18, 2019, a rise in the public transport fare triggered what is now known as the “Social Outbreak”, the most severe social and political crisis Chile has experienced since the coup d’état in 1973.[2]

Unfortunately, these are not isolated events. Not that long ago, Chile reached one of the highest rates of socio-environmental conflicts per capita in the world[3] and warnings were made about the weakening use of peaceful dispute resolution mechanisms.[4]

While it is true that no culture is exempted from conflict and polarization is a sign of our times, the foregoing levels of unrest are comparatively high and certainly worrisome. Addressing conflict and, particularly, reassessing how disputes are resolved is unavoidable if Chile aims to build a more cohesive society and ultimately become a developed country.[5]

From an institutional perspective, it is plausible that the prevailing judicial paradigm on conflict resolution and the corresponding systems under which disputes are decided may provide some explanation as to Chile’s current situation.

In Chile, disputes of legal relevance have historically and predominately been resolved under adversarial-adjudicative paradigms of procedural justice.[6] Not surprisingly, litigation continues to be the preferred mechanism to resolve such disputes.[7] Unfortunately, there is abundant literature arguing that said paradigms are often insufficient or inadequate to handle a variety of disputes.[8] In a country facing social unrest, increasing polarization, and lack of trust,[9] inducing parties towards confrontation as the default institutional response to conflict (and the systems by which justice is delivered) does not seem sensible.

Instead of primarily relying on systems where advocates aim to persuade an impartial third party that imposes a decision (i.e. litigation), the procedural institutional framework should positively encourage parties to reach joint solutions through negotiation, facilitated dialogue, and, more generally, some forms of alternative dispute resolution mechanisms (“ADR”).[10] The latter idea is grounded on the well-established principle by which parties in conflict, and not third parties, are generally those who know their interests best and thus are better situated to meet their needs.[11] Lower costs, faster procedures, and outcomes that preserve or even improve relationships, are well-known features of the aforementioned alternative systems.[12] This does not mean that negotiation or ADRs should always be the answer or, less so, that judicial litigation should be disregarded.[13] It means resorting to adversarial litigation only if and as long as alternative mechanisms are deemed inadequate for effectively processing the dispute at hand. In other words, changing the default institutional answer to disputes from confrontation to collaboration.[14]

In this new collaborative paradigm of procedural justice, mediation should arguably become a fundamental and primary method of dispute resolution.[15]

Unfortunately, but not surprisingly, Chile’s current landscape on mediation is very unsatisfactory. Excluding from labor, family, and public health matters, mediation prevalence and use are marginal.[16] Worse yet, despite some progress[17] and notable private efforts[18], it appears that there is still insufficient awareness within the Chilean legal community about the advantages of mediation[19].

Yet, the comparative experiences and emerging technologies signal that Chile’s future on the field can be very different.

For instance, in the United States, there is a vast institutional tradition on mediation and ADRs.[20] The European Union has promoted mediation for decades.[21] In Australia, mediation is intensively used across different areas of law and industry sectors.[22] Even in Latin America, mediation has been widely implemented –although its actual use and importance differ substantially from one jurisdiction to another.

Also, the use of new technologies like online dispute resolution, offers interesting possibilities for mediation which may facilitate its institutional adoption and widespread use.[23] As opposed to the formalistic and slow-paced procedures of traditional dispute resolution, technologies may further boost ADRs by making them more accessible, faster, and cheaper.[24]

In today’s troublesome Chile, the broad international experience and the emerging technologies provide a historic opportunity to institutionally embrace a more balanced and collaborative paradigm on dispute resolution. In said transformation, mediation is meant to have a crucial role. Chile’s long overdue Civil Procedure Reform, which aims to expand mediation in civil and commercial proceedings, appears to be a substantial step in the right direction.[25] However, we have yet to see its scope and impact on the whole justice system and society more generally. Whatever is the case, any public policy on the matter will only be successful if the entire community understands and embraces, mediation and ADRs not as mere or lesser alternatives to traditional litigation, but rather and above all as adequate mechanisms to solve disputes, foster dialogue, and build a more cohesive society.

Probably like never before, transitioning to a collaborative dispute resolution paradigm is no longer a possibility but rather an urgent necessity.

Eduardo Morandé (J.D., LL.M.) is a guest author and licensed attorney and mediator in Chile. He has a Graduate Diploma in Negotiation from P. Universidad Católica de Chile (2017) and completed the Negotiation and Leadership Program at Harvard Law School (2019). Mr. Morandé is a member of the Roster of Mediators of the Arbitration and Mediation Center of the Santiago Chamber of Commerce. The author can be reached at: e.morande@columbia.edu.

This is a guest blog post and in no way represents the views of the Fordham International Law Journal.

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[1] See generally José Bengoa, Los Mapuches: historia, cultura y conflicto, 3 Cahiers des Amériques Latines 89-107 (2011), http://journals.openedition.org/cal/118.

[2] See generally Carlos Peña, Pensar el Malestar: La crisis de octubre y la cuestión constitucional (2020).

[3] See Chile es uno de los pasises con más conflictos ambientales en el mundo, El Mostrador (Apr. 22, 2017), https://www.elmostrador.cl/noticias/pais/2017/04/22/chile-es-uno-de-los-paises-con-mas-conflictos-ambientales-en-el-mundo/. For more details on the data behind these assertions see Eduardo Astorga et al., Evaluación de los Conflictos Socio-Ambientales, Consejo Nacional de Innovación para el Desarrollo (Mar. 2017), https://www.cnid.cl/wp-content/uploads/2017/04/Informe-final-CNID-Evaluación-de-Conflictos-Socioambientales-1.pdf.

[4] See Alfredo Joignant et al., Informe Annual Observatorio de Conflictos 2020, Centro de Estudios de Conflicto y Cohesión Social 10 (Oct. 2020), https://coes.cl/wp-content/uploads/Informe-Anual-Observatorio-de-Conflictos-2020-COES.pdf.

[5] See Oscar Arias, Culture Matters: The Real Obstacles to Latin American Development, 90 Foreign Affairs 2, 4–5 (2011).

[6] See Luis Bates, Reflexiones sobre la Justicia, 12 Sistemas Judiciales 131, 135-137 (2007), https://issuu.com/sistemasjudiciales/docs/sistemasjudiciales12.

[7] See Eduardo Jequier Lehuedé, Mandatory Mediation in the Field of Commercial and Civil Conflicts in Chile. An Approach of Lege Ferenda, 24 Ius et Praxis 553, 553-554 (2018), http://www.revistaiepraxis.cl/index.php/iepraxis/article/view/1190/596.

[8] See generally Frank E. A. Sander, Varieties of Dispute Processing, U.S. Department of Justice (1976), https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=59624; Eric D. Green et al., Settling Large Case Litigation: An Alternative Approach, 11 Loy. L.A. L. Rev. 493 (1978), https://digitalcommons.lmu.edu/llr/vol11/iss3/2; Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 5 (1996), https://scholarship.law.georgetown.edu/facpub/1745.

[9] See Resultados, Pontificia Universidad Católica de Chile (Sept. 2020), https://encuestabicentenario.uc.cl/resultados/.

[10] See generally Robert Mnookin, Alternative Dispute Resolution, Harv. L. School John M. Olin Center for Law, Economics and Business Discussion Paper Series Paper 232 (1998).

[11] See Roger Fisher et al., Getting to Yes: Negotiating Agreement without Giving In 23-30 (Random House Business Books, 2nd ed. 1990).

[12] See John R. Allison, Five Ways to Keep Disputes Out of Court, Harv. Bus. Rev. (Jan.-Feb. 1991), https://hbr.org/1990/01/five-ways-to-keep-disputes-out-of-court.; Todd B. Carver & Albert A. Vondra, Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does, Harv. Bus. Rev. (May-June 1994), https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does.

[13] See Pam Marshall, Would ADR Have Saved Romeo and Juliet?, 36 Osgoode Hall L.J. 771, 798-801 (1998), https://digitalcommons.osgoode.yorku.ca/ohlj/vol36/iss4/5.

[14] See Carrie Menkel-Meadow, When Litigation Is Not the Only Way: Consensus Building and Mediation as Public Interest Lawyering, 10 Wash. U. J.L. & Pol'y 37, 38-39 (2002), https://scholarship.law.georgetown.edu/facpub/171.

[15] See id.

[16] See Eduardo Jequier Lehuedé, The mediation like an alternative for the solution of enterprise conflicts in Chile: Reasons and mechanisms for his regulation, 29 Rev. de Derecho (Valdivia) 91, 92-93 (2016).

[17] See Karin Helmlinger & Javier Cruz, Evolución de la Resolución Alternativa de Controversias Civiles y Comerciales en Chile, in Arbitraje y Mediación en las Americas 115, 115-116 (2005), http://www.camsantiago.cl/articulos_online/61_1_115-126.pdf.

[18] The Arbitration and Mediation Center of the Santiago Chamber of Commerce (“CAM Santiago”) provides dispute resolution services and promotes the use of alternative dispute resolution in Chile. CAM Santiago has provided mediation services for over two decades and recently launched an online dispute resolution project. For further information, see Camara de Comercio de Santiago, http://www.camsantiago.cl/english/index.html.

[19] See Jequier Lehuedé, supra note 7, at 565.

[20] For an historic timeline of ADRs, see Jerome Barrett & Joseph Barrett, A History of Alternative Dispute Resolution: The Story of a Political, Cultural, and Social Movement (2004), https://www.adr.gov/events/2009/may7-2009-materials-history.pdf. In addition, it is worth noting that in the mid-nineties, the ADR Act required U.S. Federal District Courts to establish ADR programs and in 2001 the Uniform Mediation Act was finalized to become a model statute of general applicability to mediations in the U.S. Today, most U.S. Federal and State Courts use mediation (or other forms of ADRs) and there is evidence that its use has brought good results and progress. See generally Thomas Stipanowich & Ryan Lamare, Living with 'ADR': Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 Corporations, 19 Harv. Neg. L. Rev. 1 (2014), https://www.mediate.com/articles/LivingWithADR.cfm; Thomas Stipanowich, ADR and the 'Vanishing Trial': The Growth and Impact of 'Alternative Dispute Resolution, 1 J. of Emp. Leg. Stud. 843-912 (2004), https://ssrn.com/abstract=1380922.

[21] See Barrett & Barrett, supra note 20.

[22] See generally Laurence Boulle, Minding the gaps: reflecting on the story of Australian mediation, 11 Bond L. Rev. 216-30 (1999), https://search.informit.com.au/documentSummary;dn=200101906;res=IELAPA.

[23] See generally Gabrielle Kaufmann-Kohler & Thomas Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (2004).

[24] See Ramón Alzate Sáez de Heredia, Mediación En Linea, 1 Revista de Mediación 6, 13-14 (2008), https://revistademediacion.com/wp-content/uploads/2013/06/Revista-Mediacion-01-02.pdf.

[25] Chile’s Civil Justice Reform bill was presented to Congress on March 12, 2012 by Presidential Message No. 004-360. For details on the legislative history of the Bill, see Establece el nuevo Codigo Procesal Civil., Camara de Diputadas y Diputados, https://www.camara.cl/legislacion/ProyectosDeLey/tramitacion.aspx?prmID=8596.