In practice, mediation in El Salvador is mostly used in
family and labour disputes. Even though business mediation is
contemplated under the Ley de Conciliación,
Mediación y Arbitraje (Law of Conciliation,
Mediation and Arbitration, or LMCA) it is seldom or never used
for solving business disputes. Nevertheless, the international
projection that El Salvador is going through, especially after
the ratification of the DR-CAFTA in 2005, has lead Salvadoran
businesses to notice the importance given to mediation by their
international peers. Consequently, interest in this subject
matter has increased.
Ratified in July 2002, the LMCA establishes the parameters
for the practice of mediation. The process starts with the
filing of a request for mediation before the Arbitration and
Mediation Centre of the Chamber of Industry and Commerce of El
Salvador. Additionally, the parties may arrange for mediation
without the intervention of the Centre, giving the same
recognition to the agreement reached therein, if any.
The LMCA requires all entities to be represented by its duly
accredited legal representatives or any other person with
sufficient decision power with the purpose of avoiding
unnecessary delays and thus ensuring the effectiveness of the
process. The agreement reached by the parties must be in
writing and is enforceable before the courts.
The matter of confidentiality is addressed with particular
concern in the LMCA. All declarations from the parties are
qualified as strictly confidential and records cannot be kept.
Furthermore, the notes taken by the mediator cannot be copied
or given to third parties and will not be admitted as evidence
In addition, there is a strong prohibition for mediators,
experts and any other person that may have been involved in the
mediation process, to participate in any court proceeding that
may take place after the mediation. This prohibition is not
applicable to the attorneys of the parties involved in the
process. Mediators may also excuse themselves or be challenged
by the parties from the process without motivating their
decision. In both cases, the Centre will appoint a new mediator
for the case.
While mediation is not a new practice in some jurisdictions
(ie American companies started using business mediation in the
early 1970s), its use had not been adopted by Latin American
countries until the late 1990s. Throughout the years, it has
been confirmed that the use of mediation in business disputes
brings speed and more satisfactory results than litigation, as
well as a significant reduction of costs and expenses.
The benefits of using business mediation as the preferred
dispute resolution mechanism for companies are many. However,
there is no real promotion of an Alternative Dispute Resolution
(ADR) culture among Salvadoran businessmen and therefore there
is no real trust in the process.
For now, the hope for the implementation of a solid
mediation practice relies on the continued expansion of the
country's international projection. Salvadoran companies will
be required over time by their international peers to mediate
before going through other types of adjudicative processes and
that is the best way to experience the benefits of business
mediation. Confidently, Salvadoran companies will try to
emulate such practices in the national realm.