Mediators and arbitrators interested in being a member of of
National Mediation's Panel call 1-800-286-0777
You are at: A translation of an article by Oscar Franco.
On December 15, 1999, the Venezuelan people, by means of referendum, approved a new Constitution, which even changed the name of the country, from Republic of Venezuela to Bolivarian Republic of Venezuela. The Constitution also establishes "The law will promote arbitration, conciliation, mediation and any other alternative means for the solution of conflicts", recognizing definitively these procedures in our country and separating conciliation and mediation, thus accepting that even though they have very similar elements, are different in reality.
The brand new Constitution also contemplates, "The law will regulate the justice of peace in the communities". It is necessary to point out that arbitration, conciliation and justice of peace, were already part of the legal codification of the country. Arbitration was regulated in the Code of Civil Procedure, and it was object of a special law promulgated in 1998, denominated Commercial Arbitration Act. Likewise, conciliation is established in different legal acts, such as, the Code of Civil Procedure, in which it is contemplated as one of the means of the parties to voluntarily terminate court litigation. It is also found in the Code of Commerce, in the Labor Law, in the Organic Law of Penal Procedure. Being used in the latter as means to achieve restitution agreements, a form of monetary compensation by the aggravating party to the aggravated one in criminal acts such as robbery, putting an end to the criminal procedure. Conciliation is also addressed in the Organic Law of Justice of Peace that establishes courts and judges of peace, in order to solve community conflicts.
Mediation, however, is not a very well known procedure in Venezuela. Nevertheless in the last months the interest has increased. professional mediators, coming from Colombia, Spain and the United States of America, as well as Venezuelan mediators trained in the U.S.A., have given lectures and training seminars. Next January 2001, a 4 days international judicial forum, dedicated exclusively to the study of alternative dispute resolution, will be held in the city of Barquisimeto. In Venezuela, the Center for Arbitration and Mediation of the Chamber of Commerce of Caracas, has received funds from the Interamerican Bank of Development, to promote alternative dispute resolution. The American Venezuelan Chamber (VenAmCham) recently inaugurated the Center for Arbitration and Conciliation. The goal of both centers is to do institutional arbitration, mediation and conciliation. Also, the Venezuelan Center of Mediation and Conciliation was established this year and its main objective is to offer its private and services to the public in general by independent mediators..
The Venezuelan Commercial Arbitration Act is extremely modern. Arbitration may be institutional or independent. Institutional arbitration is conducted through the arbitration centers. Independent arbitration is any such regulated by the parties without the participation of the arbitration centers. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Under the arbitration agreement the parties bind themselves to submit their disputes to the resolution of arbitrators and therefore waive their right to judicial relief. Arbitration agreements exclude remedy from ordinary jurisdiction. Arbitration may be conducted at law or in equity. The former must observe legal provisions in order to issue the awards. The latter shall proceed freely, according to the convenience and interests of the parties, mainly with regard to equity. Should the parties fail to indicate the type of arbitration, the Arbitrators will be deemed Arbitrators at law.
The parties are free to agree on the place of arbitration. Failing such agreement, the arbitral tribunal taking into account the circumstances of the case, including the convenience of the parties, shall determine the place of arbitration. The parties are free to agree on the language or languages to be used in the arbitral proceedings. The parties shall determine the number of Arbitrators, to be uneven in every case. Failing such determination, the number of Arbitrators shall be three (3). The only appeal possible against the award is the action to have it declared void; there are several causes to do it. For instance when the party against whom it is invoked was not given proper notice of the appointment of an arbitrator, or of the arbitration proceedings that so require notification, or was otherwise unable to present his case.
An arbitral award, regardless of the country of its rendition, shall be recognized by the Venezuelan ordinary jurisdiction as binding and unappealable, and upon application in writing to the competent Court of First Instance, shall be mandatory, enforced by the latter without need of an exequatur, pursuant to the rules established by the Code of Civil Procedure regarding the mandatory enforcement of judgements. Institutional arbitration has not been used much. independent arbitration is more popular. Private arbitrators decide a good number of contracts that contemplate arbitration for dispute resolution. All the contracts subscribed by the oil industry, vital for Venezuela since it represents the main source of the country's revenues, contain arbitration clauses. However, it is considered that mediation and conciliation are more flexible, informal, brief and economic than arbitration,. and expected to be used more frequently by lawyers and general public, once they familiarize themselves with these procedures. A special law is needed to regulate them; just as it does in practically all the Latin American countries. It is considered that a law is necessary to guarantee compliance of the agreement. It has already been mentioned that conciliation is included in the Code of Civil Procedure. A judge, at any stage of the trial, before rendering the decision, can order the parties to a conciliation act; the judge takes part as mediator/conciliator. However, alternative dispute resolution has been used very little, perhaps because the judges are educated to pass their decision and the lawyers are educated to litigate. Therefore, it is difficult for them to take advantage of the opportunity to reach a satisfactory agreement.
In the XXXVI Conference of the Inter-American Bar Association, held in Panama last June, it was resolved to urge Law Schools to include alternative dispute resolution in their curricula. In order to train the new generations of lawyers and judges, making them understand the benefits of these processes so they can use them as a valid tool to solve conflicts. It is necessary to emphasize that these means are alternative, and not meant to substitute ordinary justice, inevitably there will be disputes that will have to be litigated and decided by a third party, be it a judge or an arbitrator.
It is important to highlight that in the new Venezuelan Constitution, it is said that resolutions that are adopted within the country's integration treaties, are considered part of the Venezuelan effective legal system and with direct and preferable application to the internal legislation. Most of the international treaties use mediation and arbitration as alternative means of conflict resolution. Therefore making even more important, teaching of the appropriate use of these means, so that the representatives of the countries can use them positively to achieve satisfactory agreements.
Author. Dr. Oscar J. Franco O. Is a Venezuelan Lawyer, Mediator and Arbitrator certified by the Supreme Court of Florida, United States of America. President of the Venezuelan Center of Conciliation and Mediation. Mediator of the Center of Arbitration and Mediation of the Chamber of Commerce of Caracas. Member of Spidr, its International Sector and the Latin American ADR Subcommittee. Florida Academy of Professional Mediators Mediators, Broward Association of County Mediators and Mediators on Line.
For more essays, in Spanish, visit:
Camara Boletin de Derecho -- A Mediation Law Journal