* (This article has been jointly developed with Dr. Cesar Mendoza Valdivieso)
1. INTRODUCTION.
some time ago, has been talking and spreading the idea of \u200b\u200bprevention in the process of resolving legal disputes through preventive agreements involving the use of extrajudicial conciliation proceedings, in which is established by mutual agreement between the parties implementation of solutions to potential conflicts that may arise in the development of their legal relationship, being further that such agreements have been made under the autonomy of the will of the parties and in accordance with the legal system as a whole.
Indeed, the prevalent model of conflict resolution in our society has been to form part of a court scene, with its characteristic of being essentially adversarial, where the judge resolves the dispute in a judicial process under the Imperium and making Ius that function effectively for the implementation of effective judicial protection invoked by a party with your claim.
In that sense, has been an interesting topic for many (though no less controversial for a few), address the possibility of falling out of court matters on which there has been no conflict externalized in reality, which is commonly called real-conflict , more even if the existing regulatory framework expressly made to the court conciliation as an alternative mechanism for conflict resolution, assuming that this definition subsumes only so-called externalizing or actual conflict but, as is evident, the role of lead intrinsic resolution of prevention, since it must be remembered that the use of extrajudicial conciliation pursued a pedagogical role of citizenship education which strengthens ethical and moral values \u200b\u200bof society, which is finally giving credit to his word and thereby strengthening the so-called "good faith of the parties," a situation which will also the achievement of social coexistence in harmony.
So, for those outside the issue of reconciliation and use of alternative means of dispute resolution in general, the issue could be settled, from a limited, very simplistic, making a distinction between "Prevention" and "resolution" of conflict, saying that conflicts can be resolved only externalizing but not the settlement could be used as a mechanism for conflict prevention whenever there is no conflict, or at least, is not externalized, for accepting This possibility would distort the institution conciliatory, and, in that order of ideas is clear that neither could reconcile conflicts that are not accredited with documentation to support its previous existence, other anecdotal situation and we certainly would cause a conflict, helplessness which would meet set the parties to that stage. It is evident then, that although contributions are welcome and constructive criticism on the subject under study, it is also necessary to point out that the lack of comprehensive knowledge of the conflict as a social phenomenon characteristic of human relationships, can lead to making inappropriate statements on the subject. For
Thus, the conflict must be studied from a theoretical perspective in relation to its dynamic evolution and resolution, being that the legal approach is sometimes insufficient to explain this phenomenon, having recourse to a more multidisciplinary approach to reveal deep, in essence, what is conflict.
Based on the foregoing, it is then necessary to note that for purposes of defining the application of conciliation as a means of preventing and / or conflict resolution should be to determine more precisely when we are faced with a conflict and whether (or not) absolutely necessary that this is externalized frank and open in a situation of conflict of laws, to meet newly enabled the use of preventive arrangements via the settlement.
2. OWN ON THE DYNAMICS OF CONFLICT.
Before categorically confirm or deny the possibility of reconciling a conflict is not externalized in reality, we must first define what is meant by conflict and what is its dynamic action, this in order to reach conclusions and identify positions.
2.1. Conflict.
Generally speaking, when two or more persons have competing interests on the same property or right as we face the emergence of a conflict, which can be defined as a struggle between two parties, the clash of interests against certain situations or claims and in these parts do not yield, leading to a confrontation or conflict of rights or claims and usually presents as inter relational process and as such, is born, grows, develops and can sometimes be transformed, disappear and / or dissolve and other times remain relatively stationary. This situation is between two or more parties, meaning parties to individuals, small groups, communities or associations, but can also occur between two groups, between a person and a group, etc., Consisting predominantly antagonistic interactions of attractive interactions.
Conflicts are situations in which the interests of the parties or their needs are not coincidental but interdependent since they are perceived as satisfying the interests of one party will mean, inevitably, the non-satisfaction of the interests of Moreover, so that your satisfaction will depend on the behavior that the parties adopt each other. Thus any situation in which there are differences of interest attached to the relationship of interdependence is likely to cause conflict.
If we try to supplement the basic definition of what is meant by conflict, could claim to be a fact, situation or claim made by a party and which is otherwise perceived as contrary to the satisfaction of their interests, resulting in behavior on the defensive protection of those interests represented themselves in the positions adopted by the parties.
The element of perception is important in assessing any conflict since it is not always what the other is intended to disrupt or harm the interests of oneself, but it is the perception and the subsequent act of attribution of the act as harmful or potentially harmful to our interests that will generate one thinks there is conflict, understood as the same conflict of interests; or as Shakespeare said: "Nothing is good or bad, but thinking is what makes things good or bad," or in other words, the same situation can be conceived by some as a conflict, variable intensity, and for others the same situation will not conflict at all, depending on these highly subjective factors such as perception and attribution.
course also operate other elements to determine that a subject believes that he is immersed in a conflict than the feeling of involvement of self-interest, since we also have a hierarchy of needs and the scale itself values to the extent that they feel will condition affected their subsequent behavior.
2.2. Spectrum of Conflict. According to Roque
Caivano, when a situation is perceived and experienced as conflict, depending on the intensity of the perception of involvement, we can discuss the spectrum of conflict, it is composed of six stages that increase in intensity and each of them poorly managed, poorly resolved or unresolved directory, can be scaled in the following or other steps to climb until the last step, however, is not an inevitable linear sequence. The steps in the spectrum of conflict are:
a) Slight differences .- Disputes between people usually arise from small differences, limited collision of interests. If these differences have not been handled properly, so comprehensive, friendly and collaborative, this stage can be scaled to the next level.
b) Disputes .- The slight differences remain unresolved and these can remain latent in the memory as a reference for future disputes. Thus, compared to a further discussion will come out and produce an escalation in greater polarization of opinions, adapting positions in open communication and productive, and each party's focus on its position, probably will be a stalemate. Hence, intervention neutral third party could help avoid the risk of climbing to the next level.
c) Disputes .- The failure to resolve the disagreements usually produces a more active interaction of the parties and the discussions become more heated, the perceptions of one against the other more negative, more rugged communication and stubborn positions. In general the parties seek to win and the other loses.
d) Campaigns .- If the previous steps have not resolved the parties can begin to involve more participants in it. The dispute goes from private to public, and the parties seek to increase their power against the other seeking allies. In making public state, institutions and media can echo the conflict by pressing or influencing a party or act in certain ways. It should be noted that by including more participants, the communication process is complicated and the decision-making, as they all have a position, opinion or interest in a certain way.
e) Litigation .- In this stage, the parties continued their adversarial positions are required by law or the authority to refer the resolution of their dispute to a third party. However, when the third solution does not satisfy any of the parties can get these at the last stage.
f) fights or wars .- This last stage is characterized by the presence of physical or psychological violence and feelings inspired by damage or destroy the other.
2.3. Process of Conflict.
Any conflict can not be viewed as a static event, but must be conceived as a dynamic process, and therefore there are developmental phases that will pass, which will shape the possible future resolution. These phases are: a.
Antecedent conditions .- While the antecedent conditions can be considered as the situation prior to the emergence of real conflict and can be considered the preferred status that is aspired to return after the occurrence of conflict, consider which could also be understood as situations of internal conflict before the emergence of conflict externalized, amounting to a buildup of tension between various factions, and is manifested in the events and situations that occur between the parties as part of a process communication and relationship between these, as the equivalent of small differences add up. Here we argue that certain conflicts have a long history of previous situations that accumulate in the domestic jurisdiction of the parties involved (or at least one of them) and severely limit subsequent occurrence, sufficing only an act, situation or claim for to manifest with full force, the same as seen in isolation would not justify further conflicted state. B.
Harmonization of differences .- In addition, the existence of these differences generated voltage level of accumulation do not necessarily lead to the externalization of conflict, since the parties can reach what is called harmonization of differences, a process by which we are faced with the sudden drop in the level of accumulated tension and preventing conflict goes beyond the domestic jurisdiction of the parties and externalize in reality. This reduced level of stress is given by voluntary acts of one or both parties for trying to drive the relationship less conflicting paths without having to wait for it to externalize the conflict. We affirm that at this stage could be used peaceful means of conflict resolution designed precisely to avoid a negative outcome. For example, a married couple has a negative relationship differs between them and builds up tension, but whose level is reduced sharply with an act as trying to peacefully talk about the course that takes the relationship or just carrying a bouquet of flowers preparing the wife or husband's favorite food in order to reduce accumulated tension in the relationship. C.
Perceived conflict .- Here the parties, through the activity sense, perceive certain attitudes and behaviors of their counterparts as contrary to the satisfaction of self-interest, which will then be considered a direct attack, with the harmonization of differences has not succeeded in reducing the level of tension between the parties. As noted above, this perception may be real or may be distorted due to problems of perception would lead us to talk about conflicts exist, since the perception is distinguished by being a subjective behavior conditioned by pre-established patterns of behavior and therefore as part of the subject's internal thinking. D.
Conflict We sense .- internally of the person, who after seeing a certain situation, almost simultaneously by an act of perceived evaluative feeling ends and assuming the situation as an infringement to satisfy their own interests. Would be equivalent to the act of attribution, ie, I give negative intrinsic qualities perceived to act earlier and that will determine my subsequent performance. In other words, it begins to act out a response to the opposing attitudes that have been perceived as contrary to our position and are based on feelings such as anger, fear or rejection. E.
Once overt behavior .- has been perceived as an act contrary to their own interests, and felt that fact as a potential attack, the logical next step is to externalize by the subject in response to such behavior and that is perceived by the counterparty as a act to repel their acts that violate individual criterion or threaten their interests. Here we speak of the manifestation of the conflict.
f. Conflict resolution or suppression .- This stage will include all the ways in which the parties will attempt to end the conflict, such as self-help, self-composition or heterocomposición. Thus, there will be ways of removing the conflict in which a of the parties impose their will on the other through the use of violence, or be seeking a negotiated solution between them which can be made directly or through the involvement of intermediaries, or let a third party imposing a solution through an act of decision.
g. Consequences of termination .- Finally, the act of resolving the conflict may effectively ending the conflict manifested, which will ensure the future perfect coexistence of individuals, or on the other hand, had not been adequately resolved, serve as a condition precedent for the emergence of a potential new conflict. As
can be seen then, every conflict has an internal and an external appearance or externalized, and in that sense, there would be no impediment to any of its facets can use peaceful means of conflict resolution in order to solve the disputes (potential or real) that may arise between individuals, a vision that looks precisely, restoration, or in his case, the maintenance of social harmony "within a culture of peace.
3. REQUEST FOR CONCILIATION "SETTLEMENT IS IDENTICAL TO A LAWSUIT (O visceversa)?
Civil Procedure Code sets out certain requirements to be entitled to action in court by filing a lawsuit. Thus we speak of the procedural requirements that are prerequisites for the existence of a valid legal proceedings. Who exercises his right of action and viable through a lawsuit, you must meet a set of requirements at the time of filing. Some of these requirements are so regularly and consist of the obligation of accompanying annexes to accompany this claim or of some formalities that make it viable. On the other hand, there are substantive requirements because they are called intrinsic, ie, are linked to the essence of the demand and procedural legal act. Thus, accurately identify the claim, specify the quality with which it is claimed, properly raise an accumulation. Both documents, make a doctrine which is known to demand requirements, another Budget Procedure of singular importance and decisive, like the others, to establish a legal relationship valid procedure.
As the procedural present in a process helps to ensure the existence of a valid procedure, the conditions of action are viable a valid decision on the merits. In doctrine generally accepted peacefully that are part of the conditions of action, the interest to act and legitimacy to act. Interest to act, or procedural interest is basically a necessity, when a person has a material claim before the procedure may make it claim, whether or not regulated, a series of events to seek to meet their claim before starting the process from request, plead, beg, request, demand, urge, or threaten the bound. It is said that there is an interest to act when the person has exhausted all efforts to satisfy its claim material and has no choice but to resort to the court. Legitimacy to act, also called substantive legitimacy or ad causam legitimatio is when has or is believed to have a conflict of interest or relevant legal uncertainty which may be converted into procedural claim, is to start a process or continue to participate as an applicant to the person or all people should have that capacity and as part defendant to the person or persons they are concerned that quality.
But in conciliation court, be part involves more than being entitled under the operating criteria for civil proceedings. In general we could say that not every person is entitled to file his application for conciliation, but will only do so who is entitled to it. However, this legitimacy would without any inconvenience to anyone involved in the conflict (primary or secondary party) may submit an application for conciliation conciliation as a means of settling disputes. The problem arises when trying to determine who would be part of the conflict and the definition of the conflict is broader than procedural part, because a natural or legal person may submit an application for settlement if you have any interest in resolving the conflict, ie, if the conflict involves or affects the direct or indirect. In other words, in strictly procedural terms there may be lack of standing to initiate legal action in relation with the controversial issue could not provide evidence of their existence, but taking into account the dynamics of the conciliation court itself could file a request for conciliation, since it is part of the conflict over the role in the dynamics presented in the conflict situation. For example, when before the abandonment of one parent, the guys could request the establishment of a visitation for his nephew, or when we want to collect a debt which we do not have any document that proves either because been lost or simply because there is a debt being verbally.
In conciliation the conciliator is important identify who are the part of the conflict, and to do so, must be separated from the principles of procedure that apply to define who is a party (procedurally speaking), since in this case the settlement goes further because what is sought to resolve the conflict is fully and not only the legal dispute.
We must stress that reconciliation is not a method to replace the judicial intervention, but in view of the matter or the personal circumstances of those involved may be a more feasible route. Judicial intervention and arbitration have in common the resolution of the dispute by a third party acting evidence by the parties, and that decision is inevitably an adversarial mode almost always disastrous consequence of a winner and a loser, unlike the reconciliation that emphasizes the restoration of the communication process between the parties and relationships future, and the coincidence of wills as an essential prerequisite for attempting to resolve the conflict.
In this sense, the Italian maestro Mauro Cappelletti conciliatory justice noted that "as an expression of an alternative to traditional justice-no tendency to resolve conflict in a sharp agreeing with one or other of the parties, but a more peaceful, one way co-existential justice for those who must then continue to live, a way of disputes wormer, that is, a warmer way to resolve disputes between those who sought to leave the resolution on good terms, without winners or losers, and advocated a different system of traditional justice and bureaucratic. A view of the Italian master had to "dérregularizar, délegalizar, déprofesionalizar" (sic) looking for simple solutions, equitable and settlement.
Though also remember that the limits for submitting a dispute to conciliation are on account of the matter when they are involved issues of public policy. The notion of "public order" refers to all those controversial issues that can not be agreed freely by individuals and the imperative to be regulated by law, all by himself, must be resolved through a binding court ruling, which excludes them from being materials considered reconcilable, as stated in article 7-A Reconciliation Act.
4. NATURE OF DOCUMENTS RELATED TO THE CONFLICT: Attachments are not evidence.
When the Rules of Conciliation Law, Supreme Decree N º 014-2008-JUS, states in paragraph 4 of article 14 º that must accompany the request Single copies the document or documents related to the conflict, note that not speak of evidence, only documents related to the conflict, which have the quality of Annexes, which only serve to inform, through documents, the facts stated in the application and therefore will reinforce the position of the parties.
should be noted that not all Annex will serve as evidence, as required by the rules of section 425 of the Code of Civil Procedure would serve to test some annexes situations as diverse as the legal representative of the applicant, or support the request. But remember that the settlement does not act means of proof of any kind since it is not the mediator but the parties themselves decide the merits of the dispute in the exercise of their private autonomy.
Many times when documents are presented as evidence of the situations we are presenting the parties are focused on rights-based discussions and written on them, and when the conflict becomes a discussion of rights limits us to get to the reasons for which they originated.
On the issue of what documents are required to qualify parts when receiving a request for conciliation, which must keep in mind is that the documents should be the minimum from a formal point of view, and if not bring it impossible to start the process since these documents are essential in the case of legal persons who must necessarily submit the registration and the document containing the legal representation and the corresponding term of power, in the case settlement of minors who are parents must present a birth parent and child, as reported in these documents who are parents and we demonstrate that the entrenchment against the termination of disability covered by article 46 of the Code Civil. In conflicts over property rights law requiring registration, as the case of real estate or vehicle ownership are the starting registry key documents containing the inscription because they only identifies the owner (but remember that our registration system is declarative and does not require registration.) Otherwise we have in the case of heirs, you initiate a grievance procedure for division and partition must necessarily submit the documents accrediting them as heirs declared and therefore they hold full rights on the estate.
But we need a fundamental idea: a thing are the documents relating to the ability of the parties and the act of disposal of rights, the minimum that would qualify the request conciliation and quite another thing is the evidence. Thus, the evidence is central to the settlement because the parties do not seek to convince the mediator on the veracity of his claims because he does not decide the merits of the dispute, or seek legal truth, only guides the conciliation proceedings. Recall that the settlement is a consensual institution based on the principle of the autonomy of the parties conciliatory, which reconciled only if they both so wish, whether or not there are documents showing through, and if the legislature allows people to have to reconcile conflicts is because try as they may require give them up, since it is a feature of the settlement the chance to meet face resignations unilateral or bilateral. On the other hand, if we were talking about evidence within the conciliation proceedings, these would be inconvenient for the management of the conciliation and that if we consider that conciliators are plenty of lawyers, many of them may tend to guide the settlement depending on how that the evidence presented and understood the conciliator, affecting their impartiality.
In this regard, the substantial difference of conciliation with the judicial process is that in the latter is pursued to find the so-called truth legal, since it is procedural principle that any party asserting or denying something must prove it by the evidentiary basis of the principle of burden of proof, and this activity is focused on causing evidentiary certainty the judge, the same to be fed its decision when it issued its ruling on the contrary, in the settlement activity there evidence whenever the third called mediator does not decide the merits of the dispute but helps the parties to try to resolve the conflict leading to that effect of the procedure and specifically the settlement hearing and the parties themselves if they decide they want to resolve, regardless of whether There are documents related to the conflict.
is also pertinent to point out that the Rules of Conciliation Act makes specific reference to evidence of simple copies of the documentation, requiring not send original documents or certified true copies or the documents related to the conflict in the middle not it is evidence. In this sense, flexibility in family matters it would be interesting to re-adopt a provision in the second paragraph of article 13 of the repealed First Regulation Reconciliation Act, approved by Supreme Decree N º 001-98-JUS that pointed out that in family cases and those cases which shall not exceed 10 units of Reference Procedure, the Mediation Center for free will attest to the authenticity of original documents, without leaving a copy.
5. CREDITS WILL ALWAYS DEMANDED THE CONFLICT?
The legal framework governing the conciliation procedures provided for the requirement of proving the existence of the conflict, the mandate is met by the simple presentation of a copy of the documents related to that. However, this legal requirement would be impracticable for certain types of disputes that require a solution through compromise and we will mention very briefly.
5.1. Sustaining conflicts without documentation.
In the case of conflicts between neighboring nuisance caused by or in the case of a loan of money made verbally and as a result of a high degree of friendship or familiarity we would not be in a position to comply with documented proof of existence the conflict since it would be impossible in this case attach the relevant documents because simply do not exist.
other hand remember that in some free Mediation Center of the Ministry of Justice, designed to serve poor people, who ordinarily rely on orality as a feature of their economic relations, " come to replace this absence documentary by signing affidavits, which shows an attachment to the procedural view conflict resolution as requiring some kind of document that proves the statement.
Recall that in the case of oral contracts, they contain obligations on the legal framework does not require compliance with some kind of way, being the ad probation, that is, the way would only serve to prove in a subsequent process and eventual court the existence of the act but are not given punishes failure of writing to not be pre-set in the legal framework. In this course, think that there is no dispute between neighbors or no debt because you can not attach to the application a document attesting to disregard the reality of much of commercial transactions that occur in society as well that evidence aside the presumption of good faith of the conciliatory.
Moreover, as Hernando de Soto, extralegal property contracts underpinning nearly all property systems and are part of the reality of every country, and as Richard Posner points out, the property is a social construction, meaning property agreements that work best when people have reached a consensus on how to become owners of assets and rules governing their use and sharing; why in the Third World extralegal social contracts for a reason prevail understandable: they were more effective than formal legislation when building the current consensus on how assets should be governed. He argues that a right need not have been defined by formal norms to be legitimate, it being sufficient that a group of people strongly support a specific agreement for it to be sustained as a right and defended against the formal law.
5.2. Formalizing agreements.
we have a similar situation where the parties decide to resolve their disputes through informal agreements, whether oral or evidenced by private. We think that there would be no objection to such agreements are formalized through the signing of a deed of settlement, which would give greater force to these agreements according to the value that the law gives to the minutes, which is enforceable extrajudicial nature (similar to a sentence), and in case of default is passing directly to implementation, avoiding the hassles of going through the stages of a cognitive process (postulatoria, probation, and contesting decisions). For instance, the finalization of the payment of child support that was already giving informally through a verbal agreement between the former spouses, or oral agreement between landlord and tenant to ensure compliance with the restitution of possession of the property, or extending the term of the lease expired or can proceed to the recognition and payment of the improvements.
In these cases, through prevention efforts, the parties decide on the one hand prevent the prosecution of the merits of the dispute if it arises, and on the other, decide to submit directly to the rules of the process of enforcement of judgments , thus preventing them, at least to the party injured by the breach-transit through a long judicial process so as to obtain a conviction. This figure not only benefit the parties involved in the act of resolution but also indirectly to the judiciary because it would not participate in the development of a process of seeking legal truth, but merely act as a body responsible for implementing agreements only if these are infringed, contributed to discharge of judicial office.
5.3. Claims determined.
other hand, recall that the conciliation proceedings shall not be credited any conflict because there is a possibility that this conflict is raised in the request for conciliation but in the respective settlement hearing in what is known as determinable Claim . In this regard, Article 7 of the Regulations if it is true does not define what a claim is determinable, only indicates that there is no objection to the conduct of conciliation, the parties set different claims than originally foreseen in the application.
In this regard it should be noted that this implies the possibility of extending the original claim in the application, and can be given by both the applicant and the invitation to conciliate at any time during development of the settlement hearing. This is a feature of conciliation court to the extent as conciliator will not be able to fully define the topics covered the dispute or controversy themselves solely with the claim contained in the application for conciliation, which is why when identifying the problems that exist will attempt to resolve the possibility of joining other controversies and could be configured in a position to determine background to the conflict solution. In this case, the settlement should also refer to the latter, and note that there is no requirement that these claims are proven documented, although that would be considered also as a conflict, it is not raised in the request for conciliation but during the development of the settlement hearing.
5.4. Other cases of prevention.
5.4.1. What happens when an application is declared unfounded?
After the development of a trial, the judge must decide whether the demand should be estimated and thus be declared well-founded, considering that in these cases declared the existence of a right which is repaired breach in a ruling estimate but when an application is declared invalid, the judge has considered that it lacks legal basis and therefore, states that there never was any involvement of law, and that assessment is just that evidences that the state court system, can not put it directly, the possibility of judicial proceedings are initiated only by the perception of conflict in one of the parties, namely, that the party has placed before the court its view of the conflict, but to be contrasted with reality shows that The conflict never existed to the right and in any case the conflict was in the personal sphere (intrapersonal) and raised it in reality its application on the basis of an internal conflict and the best on the basis of a potential conflict.
5.4.2. What is the role of collateral?
Figures security interests have emerged from distrust or, if you say otherwise, to ensure the legal relationship between two parties and resolve any damage it may need to be covered for one of them, and that being so, this figure assumes the obligation of future performance from visualize potential conflicts and to ensure no actual conflict.
In that sense, it is clear then that both the justice system as their own substantive law provide for the use the use of protection mechanisms and / or protection of citizens against potential conflicts and conflicts not only for real.
Recall that the purpose of the collateral pledge-whether or mortgage, is precisely to ensure the fulfillment of an obligation, and to a possible non-compliance is the implementation of the guarantee given the sanction to be imposed, although not always remember to run, with the motivation of its constitution to guarantee the provision the fulfillment of an obligation in the event of a default scenario, in the process of prevention.
6. POSITION OF THE MINISTRY OF JUSTICE.
The Directorate of Extrajudicial Settlement and Alternative Dispute Resolution of the Ministry of Justice issued Circular No. 01-2010-JUS/DNJ-DCMA dated December 20, 2010, which recommends a grievance system operators (ie, the conciliators and the center-court conciliation procedures) take into account and verify previously irreconcilable matters freely available and in family matters on maintenance, custody and visitation of children girls and adolescents (under penalty of disciplinary proceedings have commenced) the following:
- You only receive and process requests for conciliation where there is a conflict of interest outstanding, duly attested by documents relating to the conflict of interest.
- The conflict has not been previously resolved before going to a mediation center.
- there are no prior agreements before a notary public or privately using the grievance system for finalization.
- The parties who hold a conciliation order (must see the legitimacy, due representation and voice) as well as the power to make law on conciliation.
- Arrive agreements are not contrary to the laws of interest to public order and morality.
- Comply with the requirement of the existence and presence of parties to the settlement hearing (applicant and guest) in accordance with Article 15 and 24 of the Regulations of the Conciliation Act.
words, regardless of whether it arguable that this trade is bound to compromise the system operators will not be contained in any rule of law, the governing body of extrajudicial conciliation in Peru condemn it to be used only as a mechanism for conflict resolution, understanding to any situation of conflict and controversy that is externalized in reality, and therefore demand-with-procedural criteria undoubtedly be credited to the conciliation center that the conflict is already materialized in reality and also supported by documentation reference to that, forgetting that the nature of some disputes impossible to comply with this requirement (as in verbal obligations to cite one example).
speculate a bit. This office would suggest that the assumption of the governing body of the settlement will be to warn a party conciliatory behavior motivated by a constant bad faith, which could be read between the lines as follows: if the conflict is not credited so in advance using submission of documents related to the conflict, then the settlement to which it might arrive will be the product of collusion and conspiracy conciliatory party in order to avoid damage claims and rights of others through acts of unilateral or bilateral arrangement own la conciliación , lo que a su vez demuestra que existe una vulneración del principio de buena fe regulado en la Ley de Conciliación y su Reglamento.
Además, si cabe la analogía, esta percepción de restringir el empleo de la conciliación únicamente como un mecanismo de resolución de conflictos exteriorizados será como el bombero que llega cuando el incendio devora y consume un edificio, impidiéndosele realizar labores de prevención que resultarían más beneficiosas a nivel social.
Consideremos algunas ideas. Por un lado, si la exigencia es presentar copias simples de documentos relacionados con el conflicto, estos documentos podrían ser falsificados o creados por las partes in cases in which, motivated by bad faith, chose to rely on the settlement to avoid debts or violate obligations. In this sense, the simple requirement to include copies of documents related to the conflict would be purely formal.
On the other hand, as we have seen, not always a conflict is externalized in reality, since it can be understood as a limited conflict of interest that could very well be settled by the parties involved in that by harmonizing the differences without that externalize. Or simply previous agreements that require a more efficient legal protection and therefore seek formalized through the signing of an agreement compromise, it has the advantage of being executable, as opposed to particular conventions for achieving this must be tested before in a natural cognitive process which in turn means prosecute the dispute with the usual cost, time and emotional for litigants.
7. CONCLUSIONS
Considering the nature of the conflict, in some cases that fails to express itself in reality to operate the harmonization of differences, which means reducing the tension built up between the parties in conflict, being that this activity is perfectly prevention efforts . And the prevention and resolution efforts are not to be excluded, since both are intended to resolve conflicts (externalized or not.)
In many cases the parties involved in a bilateral arrangement they consider employing security mechanisms to provide enforcement of the obligations between them in case of eventual failure as a means of prevention. If the legal system as a whole allows it, then what is the justification for their exclusion from the settlement.
In other cases, we speak of formalization of legal relationships through the use of instruments with greater legal force, which is to be preferred to state or oral agreements that have been private evidenced by a deed of settlement. This means deciding to turn directly to the rules of the implementation process. There would be no justification for preventing the execution of the agreements that have been resolved in a prior conflict between warring parties.
extrajudicial reconciliation must be understood in a different dynamic to the judicial process. As an institution that pursues the resolution of the various types of conflicts that arise in society, we can not be ordered to surrender to rigid and formal requirements that are required and if justified in a judicial process where the resulting minimum guarantees of due process mean establish facts for the court to order that court may decide the merits of the dispute. In conciliation are the parties, and not the third-the one who decides to solve the conflict, with testing or not, are the parties who decide to resolve their dispute if they truly want.
Complementing this, we must consider that the aim of conciliation is to bring peace between the warring parties, and should not be a conflict of interest if it is externalized or not, or if it can prove its existence or not, since what matters is it is sufficient that one party is perceived that a situation of conflict and expressed desires of wanting to reverse this situation to consider a case that is totally compatible. Will then primary role of the mediator to create the space for dialogue to listen to the parties and try to restore communication between the parties relationship as the core budget to start the dialogue to reach a consensual solution which results from the coincidence of the will of them. Or, as Lao Tse said: "Why argue, is worth listening to."
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