Conciliation and ADR in Colombia

conciliacion MASC Colombia 1

What are ADR ?

Alternative dispute resolution methods in Colombia emerged with Law 23 of 1991, which gave third parties the ability to mediate some disputes that arise between people and gave people the possibility of resolving their conflicts without the need to go to the judicial branch. They are also regulated by Law 1563 of 2012.

These are alternatives to judicial proceedings through which the parties (natural or legal persons) may, with or without the assistance of third parties, resolve conflicts arising in certain matters. Sometimes these are requirements before initiating legal proceedings, for example, in family law proceedings such as the setting or modification of child support payments. It may also be agreed by the parties in the conclusion of contracts that, in the event of disputes arising, these mechanisms will be used.

There are some alternative dispute resolution methods that can be used:

  1. Conciliation: is whereby the parties resolve disputes with the assistance of a third party called a conciliator. The conciliator must be neutral, impartial and qualified. It is a prerequisite to go to court in certain matters.
  1. Arbitration: is a mechanism whereby the parties resolve a matter through an arbitrator who, at the end of the process, issues an arbitration award, which is a kind of judgment rendered by an arbitration court and becomes res judicata.
  1. Amicable composition: is a mechanism by which the parties appoint a person (must not be a lawyer) to act as agent and solve the conflict presented. There must be an express agreement between the parties to be able to resort to this mechanism. It becomes res judicata but the parties may allege nullity (they must prove the cause of nullity) and go to court.
  1. Mediation: is a mechanism by which the parties choose a third party to help them resolve a conflict. This third party must not be a lawyer or have any special status, does not make decisions and does not impose agreements on the parties. The solution reached is not enforceable against the parties unless it is notarized. Even if the parties have agreed to resolve the conflict through mediation beforehand, they may not continue with the process and use another method or go to the judicial branch.
  1. Transaction: is a contract whereby the parties, in the face of a conflict that arises, agree to terminate the business in order to avoid a judicial or arbitration process or, in the event that they are already in one, to avoid its continuation. In this mechanism there is no third party mediating the agreement, but rather the parties themselves agree on the termination of the business and the conditions of such termination.

Issues that can be solved through ADR

The issues that can be resolved through these mechanisms are:

  • Liquidation of conjugal partnerships or de facto patrimonial partnerships, separation of assets, cohabitation problems and fixing or modification of alimony, child custody and visitation regulation.
  • Liability in traffic accidents not involving personal injuries.
  • Debts and loans.
  • Labor issues.
  • Personal injuries caused by negligence.
  • Damage to other people’s property.
  • Indirect libel and slander and breach of trust.
  • Disputes over boundaries, water crossings, garbage, conflicts with livestock or pets, and land tenure issues.

There are certain issues in different areas that cannot be resolved through these mechanisms:

  • Family: change of marital status, divorce, cessation of civil effects, marriage annulment, adoption and parental rights.
  • Contracts: leasing of public property.
  • Criminal: non-prosecutable offenses or offenses involving deprivation of liberty.
  • Agriculture: land use and family farm unit.
  • Traffic: accidents involving death or incapacity for more than 60 days.
  • Environmental: pollution and logging and burning of forests.
  • Police: fines and penalties.
  • Commercial: economic insolvency and sanctioning coercive collections.
  • Administrative: conflicts with public entities.

In Colombia, the trend in the use of these mechanisms for conflict resolution has increased in recent years. In 2020, 98,05 applications were submitted, in 2021, 126,596 applications were submitted, and in 2022, 158,037 applications were submitted. These mechanisms are increasingly used by individuals and, in addition to being faster, cheaper and more efficient than judicial proceedings, they help to decongest the judicial branch.