XIMENA BUSTAMANTE, MA. BERNARDA CARPIO F., ISABELA MORENO B. Y M. GRACIA NARANJO PONCE
Iuris Dictio 20 (2017), 209-239. ISSN 1390-6402 / e-ISSN 2528-7834. DOI: http://dx.doi.org/10.18272/iu.v20i20.XXX
Estilos de mediación / Denición del problema / Denición amplia del problema / Denición
estrecha del problema / Estilo evaluativo / Estilo facilitativo.
1. An approach to mediation
Alternative dispute resolution methods are those that resolve controversies without the need to
go to court. Typical methods include: neutral assessment, negotiation, conciliation, mediation
and arbitration (Legal Information Institute, 2007). ese are based on mutual understanding
and cooperation principles, in order to settle a conict in a peaceful way (Gonzalo, 2011, p. 32).
e term “mediation” can have dierent meanings depending on the context in which
it is used or depending on whether its emphasis relies on the procedure or on the outcome (Mc-
Guinness, 2010, p.19). However, in an eort to shape what mediation concentrates, it has been
dened as “[...] a non-adversarial procedure, where a neutral third party—the mediator—con-
ducts a negotiation process, assisting the parties to arrive to an agreement”2 (Gozaíni, 2001,
p.99). Mediation is seen as an informal alternative process to litigation, where professionals in
negotiation help the parties jointly reach an agreement (Legal Information Institute, 2007).
Mediation has as its essential characteristic the willingness and consent of the parties
to participate in it. In addition, mediators act as neutral third parties who construct a frame-
work of cooperation between the parties, so that they can reach their own agreement (Gozaíni,
2001, p. 99). “Mediation seeks to incorporate the so-called co-existential justice, where the
acting body ‘accompanies’ the parties on their conict, guiding them with their advice in the
rational search for answers that overcome the crisis” (Gozaíni, 2009). Likewise, mediation is
conceived as a condential space, giving the parties the opportunity to speak freely and make
proposals for resolution in condence that this will not aect any subsequent judicial process.
What mediation nally seeks is that the parties reach an agreement (2009, p.100),
whether it is appropriate to the normative solution, or not necessarily, as it is explained later on
[M]ediation starts from a dierent principle. It is not a matter of reconciling opposite inter-
ests that look at the same situation (contractual or de facto); but to nd a peaceful response, a
exible alternative that does not have the precise framework of the analyzed perspective, being
able to obtain absolutely dierent results from the typical picture that qualies the pretension
and its resistance (Gozaíni, 1995, p.15).
2. Recognition of mediation in the Ecuadorian regulatory framework
Mediation has been recognized in the Ecuadorian legal framework since the enactment of the
Law of Arbitration and Mediation. is specialized law abolished the Commercial Arbitration
Act (which was promulgated on October 28, 1963). us, it went from a law that only regulat-
ed arbitration to one that regulates both mechanisms (Poveda, 2006, p. 10).
e 1998 Constitution followed the trend of recognition of mediation in the country.
erefore, in its article 91, it was prescribed that “[i]t will recognize arbitration, mediation and
other alternative procedures for the resolution of conicts, subject to the law”. Likewise, the
current Constitution (2008) rearmed this recognition by expressing in its article 190 that
“[i]t acknowledges arbitration, mediation and other alternative procedures for the resolution
2 All the quotes originally in Spanish have been translated by the authors.