Alternative means of conflict resolution marc's

When faced with a conflict, we must decide how to resolve it. For example: Juan is very angry and feels that he has been deceived. He relates that a little over a year ago, he rented Pedro a beautiful house in Rinconada, a residential neighborhood with a high socio-economic level. He rented the property for US $ 1,200 per month and a guarantee of US $ 2,400. Pedro paid promptly until 8 months ago; Since then he has only paid $ 500. Juan has talked with Pedro, but despite the repeated promises he has made, he does not comply with paying what is owed. It has been two months that even Juan has not been able to talk to Pedro, who apparently refuses and once they met on the street he behaved in a very unconscionable manner.

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Juan has gone to his friend Ricardo, a lawyer by profession, and has asked him for advice on how he can proceed to achieve the payment of what is owed and also the return of his property, without having to resort to a judicial process, as he considers that this is very slow, expensive and complicated.

Ricardo, after analyzing his case, has suggested some alternatives:

1. Make one last attempt to dialogue with Pedro, for which he recommends sending him a note suggesting a meeting alone to discuss the problem and exchange ideas about the possibilities of its solution. If it does not work, Ricardo suggests that he resort to a third party neutral person, who makes his best efforts to achieve a meeting between Juan and Pedro, so that they can talk about their problem, a meeting that the third person would attend to help them reach an understanding, appease their spirits, help them clarify ideas, In case the meeting gets stuck, Ricardo suggests to Juan that he request, in agreement with Pedro, the third person, help them with some ideas or solution proposals that allow them to decide on some of the proposals.Ricardo tells Juan that if they still do not reach a satisfactory agreement, the way forward would be to agree with Pedro and together designate one or more people to delegate the solution of the problem and that those designated, after studying the situation of Juan and Pedro, determine the way to resolve the impasse and that both Juan and Pedro agree by mutual agreement, abide by what the people designated by them decide.
   • What has Juan done with Ricardo's help? Well, look for alternatives other than the Judicial Process to resolve your conflict. This is precisely what it is about when we speak of Alternative Conflict Resolution Means, better known as MARC's.

CONCEPT OF ALTERNATIVE MEANS OF CONFLICT RESOLUTION - MARC's

To have a broader concept of what MARC's are, it is necessary to have a clear idea about the meaning of the words medium, alternative, resolution and conflict.

Medium

The word resolution comes from the Latin word Resolutio, which means "action and effect of resolving." Resolver comes from the Latin: re and solvere, which means to release, untie. Unleash a difficulty or solve a doubt. Find the solution to a problem.

Conflict

In the Conflict Theory module we saw Stephen Robbins' concept of Conflict:

"Process that begins when one party perceives that another has negatively affected or is about to negatively affect any of its interests"

MARC's concept

Taking into account the explanation given above, we already have a clear idea of ​​what the Alternative Means of Conflict Resolution - MARC's mean. Based on this we can give a definition that describes it in terms of what conflict management means:

MARC's are the alternative processes to the judicial process, available for the resolution of conflicts, in which, rather than imposing a solution, they allow the parties to create their own solution.

MAIN BRANDS

The main alternative processes to the judicial process, in our environment, are four:

to. The Negotiation or Transaction.

b. Mediation

c. The conciliation

d. The arbitration

In order to place ourselves in the context of the main MARC's, we will advance some concepts, which will be treated in greater detail in this and other modules.

The Negotiation or Transaction

The parties face, directly, without the intervention of a third party, the solution of a problem. Example: the case of collective bargaining in the direct deal stage.

Mediation

When the parties cannot directly resolve a dispute and the talks are interrupted, they can turn to a neutral third party to promote new meetings and the restart of the dialogue so that the parties make their best efforts to find a solution. The third party does NOT propose alternative solutions, it only limits itself to being a facilitator of the dialogue. An example is found in collective bargaining when direct deals are broken with the possible consequence of a strike period. The labor authority summons the parties and invokes them to restart the dialogue and the presentation of viable proposals that make an agreement possible.

The conciliation

When the parties turn to a neutral third party, who in addition to convening the parties and facilitating the re-initiation of the dialogue, may, if deemed necessary, make suggestions for alternative solutions to be evaluated by the parties and, if applicable, freely agreed upon.. The conciliator's proposals are only proposals and therefore the parties may not accept them. The decision is in the parts. An example is seen in INDECOPI when it administers a conflict for Copyright, where the affected party claims to be financially compensated. The conciliator, evaluating the facts, can suggest amounts and / or forms of payment. Something similar can happen in a Conciliation Center for claims related to payment of debts.

The arbitration

1. In this case, the parties delegate to a neutral third party the definition and way of solving a conflict. The parties may nominate the arbitrators or accept those appointed by an arbitration institution. The parties have the power to define the procedures. Its rulings called Arbitral Awards cannot be reviewed, on the merits of the matter, in the judicial process.

FORMS OF CONFLICT RESOLUTION

According to the level of control or power that the parties have to resolve a conflict by themselves or through third parties, conflict resolution processes can be classified into three groups:

1. Self-tutelage or Self-Defense Self- composition Heterocomposition. Self-Guardianship or Self-Defense

Conflicts are solved directly by the parties using violence. It has its expression in the primitive way in which our ancestors resolved their differences, making use of their power, where the Law of the strongest reigned. One of the forms of expression of self-defense is war.

In our environment, self-defense is regulated in both the Civil Code and the Criminal Code.

Our Civil Code recognizes the Immediate Possession Defense, by which, every person has the right to defend their properties from possible attempts of usurpation through invasion or violent possession, the affected person being able to make legal use, in the act of the outrage of which he is a victim, of the force to repel and expel the invader.

The Penal Code also contemplates the legitimacy of self-defense, under the figure of Legitimate Defense, when a person is attacked, putting their physical integrity or life in imminent danger.

Autocomposition

In this case, the parties alone resolve the conflict without the intervention of third parties.

Marianella Ledesma defines Self-composition as the "conflict resolution system, where only the will of the parties involved in it will be the only thing that puts an end to such antagonism."

In this classification is located the negotiation or transaction and also Mediation and Conciliation, insofar as it is the will of the parties that resolves the conflict, since the third party - mediator or conciliator - does not have the power to resolve the dispute, as has been explained above.

Heterocomposition

A third party outside the parties defines the solution to the conflict. Forms of Heterocomposition are Arbitration and the Judicial Process.

ADVERSARIAL MEANS AND NON-ADVERSARIAL MEANS.

• Adversarial means: are those in which a third party assumes the responsibility of resolving a conflict, replacing the parties. Typically, we can point to Arbitration and the Judicial Process in this group. Non-adversarial means: are those in which the parties in conflict retain the power to directly resolve their disagreement, sometimes assisted by a third party, but without the latter being able to decide on a specific alternative solution. Negotiation, Mediation and Conciliation belong to this classification.

DIFFERENCES OF THE MAIN FORMS OF CONFLICT RESOLUTION

Dr. Ivan Ormachea Shock, points out that the main MARC's which he calls “primary”, “are distinguished from each other by the degree of control that the third party has in the procedure. "That is to say, starting from the negotiation where there is no control of the process by a third party, we go to mediation and conciliation, where a third party appears with a minimum level of control of the process, and then continue with arbitration and judicial process, where the control of the process by a third party is total.

Ch. Moore, distinguishes five aspects that differentiate the different forms of conflict resolution, including the main MARC's and others such as the judicial process, non-violent action and violent action. These are:

1. The formality of the process The reserved nature of the approach The people involved The decision that will be the consequence The level of coercion exerted by or on the parties in dispute.

See the following graph and chart presented below:

Continuum of forms of conflict resolution

Main differences

The following table, based on the opinion of Ch. Moore, records the most salient differences between the different MARC's and the Judicial Process

Factor	Negotiation	Mediation	Conciliation	Arbitration	Judicial process
Formality	Informal. Defined by the parties	Informal. Defined by the parties	Informal. Defined by the parties	Certain formality. Can be defined by the parties	Rigid and structured by laws and regulations
Reserved character (1)	Private	Private	Private	Private	Public
The people involved in the process	Only the Parties	The parts. Help a third party	The parts. Help a third party who can suggest	Third who can be chosen	Third cannot be chosen
The decision	Corresponds only to the parties	Corresponds only to the parties	Corresponds only to the parties	It is taken by a third party called a referee	It is taken by a third party: judicial authority
Level of coercion or obligation of agreements	When the parties agree	When the parties agree	When the parties agree	Award is binding	Decisions are mandatory.
Participation obligation	Voluntary	Voluntary	Voluntary	Voluntary	required

(1) some processes consider mediation (eg in labor matters) and conciliation (eg judicial process), in which case their nature is public.

WHY ARE BRANDS NECESSARY

In this section we touch on a matter that is of particular importance. Until when will we continue to resolve the differences that we face in the way we currently do? In our society, people who face a problem usually resort to the use of violence (threats, insults, material or psychological reprisals or physical aggression) or to the judicial process, waiting for a third party - the judge - to define who is right and who doesn't have it. Very few use dialogue, lofty conversation and cooperation to seek solutions that satisfy the interests of the parties. This circumstance occurs basically because our society is litigious, that is, it is used to seeing the other party as an adversary,and therefore seeks methods that resolve the conflict in a scheme of adversity, such as violence or judgment.

1. Ury points out:

“What characterizes the degree of civilization of a society is not the greater or lesser conflict of its members, but the way in which conflicts are resolved. There are three main ways to resolve a conflict: on the basis of interests, on the basis of rights and on the basis of power. … The three mechanisms have an appropriate role, but the key is in the proportion. In a sick society, most disputes are resolved on the basis of power, many on the basis of law, and the less on the basis of interests. In healthy societies, the proportion is reversed: most conflicts are resolved by reconciling interests –through procedures such as negotiation and mediation-, some disputes are settled through the law –through judicial mechanisms-, and the least based on power.

According to this approach, our society is still sick, and it is urgent that we find the remedy for its cure. We need to change the culture of conflict in which we are immersed, for a culture of understanding, in order to live in peace and build our future and that of our children in an environment of harmony and social prosperity.

Although the negotiation or transaction, existed since man appeared on Earth and mediation and conciliation are also quite old, however, their systematic study and dissemination is quite recent, and began in the 70s in the United States of America with the purpose that society has new forms that allow, firstly, its possibility of access to justice, and secondly, that the justice service obtained by the population is more efficient, that is, more objective, faster, less expensive and more dignifying, allowing people to exercise their right to define their own solutions, through the use of a varied range of procedures, reserving the judicial process, as a last resort, when other possibilities that present the MARC's.

to. It is necessary to satisfy the interests of the parties

Traditionally in our society, the judicial process has been seen as the natural way that people should use when facing a conflict. Not bad, however this alternative over time has gradually lost efficiency in its response to the needs and expectations of society, among other causes, due to the increase in the population at a higher rate than that experienced by the Judicial Power, which is facing greater limitations every day, in the face of a growing demand, with cases of various nature and complexity.

Additionally, the population's access to education (even with all its deficiencies) and the information facilities that are currently available, has raised the level of awareness of society as a whole. Every day a higher level of quality of care is demanded; And this is not only with reference to the service provided by the Judicial Power, but to that provided by all public and private institutions.

With increasing incidence, the focus is turning to focus on the customer, who is every person who requests or acquires a service or a good. Society is understanding that institutions must be at the service of citizens.

However, the reaction capacity of the institutions, mainly due to lack of resources, does not always achieve this objective, generating a deficit in the quality of the service they provide, as is the case of the Judiciary. This circumstance forces us to see new models that guarantee that the underlying problem - access to justice - is addressed in more efficient ways.

b. It is necessary to promote a Culture of Peace.

The quality of the service provided by the Judiciary, even with a substantial improvement, does not solve a fundamental problem: the need to promote a "culture of peace" in our society, which changes our "litigious culture" for a "culture of understanding."

Conflict is a natural part of people's lives, so we should not worry about its existence. R. Caivano points out that "what is worrying is not the existence of the conflict, but the lack of adequate ways to resolve it"

The judicial process does not leave the creative and responsible solution of the dispute in the hands of the parties. Their results, by focusing only on positions (demands and demands of the parties) further confront people, increasing their discrepancies and therefore, affecting their relationships. Litigation, as a fundamental problem, is not always resolved with a sentence.

For this reason, society is progressively understanding that adversarial methods such as the judicial process are inefficient, and concrete manifestations are beginning to be felt to open the doors to new models that better satisfy their needs.

Regarding the above, Martha Oyhanarte maintains:

“The Law limits the hegemonic power of governments and imposes the rule of law, but as a means of resolving conflicts it provides limited options. The Law is coercive rather than consensual, hierarchical, more than democratic, rigid and predetermined rather than flexible. Make a loser and make a winner. Create a fiction of objectivity. There is no place for hurt feelings…. He is rational, but lacks wisdom. "

c. Problems of the Judiciary

As the population grows and the economic crisis worsens, conflicts increase; However, the Judiciary does not have the capacity to respond, basically due to the lack of resources. The considerable volume of files that must be resolved, limits its operational capacity, generating late solutions.

On the other hand, in addition to the number of files, the complexity and diversity of matters that the same judge has to resolve, affects in some cases the pronouncements, with serious implications that this fact could mean for the affected party.

We also have to recognize that even the Judicial Power does not have a sufficient number of judges and justice assistants; Consequently, their relative autonomy is exposed to pressures that in some cases distort their reason for being, affecting their image and credibility in society.

The lack of sufficient budget to allow an adequate infrastructure with state-of-the-art technology, seriously limits the jurisdictional functions, a fact that is perceived even more in the interior of the country; added to the remuneration of the magistrates, whose income does not allow them a decent standard of living and a permanent professional update, according to their delicate functions as representatives of the State in the administration of justice, reducing their true position. This, only to point out the most salient aspects that affect the jurisdictional function.

In conclusion, we can point out:

1. It is necessary to use new ways to resolve conflicts, reserving for the MARC's, those problems whose complexity and nature allow their solution directly between the parties; having as an alternative arbitration, and when not, the judicial route only for larger problems. This will allow to decongest the workload of the judicial agencies, balancing their operational capacity with the demand of the population, and above all, it will raise the quality of the service it provides. MARC's can result in the vast majority of cases an efficient option to solve conflicts, due to their low cost, time, attention to the interests of the parties and proper management of interpersonal relationships It is necessary to make a greater dissemination of the advantages of MARC's, at all levels,including theoretical and practical programs in schools, universities, technical institutes, public and private organizations, and the entire population in general, in order to create a new culture in interpersonal and interorganizational relationships, based on principles of collaboration, participation and understanding, as the foundations of a “Culture of Peace.

THE NEGOTIATION

The natural way to face and resolve any discrepancy or conflict is, in general, first, to face the problem "face to face", communicating with the other party to achieve a result that satisfies our interests; only when this procedure fails do we resort to other methods such as violence (verbal, gestural or physical), adaptation or submission, or evasion.

This “face-to-face” relationship process, which exists between two or more parties facing a conflict, is known as Negotiation or Transaction, and is characterized, among other aspects, because it is the parties who, directly, without the intervention of a third party, they solve "their problem" .

That is why it is said that the oldest form of conflict resolution is Negotiation or Transaction; even more than the violent form, because before it manifests itself, the parties normally have the opportunity to carry out transactions, which in the vast majority of the time allow a peaceful solution.

When we want to obtain something from our children, wife, boss or coworkers, we carry out transactions, that is, we talk to reach possible agreements that allow us to obtain something in exchange for something, be it goods, behaviors or services.

However, it is necessary to bear in mind that in order for us to negotiate (or carry out transactions) there must be at least two parties who have common interests, but also differing interests, so that in the negotiation process they can carry out transactions by giving something in exchange for something. This relationship is known as interdependence: in order to satisfy my interests and needs, I depend at least partially on other people, who are linked to me by their own interests and needs,

• Elements of a Negotiation

For a negotiation to take place, some basic elements must be present. Among the most important, we can mention the following:

1. There are two or more parties There are common interests and opposing interests The parties must have some measure of power (something that depends on one of the parties and that is of interest to the other party) The parties must seek a solution directly, without the intervention of third parties to your problems.

Negotiation Concept

Summarizing the above, we can define the Negotiation in the following terms:

It is the process by which two or more parties, with common and opposite interests, confront their interests, through dynamic communication, where they exchange goods and services, trying to resolve their differences directly, to achieve a solution that generates mutual satisfaction of the parties.

Forms or Strategies of Negotiation

The forms of solution between two or more parties in a negotiation context can occur in two extremes, within the limit of which there is a variety of forms of negotiation. The following graph better explains this concept:

Competitive Negotiation

It is located in the first case (Win-Lose), it is negotiated in a position where "A" will try to achieve its objectives at any price, at the expense of "B". This type of negotiation is also known as Distributive or Zero Sum Negotiation (what one gains is lost by the other).

Example: When negotiating the price of a car for each Nuevo Sol (S /.) That the buyer of the car obtains from a discount, it will be one Nuevo Sol (S /.) Less than the seller obtains. What one party gets, it gets at the other's expense.

Another example: if two brothers negotiate the way in which they should distribute the profit of US $ 100,000 dollars that they have obtained in a business, for every dollar obtained by "A" it will be one dollar less for "B", basically, because the amount to distribute is fixed, it cannot increase.

This type of negotiation is characterized by " haggling", where each party yields "to a few" until reaching a level where it is achieved (if it is achieved) to reach an agreement dividing the differences. This is a typical case in buying and selling operations, where after a series of transactions it is possible to reach an equidistant point that brings the parties closer to a solution. Then, the parties decide on a solomonic solution: "neither for you nor for me, let's divide the difference."

This form of negotiation is the one that commonly characterizes collective bargaining, where each of the parties begins the negotiation process by raising extreme requests in order to ensure that the objective to be achieved is not affected by "haggling" or "rapprochement." in short steps ”that characterizes this process; in the end, it is possible to reach very close positions that allow dividing the differences without significantly affecting the interests of the parties. When the "haggling" does not allow this approach that makes a solution glimpse and the distances are considerable, the breakdown of direct deals and probably the threat of strike occurs.

The process of Distributive Negotiation is commonly oriented to resolve differences based on positions, generally neglecting the underlying interests of the parties.

Characteristics of Competitive or Distributive Negotiation

1. The goals pursued by one party are incompatible with the goals pursued by the other party. Each party wants to maximize their profit, especially when resources are scarce. The parties act with competitive strategies and tactics that allow them to improve their results: haggling, winning- lose. There is an interdependent relationship in which the parties make concessions in the course of the negotiation. Relationships deteriorate and damage the continuous quality relationship in the long term. When a party feels that it loses, it causes inadversion and increases differences.

Cooperative or Integrative Negotiation

It is the most efficient model of resolving conflicts through negotiation. A way that allows to transform the adversarial and confrontational relationship that characterizes distributive negotiation, into a cooperative relationship, where the parties instead of being “face to face” are located side by side looking for creative ways to solve their differences and find mutually satisfactory solutions. This form of negotiation is known by the name of Integrative Negotiation, Cooperative Negotiation or as Roger Fisher calls it Negotiation Based on Principles. There are several models: that of Karl Albrecht and Steve Albrecht, that of Fred Edmund Jundt and Paul Guillette, the one developed by the Harvard University Negotiation Project,under the direction of Roger Fisher and William Ury which is the most widely disseminated and accepted.

Cooperative or Integrative Negotiation, as its name indicates, integrates the parties together. This is possible, because in this type of negotiation it is essential to differentiate the interests of the positions in order to work fundamentally with the interests of the parties.

The positions are the demands, claims or claims made by the parties. Arguing based on positions generates antagonism and often the breakdown. An example of a position could be the one posed by a landlord: "pay me the rent owed and return the property to me."

The interests are the real motives that generate a demand or claim, that is, a position. They are the needs, desires, concerns, fears and / or aspirations that the parties seek to satisfy in order to reach a satisfactory agreement. If interests are not resolved, in practice the possibility of a conflict remains latent. Example: a person who rents an apartment is fundamentally interested, in addition to the monthly rent, that the person to whom he rents his property, is careful, that he keeps it in good condition, that he is an honest and decent person, as well as compliant. Your interests when renting an apartment could also be to obtain an income forpay with her the pension for her son who studies in the United States.

• Caivano, gives us an example that graphs the difference between position and interest. He tells us that “one can be demanding money (position); the negotiation will be centered, then, in obtaining that money. This merely distributive management will only be efficient if the totality of what is intended is obtained, or at least the greatest amount; but this is often impossible. For this reason, it is convenient to focus on other components of what I intend to obtain: why do I want what I am demanding (interests). So we can see that what I really want is not unfailingly a sum of money, but with it I would later buy, for example, bottles of spring water; my real interest goes from money to water.Here it is possible to find the first possibility of exchange: it is no longer discussed for a single object (money), but the discussion has been opened to two elements (money and water), possibly with different values ​​or importance for one and the other. If you are not willing to give up or hand over money, perhaps you are willing to provide water. But we can go further: open the spectrum of negotiation even further and focus on the reason why I want water (needs), what do I want the water for, what use do I intend to give it? It will be possible to identify, then, that what I need is to quench my thirst. The goal of quenching thirst can be satisfied by obtaining water, but also through other things; water is not the only and exclusive element that will fulfill my objective. Other drinks can satisfy this need. Here the possibilities of achieving exchanges have been further expanded; It is no longer discussed for money or water, but for drinks in general. It will not be essential to obtain a sum of money, but really quench your thirst. And this can be achieved through other issues that are not necessarily monetary. "

This example shows us how solutions to problems or conflicts can be found by going beyond the simple positions that, in general, limit us to a distributive bargaining scheme.

Most important characteristics of Cooperative Negotiation.

1. The parties work in a Win-Win relationship. They adopt creative solutions that allow to enlarge "the pie". The parties work on the assumption that there is more than one arrangement that allows satisfactory solutions for the parties. It maintains and, in many, improves interpersonal relationships, allowing long-term relationships.

Minimum conditions for a Cooperative Negotiation

1. Sensitivity of each party to the needs of the other party Climate of mutual trust Willingness to be flexible.

• THE CONCILIATION

As explained above, conciliation is the process where a neutral third party intervenes, who has the power to suggest alternative solutions when the parties cannot reach an agreement, but the parties retain the power of decision to accept or reject the suggestions of the conciliator.

This power of the conciliator to suggest alternative solutions is what differentiates conciliation from the mediation process, since the mediator limits his / her participation to only promoting dialogue between the parties without being able to propose solution suggestions.

According to R. Caivano, conciliation is an assisted negotiation, since in the conciliation process it is necessary to use negotiation techniques with a neutral third party as facilitator. "To be a good conciliator, it will be a sine qua non requirement to understand the dynamics and characteristics of the negotiation" (R. Caivano, work Cit. P. 113)

Peruvian case

In Peru, Conciliation as an extra judicial procedure is regulated by Law No. 26872 and its Regulations, Supreme Decree No. 001-98-JUS. It is mandatory for its admissibility in the determined or determinable claims that relate to available rights of the parties. Family and labor matters, by Law No. 27398, are temporarily excluded from the obligation.

to. Main Characteristics of the Settlement

1. It is voluntary. The parties are free to participate or not in the conciliation process. Autonomy of the parties. The agreement depends exclusively on the will of the parties. Flexibility. The procedure is flexible and has a minimum of formalities that must be respected. Intervention of a Third Party. A neutral and impartial third party, accepted by the parties, called a conciliator, intervenes in the process. Process Control. It is under the responsibility of the conciliator. Solution formulas: The conciliator is empowered to propose alternative solutions, as proposals; never mandatory. Binding effect. The agreements that the parties freely reach and are recorded in the minutes are mandatory. In the process, the parties can participate in the company of people they trust, whether they are lawyers or not. The advisor cannot interfere in the decisions of the parties or assume a leading role in the discussions.

• Ethical Principles that regulate the Conciliation

They are regulated in the Conciliation Law and its Regulations, and are as follows:

1. The conciliation must be aimed at achieving fair agreements that do not affect the rights of third parties unrelated to the parties. The conciliation must be aimed at seeking the real interests of the parties. Good Faith. The parties must proceed honestly and loyally. The conciliator and the parties must keep absolute reserve of everything supported or proposed. Nothing that is manifested in a hearing can be revealed, nor can it be used as evidence in a judicial or arbitration process, except criminal acts Neutrality and impartiality. They are guarantees of security and justice. In the process, the conciliator may not be biased with the interests of any of the parties. The agreement reached by the parties must respect the legal system. Celerity and Economy. The conciliation process must allow a prompt and rapid resolution of the conflict, allowing the parties to save time, costs and others that a judicial process would demand.

THE ARBITRATION

Arbitration is a process by which the parties agree that a neutral third party will resolve the conflict by evaluating the arguments presented.

In Peru

It is regulated by Law No. 26572, which modified Law No. 25935, introducing important improvements. This legal device is considered one of the most modern and progressive in Latin America. In this regard, R. Caivano, commenting on the Peruvian Arbitration Law, maintains the following:

“ We highlight –as something worthy of imitation- the Peruvian example, where a profound process of modernization of the arbitration legislation was carried out, the task having been undertaken with great seriousness and professionalism. Although Decree Law No. 25935 had meant an important step, the new Law No. 26572 has finished perfecting the regulations, giving Peru an excellent legal framework for arbitration. Law No. 26572 solves the defects that still persisted, collects international experience, incorporates numerous formulas to make arbitration an agile and expeditious system, but without losing legal certainty, and substantially improves the legislative technique.

This means that today Peru has one of the most modern and progressive legal norms on the subject, which will serve as a model for many of the Latin American countries that have yet to update their norms. "

For the purposes of the exposition we will base ourselves on what is indicated in the limited legal device.

Arbitration Matters

• Determined or determinable controversies of free disposition Environmental matters, being able to extinguish an existing judicial process or avoiding the one that could be promoted Amount of civil liability without a firm judicial resolution.

No need for prior authorization:

• Disputes derived from contracts that the Peruvian State and legal entities of public law enter into with nationals or foreigners domiciled in the country, including those that refer to their assets Disputes regarding contracts concluded between legal persons of public law with each other Disputes derived from contracts entered into by state companies under private law or mixed economy, with nationals or foreigners domiciled in the country; including those that refer to their

Exceptions established by the Arbitration Law

• Those that deal with the status or civil capacity of people Those referring to assets or rights of the incapacitated, without prior judicial authorization Those in which a final judicial decision has fallen, except for financial consequences that arise from their execution as they exclusively concern the parts of the process. Those that concern public order or deal with crimes or misdemeanors Those directly related to attributions of the State or of persons and entities of public law.

Arbitration Agreement

It is the agreement by which the parties decide to submit to arbitration the disputes that have arisen or may arise between them regarding a certain contractual or non-contractual legal relationship, whether or not they are the subject of a judicial process.

1. It is held in writing, under penalty of nullity. It obliges the parties and their successors to carry out whatever acts are necessary for the arbitration to take place, to have full effect and to comply with the Arbitration Award. It may stipulate sanctions for the party. It may establish guarantees to ensure compliance with the Arbitration Award. It may grant special powers to the arbitrators to enforce the Arbitration Award in default of the obligated party.

Statutory Arbitration

It constitutes a valid arbitration agreement.

It is when a civil or mercantile society, civil association or other legal persons, consign in their statutes or equivalent regulations, compulsory arbitration to resolve controversies that may arise with their members, partners or associates, or between them regarding their rights referred to:

• Compliance with statutes or equivalent regulations Validity of agreements Others referring to matters related to the activities, purpose or corporate purpose of the institution.

Probate Arbitration

It also constitutes a valid arbitration agreement.

It is considered as such, when a will expressly provides for arbitration to resolve the differences that may arise:

• Between non-compulsory heirs or legatees For the portion of the inheritance not subject to legitimate Disputes on valuation, administration or partition of the inheritance and for the controversies that arise in these cases with the executors.

Arbitration Institution

It is those institution that is empowered to organize and develop arbitration proceedings, for which, as the only requirement, it must be established as a legal entity.

Powers of the Arbitration Institution

1. Appointment of arbitrators Establish procedures and rules of arbitration, which must be contained in the arbitration regulations.

Way in which communications should be handled

Unless otherwise agreed, it must be delivered:

• to the recipient or at the address indicated in the contract If not indicated in the contract, at the real address or habitual residence If none of the above can be determined, at the recipient's last real address or habitual residence known by registered letter or other means to leave a reliable record of delivery; with which the correspondence is considered delivered. Notices by cable, telex, facsimile or similar means that unequivocally record the communication are valid, unless otherwise agreed by the arbitration agreement or negative provision of the arbitration institution regulations. All communication is considered received on the day of delivery.

Types of Arbitration

They can be of Law or of Conscience.

Law arbitration

When the arbitrators decide in accordance with the applicable law.

Arbitration of Conscience

When the referees decide according to their knowledge and to the best of their knowledge and belief.

(*) Unless agreed against, it is understood that arbitration is conscientious.

(**) Unless otherwise agreed, it is exclusive and exclusive of the jurisdictional function

(***) also arbitration can be national or international. This presentation is limited to the most important aspects of national arbitration.

The referees

The arbitrators fulfill their functions according to the conditions established by Law and which are the following:

1. They must not represent the interests of either party. They must exercise their position with absolute impartiality and absolute discretion. They must exercise full independence. They are not subject to order, provision or authority that undermines their powers. They enjoy professional secrecy. They are remunerated, unless expressly agreed otherwise. They can impose fines up to a maximum of two (2) Tax Units to the party that fails to comply with their mandates. The fines are for the other party, must appear in the Arbitration Award and are executed jointly with the Award.

Appointment of Referees

1. They are appointed by the parties or by a third party that may be an arbitration institution. It can be carried out by a civil judge, when the parties do not do so within 10 days. They must be an odd number: one (sole arbitrator), three or more (arbitral tribunal). In the absence of agreement or in case of doubt, the arbitrators are They can be nationals or foreigners. The appointment of arbitrators by law, must fall on them. They must be natural persons, of legal age, in full exercise of their civil rights.

Impediments

They are incompatible to act as arbitrators, under penalty of nullity of the appointment and the Award:

1. The Magistrates, except the Justices of the Peace, the Prosecutors, Public Prosecutors and Coercive Executors, President of the Republic and Vice Presidents, Congressmen, Members of the Constitutional Court, General and Superior Officers of the Armed Forces and National Police; Except for assimilated professionals. Former magistrates in cases they have heard. The Comptroller General of the Republic in arbitration proceedings in which the entities under their control participate. The Arbitration Award

It is the ruling that resolves the controversy submitted to arbitration.

Conditions that the Award must meet

The Award is issued under the following conditions:

1. It must be in writing, with the particular votes of the arbitrators, if any. As long as it is signed by the required majority. The arbitrator who does not sign or cast a private vote is understood to adhere to that of the majority. It has value of Thing Judged.

Requirements that the Award must contain

The Award must contain the following minimum requirements:

1. Place and date of issuance Name of the parties and arbitrators Issue submitted to arbitration and a summary reference of the allegations and conclusions of the parties Assessment of the evidence supporting the decision Factual and legal grounds for admit or reject the respective claims and defenses; andThe decision.

Requirements of the Award of Conscience

The Award of Conscience must necessarily meet requirements 1, 2, 3 and 6 indicated above. Additionally, present a reasoned motivation for the decision.

Notification of the Award

The arbitration award must be notified to the parties within five business days of being issued.

Arbitration Costs

The arbitrators will rule in the Award on the costs of the arbitration, bearing in mind, if applicable, what is agreed in the arbitration agreement.

Costs include, but are not limited to:

1. Remuneration of the arbitrators Remuneration of the lawyers of the parties Remuneration of the secretary who would have been appointed, if the latter were not an arbitrator Expenses for the formalization of the Award when it has been agreed Remuneration to the arbitration institution, if applicable. had been imposed on any of the parties.

If the agreement does not contain any agreement on expenses, the arbitrators will rule in the Award on its conviction or exoneration, taking into consideration the result or meaning thereof.

If there is no conviction, each party will cover their expenses and those that are common in equal proportions.

Common expenses

The following are understood as common expenses:

1. Remuneration of the arbitrators Remuneration of the secretary, if he is not an arbitrator Remuneration to the Arbitration Institution, if applicable.

Finally, the arbitrators may not charge additional fees for the correction, integration or clarification of the Award that they have issued.

Requests and Resources

Within five business days after receiving the notification, the parties may submit three types of requests:

1. Clarification, Correction, Integration.

Within the same period, the arbitrators may, on their own initiative, make corrections or integrate any matter related to the Award.

The deadline to resolve any of the three requests is five days after the request is received. This term may be extended for a term not exceeding ten business days, as long as there is a request from some of the parties for corrections, additions or clarifications to be made. This extension does not apply when the actions are initiated by the arbitrators.

Correction:

It proceeds when material, numerical, computational, typographical and similar errors have been incurred.

Integration:

It proceeds when it is omitted to resolve any of the points of the controversy

Clarification:

It proceeds when any point of the Award is not presented clearly enough and may be open to misinterpretation.

Resources that the parties may submit

Only two types of resources come from:

1. Appeal Appeal Appeals for Annulment.

Appeal:

Its purpose is to review the Award in relation to the assessment of the merits of the parties, the evidence and, where appropriate, the application and interpretation of the law. It is resolved by confirming or reversing the award in whole or in part. It is filed within 10 business days of receipt of the award.

There is no appeal against the Reports of Conscience .

It proceeds before the Judicial Power or before a second arbitration instance, as long as:

• It has been agreed in the arbitration agreement, and is provided for in the Rules of the Arbitration Institution.

In the absence of agreement: it is understood that the parties have agreed only for a second arbitration instance.

Appeal for Annulment

Its purpose is to review the validity of the Award, without going into the merits of the controversy. It is resolved by declaring its validity or its nullity. It is prohibited, under responsibility, the review of the merits of the controversy.

This appeal is filed before the Judiciary, provided that there are the following grounds:

1. That the appellant has questioned the arbitration agreement in due course. That the appellant has not been duly notified of the appointment of an arbitrator or the arbitration proceedings, or has not been able for any other reason, to assert their rights, as long as the right of defense has been manifestly impaired, the breach or omission having been the object of an express claim at the time by the party considered affected, without having been corrected in a timely manner. That the composition of the arbitral tribunal has not been adjusted to the agreement of the parties, unless said agreement was in conflict with a legal provision from which the parties could not deviate or, in the absence of an agreement, that they have not complied with said provision,Provided that the omission has been the subject of an express claim at the time by the party that is considered affected, without being corrected in a timely manner. That it has been awarded without the required majorities. That the Award has been issued after the deadline, provided that the party that invoke this cause, he would have stated it in writing to the arbitrators before being notified with the Award. That the award has been made on a matter not expressly or implicitly submitted to the arbitrators' decision. If the matter that has been the subject of the Award is not the subject of arbitration according to Law.That an award has been made on a matter not expressly or implicitly submitted to the decision of the arbitrators, if the matter that has been the subject of the Award is not subject to arbitration pursuant to Law.That an award has been made on a matter not expressly or implicitly submitted to the decision of the arbitrators, if the matter that has been the subject of the Award is not subject to arbitration pursuant to Law.

BIBLIOGRAPHY

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ROYAL SPANISH ACADEMY; Dictionary of the Spanish Language, T. II. P. 892. Twentieth edition. 1984.

ROYAL SPANISH ACADEMY. Ob. Cit. TIP 76

ROYAL SPANISH ACADEMY; Ob. Cit. T.II. P. 1179.

ROBBINS, Stephen P., Organizational Behavior, Concepts, Controversies and Applications, Ch. XIII, P. 461. Edit. Prentice Hall, Sixth Edition, 1994.

LEDESMA N., Marianella: "The Conciliation Procedure, a Theoretical-Normative Approach". P. 47. Edit. Legal Jaceta. First Edition, 2000.

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MOORE, Christopher: “The Mediation Process. Practical methods for conflict resolution ”. Edit. Gránica, P. 29 and Ss. nineteen ninety five.

Table adapted from that presented by Ch. Moore in work cit. P. 30

Dr. Ormachea in his "Conciliation Manual", P. 46, presents a table with 9 factors elaborated based on the text of Goldberg, Green & Sander: Dispute Resolution. 1985. P.8 (Cited by Ormachea, Iván)

URY, William: Report your visit to the Libra Foundation. Libra Magazine, year 1, N ° 2, 1999. P. 19. Cited by R. Caivano, work cit. P. 32.

CAIVANO, Roque J., and others: Negotiation, Conciliation and Arbitration. Alternative Mechanisms for Conflict Resolution. P. 24. APENAC Editor. 1998.

In “Mediation: A Transformation in Culture” by J. Gottherl and Adriana Schiffrin. P. 30. Edit, Paidos. First edition. nineteen ninety six.

ALBRECHT, Karl and ALBRECHT Steve. How to Negotiate Successfully. The Advanced Method for Building Fair Deals for All ”. Edit. Granica. 1998

JUNDT, Fred E. and GUILLETTE, Paul. “Win Win Negotiating. How to turn conflict into agreement ”. Edit. Compañía Editorial Continental SA de CV- Mexico - 1987.

FISHER, Roger and URY, William. "If, according. How to negotiate without giving up ”. Editorial Norma. 1985

CAIVANO, Roque. Work Cit. P. 97 and 98.

CAIVANO, R. Obra Cit. P. 113

CAIVANO, R. Obra Cit. P. 42

As a complement to this document on alternative means of conflict resolution, we suggest the following video-presentation in which the main elements of conciliation, arbitration and negotiation are synthesized as alternative mechanisms to find solutions to organizational conflicts.

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