THE NEED TO INTRODUCE ADR COURSES IN THE PANAMANIAN LAW CURRICULA, A PRACTITIONER PERSPECTIVE

THE NEED TO INTRODUCE ADR COURSES IN THE PANAMANIAN LAW CURRICULA, A PRACTITIONER PERSPECTIVE.

For

Program on Negotiation, Harvard Law School

Negotiation Journal

Salvatore Bacile Ladaris

I. Introduction

Not different from the United Stated experience, Panama have been facing the challenge of promoting the use of Alternative Dispute Resolutions (ADR) processes instead of litigation, in order to better serve the interests of parties in conflict and contribute to the decongestion of the law courts.

The United States has been through this course for more than three decades, while in Panama we just started 10 years ago and is still an ongoing process.

However, from the United States experience, I believe that there is a fundamental difference that needs to be addressed in Panama in order to effectively accomplish this task.

Law practitioners in Panama familiar with all the benefits behind ADR methods and distinctive techniques are the exception, while the majority of the law community still remains in Courts. Most Law schools in Panama have put less or no attention to the need to introduce courses on this field for law students.

I believe that there is an urgent need for Law schools in Panama to fight the cultural barrier that keep us from believing that ADR´s method are useless and that the only way to fulfill our client’s rights is by filing a suit before a court, by introducing in the law schools mandatory courses aimed to address ARD methods and its benefits as part of the law curricula.

In this article I will address this concern.

II. The utilization of ADR.-

Alternative Dispute Resolutions methods for deciding controversies between individuals, businesses and countries are largely used around the world and can be defined as any process or procedure other than adjudication by a presiding judge in court – litigation, in which a neutral third party participates to assist in the resolution of issues in controversy.

Although the use of different methods than litigation goes back hundreds of years; for example the Jewish "halakhah” mention of the preferred utilization of the “p'sharah” (mediation) to solve controversies, or the existence of an “referee” in a boxing match to keep the order and settle controversial punches; the application of more formal and regulated alternative dispute resolution procedures has grown around the world in the last 50 years.

The benefits of these more formal ADR methods such arbitration, mediation, conciliation, etc. have been broadly discussed by practitioners and scholars especially because they are expeditious, private, and generally much less expensive than a trial.

A. The United States

In the United States for example, a law reform movement initiated as a consequence of the political and civil conflicts of the 1960´s introduced a change of view of ADR´s as an effective tool to decongestion courts, avoid high legal fees and evade spending years in formal courts litigations. As a consequence, in the last 30 years, the United States has seen an increasing implementation of ADR´s in their legal system as a result of the combination of statutes and court rules.

As a consequence, today most United States law school has gradually been adding ADR to their curriculum and every day one can find more and more law reviews devoted solely to the study of alternative dispute resolution methods.

B. Panama

In Panama the situation is quite different. There are several organizations dealing with alternative resolutions methods, as well several laws endorsing alternative methods in order to solve disputes. The Panamanian Ombudsman Law for example, states that one of the Ombudsman main duties, is to mediate, whenever is required, on conflicts that arise between the public administration and citizens, with the aim of promoting agreements to settle those differences.

Voluntary ADR´s methods as such, are also recognized in other statutes. The Panamanian general rules of criminal procedure that will enter into effect in 2014 contain provisions encouraging previous conciliation and mediation for several felonies. The general rules of civil procedure also encourage previous mediation for almost all kind of civil cases .

On the other hand, some sorts of binding, not voluntarily conciliation are used for several labor disputes , as well as several family cases . Also, cases regarding product liability and products guarantee require previous binding conciliation before the Panamanian consumer protection agency.

On the other hand, other hybrids such as early neutral evaluation, mini-trial or summary jury trial existing in the United States are unknown in the Panamanian legal system.

Beside the special and particular statutes cited above, is Law Decree 5 of July 8 of 1999 (following the UNCITRAL model law) “By which the general regime of arbitration of mediation and conciliation is established” the one which formally introduces arbitration, mediation and conciliation as the general and formal option processes to solve controversies in Panama.

The ADR method contained in Law Decree 5 of 1999 most frequently used in Panama is arbitration. Arbitration is defined in article 1 as “an institution for the settlement of conflicts, through which one person submits a dispute with another person, to the opinion and judgment of one or more arbitrators, which will decide the controversy.”

The popularity of arbitration as an alternative processes among law practitioner in Panama, is due to the fact that it is the most known among business man. As a consequence commercial arbitrations are the most spread in the country. In fact, the only three formal Arbitration Centers existing in Panama are all business oriented . One is operated by the Panamanian Chamber of Commerce , the second by the Panamanian Chamber of Construction , and the third one by the Panamanian Accountant’s College .

Also, another important reason for its popularity is that arbitration is a third party process, were arbitrator(s) have the power to adjudicate or impose a solution. This is a characteristic that give Panamanian law practitioners some kind of “confidence”. This, I attribute to a cultural issue that we will discuss latter.

On the other hand, while mediation for example is a concept widely used in United States, it is less used among practitioners in Panama as a viable means to settle disputes.

In 2001, article 1005 of the Judicial Code was

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