New Mediation Law

Mandatory mediation proceedings were introduced in Argentina by Law No. 24,573, enacted in 1996 for a 5-year term, which was further extended for a new 5-year period by Law No. 25.287, and later extended by two consecutive periods of 2 years by Laws Nos. 26,094 and 26,368.

Mediation, as an alternative dispute resolution method, has shown to be very effective in IP matters in Argentina, with almost 40% of the cases reaching an amicable agreement.

The main terms of the new law are the following:

Certification of the mediation minutes
The mediation minutes issued and executed by the mediator, which must be filed upon submitting the bill of complaint with the courts, must be certified by the Judiciary, Security and Human Rights Ministry, as determined by the regulations of the new law (section 3).

Interdisciplinary performance
The mediator will be able to hold the mediation process together with the assistance of professionals who are familiar with the field related to the conflict subject to mediation. The mentioned professionals will have to register in a Special Registry to be established for that purpose. The assistance of these professionals, who will act under the responsibility and direction of the mediator, must be consented to by the parties (section 10).

Power of judges to derive the judicial process to mediation
Under the new law, judges may derive the judicial process to mediation. Judges will be able to order this at the hearing set forth in section 360 of the Procedural Code or “when they deem it convenient”. The legal terms in the judicial file will be suspended for 30 days from the notice to the mediator made by any of the parties and will resume upon expiration of the 30- day term, in the event the derivation takes place in the hearing set forth in section 360 of the Procedural Code or –if it takes place in any other opportunity- upon request of any of the parties once the 30-day term is due.

Effects regarding statutes of limitation and lapsing (“caducidad”)
The mediation proceedings suspend the statutes of limitation.
In the event of the mediation agreed to by the parties or proposed by the claimant, the suspension applies from the date of service of notice of the first hearing to the defendant or from the holding of the hearing itself, whichever may occur first. If the mediator was designated at random, the suspension operates from the date of appointment of the mediator by the judge. In all cases, the legal terms will resume 20 days after the date when the closing mediation minute is at disposal of the parties (section 18).

Lapsing (“Caducidad”) of the mediation
Mediation proceedings will expire if no judicial proceeding is initiated after one year as from the mediation process is closed (section 51).

Expiration (“Caducidad”) of injunctions
Injunctions ordered and executed prior to the initiation of proceedings, will expire within a 10-day term, if no judicial proceeding or mandatory mediation is initiated. The legal term to file the complaint will start running again 20 days after the date in which the mediator executed the mediation minute certified by the Justice, Security and Human Rights Ministry (section 54).

Enforceability
The agreement executed by the mediator and certified by the Judiciary, Security and Human Rights Ministry will be enforceable before the courts by summary proceedings.

Notwithstanding that the law will come into force on August 4, 2010, there are several matters that are yet to be defined through the regulation of the Executive.