Mediation in the Public Sector

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[author: Ximena Bustamante]

In countries with a continental European legal tradition, it is very rare for State institutions to undergo mediation procedures. And even if they do, it is highly unlikely that they would reach binding agreements that would resolve their disputes. Nonetheless, Ecuador is an exception. As a result of the enactment of the Arbitration and Mediation Law, there has been a significant development of mediation in which a public entity intervenes. Two ingredients have combined to make this development happen. On the one hand, there are regulations that allow and guide the State to solve disputes through mediation, and on the other hand, there are procedures that take into account the nuances of having public officials sitting at the negotiation table, based on the principles of mediation confidentiality and legality of public law.

Ecuador has broad experience in mediation with the State. The Mediation Center of the State Attorney General’s Office has witnessed a steady growth in these types of proceedings. In 2013, it received 421 requests for mediation involving a public entity. By 2019, that number approached 900 new requests. Mediations performed in other mediation centers throughout the country are not included in those numbers. It is important to note that mediation in Ecuador is voluntary; therefore, the fact that the parties choose this method demonstrates their confidence in it. Thus, both public entities and their private counterparts have succeeded in resolving cases that are extremely technical and complex, and involve significant amounts of money and widespread national interest.

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